Stewart Sharma Harsanyi Immigration Law Firm Blog

Technology and the Changing Face of Justice

20 years or so ago I started my career in immigration law -as a refugee protection officer. Even then the IRB/RPD was faced with increasing demand and limited resources. Our little Calgary office had to take on files from Toronto, Montreal and other offices. At that time we were able to do so with expensive polycom videoconferencing equipment. Even then there were concerns on the part of counsel and claimants; technology at that time was not as smooth shall we say as present. Fast forward to the pandemic and the cancellation of hearings for months. I remember those days coming to the office with zero traffic and looking at the see-through office towers of downtown Calgary trying to figure out how the practice of immigration law will adapt. Hearings re-started and the IRB and Fed Crt adopted and adapted to video conferencing. After conducting 100+ hearings in the last couple of years in this manner it's sometimes difficult remembering how we used to walk over to the depressing brutalist inspired architecture (and apparently asbestos filled) of Harry Hays to run hearings there. I assume remote hearings are here to stay and they have added not detracted from our ability to... Read more →

Discussing the Bhaona Mohamed case, the IAD flouting Justice Ahmed's Decision, and the Role of the Federal Court, on the Borderlines Podcast

I went on Borderlines, the excellent immigration law podcast, to discuss the recent decision of Justice O'Reilly that will result in a third IAD hearing for Bhaona Mohamed, a frontline LTC healthcare worker that sought humanitarian relief to overcome a breach of the residency obligation. The transcript is below. Borderlines · #87 - Visa Officers and the IAD Ignoring or Disagreeing with Federal Court, with Raj Sharma Borderlines number 87 discussing Bhaona Mohamed Steven Meurrens: Hello and welcome to Borderlines. A podcast for the discussion of Canadian immigration law. I'm Steven Meurrens. In Episode 69 of this podcast, recorded about a year ago, Raj Sharma was our guest to discuss his case, Mohammed v. Canada Citizenship and Immigration 2022 FC1. There in setting aside the refusal of an immigration appeal division decision Justice Ahmed stated, "As a healthcare aide, the applicant risked her own health and safety to support health comprised and aging individuals. She is applying the very skills she acquired in Canada over a decade ago at a time when they're desperately needed while not knowing if she herself will be able to stay in Canada. To frame this commitment and these contributions as only a "moderately positive"... Read more →

Turf Wars: Lawyers and Immigration Consultants

Vic Satzewich wrote a book some time ago, Points of Entry, that lifted the curtain on overseas visa processing. While now somewhat dated, it provided great insight to those of us on the other side of that curtain. As lawyers we saw the outcome and to understand the process had to reverse engineer CAIPS/GCMS notes, decisions, and what our client’s told us what happened during their interviews with visa offices. That type of insight is invaluable; both Bjorn and I were Officers but with the IRB and IRCC in-land. Satzewich has continued to write in this area. In a more recent article, published in the Canadian Review of Sociology, he “examines the 33 year-long jurisdictional dispute between immigration lawyers and immigration consultants…” concluding, in part, that the legal profession were not able to kick the consultants out (my wording, not his) because lawyers did not speak with one voice at the 2017 Standing Committee hearings on this matter. Satzewich examined the testimony of the nine lawyers that appeared; on one side was Ravi Jain and Kathleen Terroux of the CBA on the other were “consultant friendly” lawyers including myself, Lorne Waldman and Richard Kurland. Jain advanced a “hard-line eradication” position... Read more →

Challenging Visa Office Refusals at the Federal Court of Canada

The first time I appeared before the Federal Court was almost 20 years ago. Things have changed -in terms of filing procedures, remote hearings and jurisprudence from the Supreme Court with respect to deference and the reasonableness standard. Other things have not changed. One perennial issue is apparent divergence in the Court. That divergence is perhaps inevitable: one judge’s decisions do not bind another. One judge's threshold of “reasonableness” (invariably subjective despite the efforts of the Supreme Court) can vary from another's, and thus lead to different outcomes. Thus, two cases with similar facts might have different outcomes, understandably leading to confusion or frustration for clients. For example, prior to the amendment to the Citizenship Act, there was divergence in case law relating to the requirements for citizenship, such as the metaphysical test of where an individual's soul lies versus the strict physical presence test (“two feet on the ground” test). That divergence has now been put to rest with the strict physical presence now the black letter of the law. While this divergence was apparent on some select matters in the past, one can speculate that the Federal Court has become further divided due to the influx of new... Read more →

