Stewart Sharma Harsanyi Immigration Law Firm Blog

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 →

The Distinction Between Immigration Litigation and Application Work

There is a difference between immigration litigation and filing immigration applications. Litigation requires a different set of skills than completing applications and requires an advocate who can effectively present the client's case. Paul Aterman stated that there is a big distinction between the two and that the quality of representation in immigration litigation varies greatly. The standards for lawyers are more rigorous than for immigration consultants, and lawyers undergo three years of law school and an articling period before being called to the bar. There is a big difference between immigration litigation and completing and filing immigration applications. In the UK, there is a distinction between litigators (or barristers) and solicitors. Both of course are important but require different skills sets. Immigration hearings and appeals (and judicial review matters before the Federal Court) requires counsel that can effectively advocate and advance the client's matter. This was outlined by Paul Aterman in his statements to the Standing Committee on Citizenship and Immigration in 2017: Mr. Paul Aterman: Thank you for the question. The cases I mentioned where we've reported counsel to a regulator, whether it's the immigration consultant regulator or a law society, are what I would call the more egregious... 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 →

RPD Oral Decision Overview

How the RPD Member will be structuring oral decisions (based on training received when I was a RPO in November 2003): rpd oral decisions brought to you by Livescribe Read more →

One of the advantages of setting up this firm was to leverage the resources and depth of individuals who have spent years honing their craft within immigration law. I must say, our efforts this month have been impressive. The team has filed and perfected a number of applications for leave and judicial review (perhaps the most ever in a single month); each member has attended hearings before the Immigration and Refugee Board; and applications have been sent out - ranging from spousal sponsorships, humanitarian and compassionate applications, PRRA's, to work permits. Mountains of paper have been moved and I've just been advised that we have blown the hard drive on our poor photocopier, which must now be replaced ... 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 →

Plenary I - Friday, May 16, 2008 CBA Citizenship and Immigration Law CLE 2008

CBA CLE Plenary I - Major Trends in 2008 and Future Initiatives Unfortunately I've only walked in to hear part of Brian Goodman's (Chairperson, IRB) presentation. Mr. Goodman has gone over the Member "deficit" and of course the increased intake resulting in significant delays for applicants to have their day before the tribuanls of the IRB (RPD and IAD). He encouraged members of the audience to apply as additional appointments will be made. He closed with some of the achievements of the Board in the last little while - I believe that he was appointed interim Chair when the former Chair, Mr. Fleury resigned. Mr. Goodman seems well aware of the member deficit and appears genuinely interested in addressing this very important issue. It's clear that a lack of decision makers will adversely affect his ability to carry out his mandate as Chair of Canada's largest administrative tribunal. Unfortunately, the appointment process is out of his hands, and will depend largely on the actions of the Conservative Minister. James Sutherland (Director Temporary Foreign Workers) followed Goodman and discussed improvements in the temporary foreign worker operations and increased resources. He's mentioned a new position - integrity - which will oversee compliance... Read more →

Live Judicial Review Proceeding - CBA National Citizenship and Immigration Law CLE Conference

CBA National Citizenship and Immigration Law CLE Conference - May 16-17, 2008 Niagara-on-the-Lake, Ontario After sitting through an interminable workshop which was made intolerable not because of the panel, but because of an overzealous moderator who managed to turn an interesting discussion into a morass of her own irrelevant opinions – a rare opportunity has presented itself in the form of a live judicial review proceeding in the Grand Georgian Ballroom here at the Queen's Landing hotel. Mr. Justice Yves de Montigny presiding Counsel for the Appellants: Barbara Jackman Counsel for the Respondent: Marianne Zoric Barrack et al and the Minister of Citizenship & Immigration Issues involve: - threshold test for risk on a H&C application versus the assessment of risk in a PRRA application - best interests of the child - whether evidence/relevant factors were ignored/not considered - whether H&C policy guidelines were ignored/not considered Hopefully I don't sound like a legal groupie, but it's very exciting to be in the presence of the great Barbara Jackman. I'm sitting right behind her clients - the applicants, the second row behind counsel. Jackman doesn't appear to be wearing silk robes, worn by QC - which suggests that the title has... Read more →

Consequences of Misrepresentation – CBA National Citizenship and Immigration Law CLE Conference

CBA National Citizenship and Immigration Law CLE Conference - May 16-17, 2008 Niagara-on-the-Lake, Ontario May 15, 2008 I've just taken an opportunity to review some of the materials for the CBA Conference. Between watching the movie "Charlie Wilson's War" (which inexplicably shut down a number of times during the flight) and flipping through some of the papers I printed off, I came across a paper by Shoshana T. Green "Consequences of a Misrepresentation Allegation". Ms. Green basically confirms my experience that a dramatic trend has surfaced indicating both CIC and CBSA are pursuing permanent residents on grounds of inadmissibility arising from misrepresentation. Ms. Green notes several scenarios that result in investigation, a finding of inadmissibility and possible appeal to the Immigration Appeal Division. The first is the 'short marriage' which leads CIC to believe that the permanent resident originally arrived in Canada on the basis of a fraudulent marriage (aka 'marriage of convenience'). Once the now permanent resident divorces the partner of convenience (what Ms. Green calls a 'short marriage') and returns to their country of nationality for marriage and sponsorship - CIC attempts to move against the permanent resident for misrepresentation. Another scenario that CIC/CBSA follows... Read more →

IAD Workshop -- CBA National Citizenship and Immigration Law CLE Conference

CBA National Citizenship and Immigration Law CLE Conference May 16-17, 2008 Niagara-on-the-Lake, Ontario Workshop: Best Practices before the Immigration Appeal Division A paper prepared for the Conference by Shari A. Stein, A/Deputy Chairperson of the Immigration Appeal Division of the Immigration and Refugee Board is quite instructive. As a Member of the IAD, Stein provides invaluable advice to counsel appearing before the appeal division of the IRB. While the IAD hears four types of appeals, the most prevalent are sponsorship appeals - requests to reconsider the refusal of a visa officer who is overseas with respect to a family class sponsorship. One example is where a sponsorship of a spouse is refused by a visa officer who has found reason to believe that the marriage is not genuine (a marriage of convenience). In this case, the appellant has the burden - on a balance of probabilities - that either: the marriage was genuine or was not entered into primarily to facilitate immigration. Stein notes that the numbers of sponsorship appeals have been steadily increasing and that they comprise almost 80% of the cases heard before the IAD. Other appeals include an appeal from a removal order, which concerns a permanent... Read more →

FBI Clearance...

Prospective immigrants to Canada need to provide police clearances from every country in which they have resided in (6 months or more). In the case of US residents, this means both a state clearance (each state has its own procedure) AND a FBI clearance. Procedure for FBI Record Request follows: NB The following is lifted in its entirety from: FBI Identification Record Request page. Introduction An FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet, is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. If the fingerprints are related to an arrest, the Identification Record includes name of the agency that submitted the fingerprints to the FBI, the date of arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. All arrest data included in an Identification Record is obtained from fingerprint submissions, disposition reports and other reports submitted by agencies having criminal justice responsibilities. The United States Department of Justice Order 556-73 establishes rules and regulations for the subject of an FBI Identification Record to obtain a copy of his... Read more →