Stewart Sharma Harsanyi Immigration Law Firm Blog

New Office & Recruitment Agency Regulation in Alberta

Effective July 15, 2007, I will be leaving Caron & Partners LLP and starting my own firm at Suite 700 Bow Valley Square II (205-5th Ave SW) Calgary AB. You can reach me at (403) 705-3398 (after the 15th), and email at raj.sharma.immATgmail.com I gained some great experience working at Caron & Partners, but look forward to concentrating on immigration advocacy and helping find practical solutions to my clients' problems. I've reserved the domain www.immigrationpractice.ca (still under construction) for my official website. Check back often, this blawg will continue to be updated on a regular basis. I've been somewhat 'inspired' by the practice and specialization of Eugene Meehan QC (www.eugenemeehan.com) as well as other leading immigration practitioners such as Mr. Lorne Waldman, and will try to model my new practice accordingly. On a totally different topic, foreign workers, check out the cached Calgary Herald article here. It talks about some issues surrounding the massive increase in (unskilled) foreign workers that are arriving in Alberta and some problems - notably exploitation - that have been occurring. Recruitment companies that have been charging foreign workers should take note - not only do they(employment/recruitment companies/agencies) have to be licensed (Alberta Fair Trading Act)... Read more →

World Refugee Day

It's the 6th anniversary of World Anniversary Day. The turmoil in Iraq and Sudan have worsened conditions for thousands of innocent men, women and children. Canada continues to be one of the world's largest 'settlement solution' for refugees and internally displaced individuals. Citizenship and Immigration site here. Refugee claimants in Canada are required to establish conditions in his or her country of origin necessitate accessing Canada's protection. In addition to refugee claimants, H&C applications, appeals of removal orders before the IAD, and PRRA applications also benefit or require information about the country of return. Essentially the applicant is required to provide objective country condition documents that corroborate or buttress the claimant's allegations of hardship, risk and/or harm. Contained in this post is what I typically use in reviewing source country conditions. One interesting site that I've recently come across is at the Foreign Policy website (www.foreignpolicy.com) and a recent article on that site - 'The Failed States Index of 2007'. The article ranks failed states. In my opinion, there should be a strong correlation between success before the RPD and the ranking of the claimant's country of nationality. Not surprisingly, the rankings of failed states does not match the top... Read more →

National Citizenship & Immigration CLE Conference

Session 5B - The Compassionte Alternative: When and How of H&C Applications discussed the possible (and creative) uses of section 25 of the Immigration and Refugee Protection Act - a section that allows an exemption from (any) requirement of the Act. Ryan Rosenberg's paper is helpful and encourages counsel to think of various factors that can benefit their client's application. Appendix A of his paper (H&C Factors) lists factors to evaluate when deciding whether to pursue an exemption. Factors include (inter alia): Time resident in Canada/away from home country Evaluation of life in Canada vs. home country Ties to Canada vs. home country Best interests of children -- access to both parents, health care, schooling, emotional needs Worsening country conditions in home country Attempts to integrate Personalized risk Spousal abuse Custody issues Dying/sick family members Business operations employing Canadians Home purchase Employment history I'm happy to say that the practice at Caron & Partners is to properly prepare and submit all of our H&C applications, including consideration of the factors above and a thorough review of the client's personal circumstances and submission of supporting documents. Read more →

National Citizenship & Immigration CLE Conference

Session 4-B - Federal Court Practice: How to Make the Federal Court Work for You(!) was also quite informative. Panel members were Darryl Larson, Ron Poulton, Brad Hardstaff (Justice counsel - all of our Federal Court leave applications are sent to Brad's office in Edmonton) and Justice Michael Phelan. Both Ron and Justice Phelan were emphatic in underscoring the importance of cross-examination on affidavits. Essentially, both were surprised at how little cross-examination was being utilized by the Bar. It was clear that many cases could turn in the Applicant's favour on the answers obtained through the examination of (immigration) officers. Ron suggested that cross-examination of officers and questioning occur on the definitions in law and the regulations in question. He cited examples of where officers made admissions that were extremely helpful to the applicant's position. Justice Phelan stated that he "was suprised how little cross examination was used" and that it was a "particularly powerful tool" as cross examination adds "humanity to the case". He did note there was a small risk as cross-examination provides an opportunity for the officer to fill in the gaps of his/her affidavit. He also suggested that counsel should genearlly attack the subjective assumptions of... Read more →

National Citizenship & Immigration CLE Conference

Just returned from (beautiful) Victoria BC after attending the National Citizenship & Immigration Law CLE (Continuing Legal Education) Conference this weekend. Entitled "Shifting Sands: 2007 Canadian Immigration Law Update" the conference was a success (in my view) in providing practitioners with a heads-up on the important changes to immigration practice, policy and jurisprudence. Session 3A "Effective written and oral advocacy at the IAD" was especially beneficial, given the increase my practice has seen in appeals to the Immigration Appeal Division. The panel was composed of Phil Rankin, Gordon Maynard, Susan Kramer and Margaret Ostrowski QC (a Member of the IAD). I read both Phil's and Gordon's papers and have to say that they're very good and address the advocate's primary role for such hearings: proper preparation of the client. Member Ostrowski had a set of "kindly suggestions/do's or don'ts for practicing before the IAD. a. She kindly suggests that counsel (after a quick warm up of the client/appellant) spend the majority of time and effort on the decisive issue(s). She noted that there is at least 'one elephant' in teh room and it's preferable for counsel to deal with issues such as inconsistencies and address them (rather than Minister's counsel... Read more →

Arranged Employment Application/Opinion Steps...