Immigration Detention

There was welcome news and developments concerning Canada's troubling use of provincial jails to house foreign nationals including refugee claimants in Canada. Ontario has announced that it will stop allowing the Federal Government to use its jails for immigration detainees. It will take effect in a year, but it's a development long awaited by stakeholders. From the Toronto Star: Canada’s use of maximum-security provincial jails to hold immigration detainees — who are not charged with a crime or serving a sentence, but can be detained indefinitely — has for years drawn condemnation from human rights organizations, including the United Nations. ... It was the subject of a recent Toronto Star investigation, which found more than 80 per cent of immigration detainees held in Ontario’s jails last year were detained solely on the grounds they were “unlikely to appear” for their deportation, not because they were considered dangerous. In more than half of the five dozen cases reviewed by the Star, detainees had reported mental health issues, and they were often subject to punishing conditions, including frequent lockdowns and solitary confinement. The basis most utilized to justify detention was that the foreign national/person concerned was unlikely to appear or is a... Read more →

All Things Mandamus -Excerpt from Borderlines

Summary: Raj Sharma, a lawyer, explains that mandamus (an application to the federal court to compel IRCC to do something) is more of an art than a science. He says that the trigger for mandamus should be pulled when there is less discretion involved in the underlying application. He does not worry too much about stated processing times and looks at the type of the application, the needs of the client, and the circumstances. He suggests that mandamus can be a very helpful tool, but it may have to be done multiple times and it depends on the particular case. He also says that sometimes, it is better to wait a few months before filing mandamus. Steven Meurrens: When should someone file mandamus? In speaking with lawyers, I've heard everything from, not when people should, but what people's practice seems to be. If the processing time has exceeded stated processing by two x, if it's even a day over or even any time, what's the downside? Oh, and for those, a mandamus is an application to the federal court to compel IRCC to do something. In the visa context, it's usually to conclude processing. Raj Sharma: My philosophy is that... Read more →

Explaining Divergence or Variance in Federal Court Case Law to Clients

Summary: Raj Sharma is discussing the difficulties in explaining the contradictions in Federal Court decisions. The decisions made by the Federal Court Judges can be inconsistent, and clients come to lawyers looking for certainty and strategies to win their case. However, the approach of various judges can be different, making it challenging to advise clients on their chances of winning. This is also a problem in explaining the discrepancies in approach between various Judges at the Federal Court. Federal Court practice is complex and even winning at the Court does not mean that the application will be ultimately granted. How do you explain Federal Court decisions that seem to contradict one another? It's not easy. Clients retain our services given our litigation experience and record. A decision is made to challenge an overseas TRV refusal. We know from the case law that Officers in this regard have greater margin or deference than other decisions. That being said, an Officer must act reasonably and fairly. Getting leave is not easy and while we do win more than our fair share at the Federal Court, it's not always easy explaining the discrepancy in approach between various Judges at the Federal Court. Here's... Read more →

Ask an Immigration Lawyer Anything -Borderlines Podcast

I had a great time talking about a wide number of issues in immigration law with my friends Steven Meurrens and Deanna Okun-Nachoff on the excellent Borderlines podcast. Summary: In this episode of the Canadian immigration law podcast "Borderlines," hosts Steven Meurrens and Deanna Okun-Nachoff interview Raj Sharma, a Calgary immigration lawyer. They answer listener questions related to immigration law. They discuss the challenges in advising clients on divergent case law, processing delays, the possible replacement of immigration lawyers by AI, and the state of the immigration law practice. They also touch upon the complexities of the federal court practice and the uncertainty that often comes with it. Topics: 1:30 - Addressing divergent case law 15:30 - Globe and Mail story about waiving TRV eligibility requirements to clear backlogs 23:00 - Chat GTP replacing lawyers and visa officers 31:00 - Processing delays 36:00 - Mandamus 42:00 - Open work permits for spouses of Canadians 56:00 - C-10 work permits and Express Entry 57:00 - A world in which GCMS notes are provided instead of refusal letters 1:00 - Is the practice of immigration law getting less fun? Borderlines · #80 - AMA with Raj Sharma on Processing Delays, Mandamus and... Read more →

The Removal Order and the Deferral Request...

"If the Canada Border Services Agency is interpreting section 48 of the Immigration and Refugee Protection Act which now requires removal "as soon as possible" rather than "as soon as practical", so that the only way the removal can be stopped is by court order, then so be it! What happened to common sense?" Begum v. Canada (MCI) [2013] FCJ No. 658 para 16. The Deferral Request There will come a time when your client has exhausted all avenues in obtaining status and putting off the enforcement of a removal order. There are various statutory, regulatory and potential administrative stays against enforcement of a removal order. One day, your client will be called in to meet with an enforcement/removals officer. They should be cautioned; if they give the officer the impression that they will not comply with removal they will be detained. I wrote about detention and the stay of removal a long time ago. Here, I will mainly discuss making a deferral request to that removals officer. The deferral request should only be made in certain circumstances; officers have limited discretion in granting such requests --it is, after all, their job to carry out enforcement. When an applicant is... Read more →

Immigration in the Time of COVID-19: Issues and Challenges

The Standing Committee on Citizenship and Immigration (CIMM) has conducted a study on the impact of COVID-19 on the immigration system and found that there has been significant disruption to the system. The use of technology, such as digitizing processing streams, virtual interviews and ceremonies, and virtual hearings has been supported by numerous witnesses. The study recommends keeping these innovations in place after the pandemic is over. The use of remote interviews and hearings can increase efficiency, flexibility, and fairness, and security and trackability concerns can be mitigated. The report calls for transparency and oversight in the process. The author hopes that IRCC continues to improve the means by which individuals come to visit, study, work, seek protection, and live in the country. It was an honour to contribute to the study by the Standing Committee on Citizenship and Immigration (CIMM) on the impact of COVID-19 on the immigration system. The final report can be found here; Download Immigration in the time of COVID-19 Report of the Standing Committee. There has been massive disruption to our immigration system. Disruption very often leads to change; it seems clear that IRCC and the other stakeholders within the immigration system will have to... Read more →

Presentation to Immigration Seminars -February 2021

The Procedural Fairness Regime -Borderlines Podcast

Borderlines · #48 - Responding to Procedural Fairness Letters, with Raj Sharma I had a lot of fun joining Steven Meurrens and Deana Okun-Nachoff on their excellent podcast, Borderlines. We got a lot off our chest, and vented about a number of issues. We started with the Procedural Fairness Letter and went on to talk about Officer bias/tunnel vision among other interesting topics. Transcript follows: Steven Meurrens: Hello, and welcome to the Borderlines Podcast, a podcast for the discussion of Canadian immigration issues. I'm Steven Meurrens. We are joined today by Raj Sharma, a partner at the Calgary law firm, Stewart Sharma Harsanyi. Raj previously appeared on Borderlines Podcast, Episode Three, about marriage fraud. And I encourage you to listen to that episode if that's a topic that interests you. I think it was one of the most substantive discussions about marriage fraud and immigration that you will find on the internet. Today, what was initially supposed to be an episode about Procedural Fairness Letters, turned into a wide-ranging conversation that can perhaps best be described as getting things off our chest. Raj, Deanna, and I discuss issues of possible bias against people from Punjab, unreasonable documentation requests, responding to... Read more →

Immigration Predictions 2021

Ah January. The month of making resolutions and predictions. Perhaps neither exercise is of real value. If 2020 has taught us anything is the futility of making predictions or assuming that the year will unfold as other years that have passed. Yet humans are creatures of habit and tradition. 2020 was like a storm that impacted every business line of immigration. 2021 will be the first year for rebuilding. However, it's not just systems and backlogs that need to be addressed: the government has set aggressive settlement targets -and it remains to be seen how those targets can be met with a still-hobbled system. One can only assume that CRS will drop and that will benefit the Canadian Experience Class. One can only hope that a pathway to PR will be created for essential (but low skill/wage) workers in Canada that have been on the front lines during the pandemic. As employers recover, so will business immigration... Sponsors of spouses and common law partners have managed to get the attention of law makers. One can only hope that officers are facilitative towards visitor visas for long suffering partners awaiting reunification with their loved ones -of course if overall processing was... Read more →

Immigration Policy in the time of COVID-19 -November 6, 2020

Mr. Marc Serré: Great. Thank you very much. … Mr. Sharma, you mentioned modernization, digitalization and biometrics. The department has, especially with COVID now, realized the importance of this, but it's been an issue over the last 20 years, and I want to ask you, because you touched upon this a bit, in a minute or less here, what more we can be doing by IRCC to further digitize and modernize the system. Mr. Raj Sharma: There have been great strides by IRCC to digitize, so APRs, applications for permanent residence, and express entries are already electronic. As Mr. Waldman said, there are many applications that are not. We've already moved the TRVs, the temporary resident visas, online as well. We've moved most APRs online as well. There are still paper applications for spousal sponsorship, and for humanitarian and compassionate applications. There is probably a good 20% to 25% more that can be done here, but we've made good progress, I think, on digitization. … Mr. Marc Serré: I want to thank the witnesses for their balanced approach and their continued offer to work with the federal government to improve this. This is not an issue involving party lines. We... Read more →

Immigration Policy in the Time of COVID-19

It was an honour appearing before the Standing Committee on Citizenship and Immigration on November 6, 2020. As was the case in my previous appearance before this Parliamentary Committee (in 2017) I spoke just before Lorne Waldman -the Dean of Canadian immigration lawyers. Here are some of the responses from the first round of questioning (my opening statement can be found in an earlier post). Mr. Jasraj Singh Hallan (Calgary Forest Lawn, CPC): Thank you, Madam Chair, and thank you to all of the witnesses for coming today and sharing your thoughts and experiences. I want to touch on some of the points that some speakers highlighted. We know this pandemic has brought many things to light. I was always taught that work is work. Work carries a lot of dignity and honour, and we should recognize people's work as such. Now, as to whether work is defined as “skilled” or not, we've seen throughout this pandemic that industries such as some of the ones that were listed—transport, caregiving, manufacturing and processing—carry so much importance. Before the pandemic, they sometimes weren't given the respect they deserved. We've learned that not only is this work important and considered front-line work, as... Read more →

Making a Refugee Claim? The Top 6 Mistakes

Making a refugee claim can be a complex process and it's important to avoid common mistakes. Mistake #1 is not researching or seeking help from an experienced refugee lawyer. Mistake #2 is failing to prepare thoroughly for the hearing. Mistake #3 is failing to provide corroborative evidence. Mistake #4 oddly enough is providing too much evidence. Mistake #5 is not understanding the nature of a refugee claim. Mistake #6 is hiring an inexperienced immigration lawyer or consultant. An experienced lawyer will help increase the chances of success and make the process smoother. Good preparation, understanding of the process and choosing the right representation can help increase the chances of a successful outcome. Making a Refugee Claim? Here are the top 6 mistakes that we’ve seen as former Refugee Protection Officers and lawyers with more than a decade of legal practice. Mistake #1 -making a claim without first doing your research/talking to an experienced refugee lawyer. You may think that your claim is straightforward. You may think that you do not need any assistance. You would be wrong. The statistics are unambiguous. Those individuals that have the assistance/guidance of experienced refugee lawyers are far more likely to succeed in their claims.... Read more →

What's Old is New Again -the 30th Anniversary of the Immigration and Refugee Board

Summary: The Immigration and Refugee Board (IRB) of Canada has been in operation for over 30 years, since its creation in 1989 as a result of Bill C-55. Despite changes in legislation and procedure over the years, many of the challenges faced by the IRB remain the same. There is a large backlog of cases, with over 71,000 cases currently pending. The modern era of immigration and refugee adjudication has seen some improvements, such as the implementation of remote hearings, computerized systems and training programs, but it is still hampered by administrative issues such as a lack of coordination between different government agencies and a high rate of postponed hearings. There are a number of silver linings including the fact that the Board is no longer "larded" with political appointees. It’s a cold and snowy Monday night on January 2, 1989; the Immigration and Refugee Board has been in operation for one business day; Brian Mulroney is Prime Minister ; there are ten centimeters of snow on the ground in Ottawa; the Canada-United States Free Trade Agreement came into effect on the same day as the Board; and David Matas is about to publish a book titled “Closing the Doors:... Read more →

Mandamus to Compel Action on Your Citizenship File

My client was facing enforcement action by CBSA. It was a years long, seemingly interminable investigation as to her first marriage. After securing a response to an Access to Information Request (which yielded interesting details, including the fact that her citizenship application had been "put on hold") I filed an Application for Judicial Review and sought the prerogative writ of mandamus, which, in essence, compels the Respondent to do something that they're supposed to do (in this case, make a decision on that investigation). My thinking was that if a decision is made to close that file, then processing on the citizenship will follow; if a decision was made to write and refer a report alleging inadmissibility, then my client would be able to challenge that at a hearing before the Immigration Division and, if necessary, appeal any removal order to the Immigration Appeal Division. Leave was granted; at the hearing in July of this year it was clear that the presiding Justice was reluctant to grant mandamus in this sphere; he urged me to challenge the decision to suspend processing on the citizenship application instead (based on just one line that survived redacting in hundreds of pages). The client... Read more →

Appeal from Spousal Sponsorship Refusal

Had an appeal against the refusal of a spousal sponsorship. The hearing was held today via videoconference with the Board Member. In reviewing case law the night before, the following seemed to be helpful: As in all other cases of this nature before the Division to date, the two prongs of the "bad faith" test articulated in Regulation 4 are to be read conjunctively, as per the French version of the Regulations. In order for a foreign national to be caught by section 4 of the Regulations, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Act. This approach, of the two available, is most favorable to the appellant. In order to succeed on appeal, the appellant need only establish one of the prongs of the test has not been met. The onus is on an appellant to demonstrate that the principal applicant is not caught by the excluding section of the Regulations. In today's case, an argument could be made that the marriage was entered into by the overseas spouse for the purpose of acquiring a status or privilege... Read more →

Plenary II - Saturday, May 17, 2008 CBA Citizenship and Immigration Law Conference

Plenary II Canada & The World - Targets/Policy Directives - Are we Internationally Competitive? Howard Duncan Executive Head (Ottawa) Very interesting discussion by Mr. Duncan, who finds that overall competition for skilled workers/immigrants is not necessarily between us and Europe - but sees China, India and Brazil as emerging competitors (ie as the economies of those countries continue to grow, potential immigrants will choose to remain, rather than leave for 'greener pastures' of Canada). Duncan refers to a term - Transnationalism - defined as a state where people whose bodies are in one country, but minds, souls, bank accounts are in another country: While these individuals reside in Canada, they are constantly in touch with their country of origin - sometimes through the use of satellite tv and news and daily newspapers (sometimes even printed in Canada). Transnationalism is yielding very strong enclaves that are strong financially - don't have to think of them as enclaves of poverty - they are middle class and institutionally complete and lower cost location for integration - settle into immediately - immigrants are now settling directly into suburbs rather than passing through inner city - should view transnational enclaves as competitor to integration -... Read more →