APPLICATION FOR ARRANGED EMPLOYMENT OPINION Important: This application is only for positions under levels A, B, or 0 of the National Occupational Classification. The skilled worker must have at least one-year of work experience in a professional, managerial, or technical occupation under Canada’s NOC system. Also, the approval of AEO does not automatically allow the person to work in Canada. It will only support the skilled worker’s application for permanent residency in Canada. STEPS: 1. Employer makes a permanent offer in a skilled occupation. The letter of permanent employment must - Be on company letterhead - Be signed by the person responsible for hiring employees - State the title and salary of the position offered and the length of employment is open. The offer must consider the following factors: o It must be permanent o It must be genuine o Wage & working conditions are comparable to Canadians working in similar occupation o Employment is full-time and not seasonal. Note: Placement agencies, temporary help agencies, and firms of similar nature, unless they have established employer-employee relationship, are not included in the definition of employer. 2. Complete the HRSDC EMP 5275 3. Submit the completed form For applicants in Alberta, send... Read more →

AB Skilled workers and PNP link

Here's a new publication from the Alberta Provincial Nominee Program (Nov. 2006) entitled "Useful websites for skilled workers and employers." I think it is a very practical tool because it has links to the various Federal and Provincial immigration and employment programs as well as information particular to Alberta (trades, settlement and employment standards). http://www.alberta-canada.com/immigration/albertaImmigrationPromotion/files/pdf/UsefulWebsitesSkilledWorkersEmployers_Nov2006.pdf Read more →

Alberta PNP

I am attending a CBA section meeting on the PNP program right now. Looks like AB is moving toward the MB model but will avoid the 'population building' aspects and concentrate on skilled workers and employment. One good development is that they are planning to increase numbers to 5000+ by 2009/2010. Past quotas or targets were around the 400 mark. There are no waiting times for 'complete' applications and such applications can be processed within 2 months. The vast majority (90%+) of applications are for foreign nationals already in Canada on a work permits. The program is looking for true skilled workers (as defined by the NOC) but there is a pilot program for low skill workers in 1. Food/meat processing 2. Hospitality industry and 3. Long haul truck drivers. All in all, sounds like good developments for AB labour shortage. Read more →

Inland Spousal Sponsorship

Immigration lawyer Guidy Mamann raises a couple of interesting points in his article on the metronews.ca site. The article can be found here. In summary, the new policy on 'in-land spousal sponsorships' is not a blanket amnesty/remedy for people without status in Canada. Here's an excerpt: Those who think that because they are married to a Canadian they can’t be deported had better read this bulletin carefully. To qualify under this policy, the applicant would typically need to submit an application for permanent residence to the Case Processing Centre in Vegreville, Alta., under the “Spouse or Common-Law Partner in Canada Class” using form IMM 5002. Second, they will only be considered under this policy if the only reason they are in Canada illegally is due to a “lack of status.” The policy defines this term and includes limited grounds. If the applicant meets the criteria, the application can be processed in Canada. However, this doesn’t necessarily mean they will be allowed to stay here while it is finalized. In my practice I have found it helpful to alert CBSA (at least here in Calgary) that a spousal sponsorship has been submitted and that enforcement of removal not occur (administrative deferral).... Read more →

Colombian Refugee Claimants - FARC/ELN

Just had two successful hearings (both Colombians). While the Member of the RPD (Refugee Protection Division) had issues with whether the claimants would now be at any risk should they return to Colombia, the following documentary evidence was corroborative of the risk faced by anyone in Colombia fearing persecution/risk to life from the FARC/ELN - it's a RIR (Response to Information, basically research done by the IRB's Research Directorate): Download c16_col41770e.pdf Here are some notable excerpts: A number of Colombia experts consulted by the Research Directorate characterized the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) and United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC) as groups that are capable of carrying out operations throughout the country... The associate professor at Stetson University College of Law indicated that members of the FARC, ELN and AUC are present in "nearly all the urban centers of any note in Colombia" ... According to the Georgetown University adjunct professor, both the guerrillas and paramilitary groups often employ highly sophisticated data bases and computer networks. An individual who is threatened in one area of the country will not be notably safer by relocating to another. Depending on the nature... Read more →

Russian conscript

An interesting article for anyone handling an asylum/refugee case for a Russian conscript or conscientious objector to military service. BBC reports detail an account of a tortured conscript beaten so badly that amputation was necessary. BBC link: http://news.bbc.co.uk/1/low/world/europe/4691036.stm Read more →

Work permits

There are various ways to obtain temporary status in Canada. In terms of the traditional work permit there is much to be desired. The system is unnecessarily complicated - and creates unnecessary delay for both employers in need of workers and foreign workers trying to obtain employment in Canada. The work permit is used for almost all foreign temporary workers: from live in caregivers (nannies), cooks and for IT professionals. First the foreign worker (FW) needs a positive Labour Market Opinion (LMO). To obtain a LMO, the employer must provide appropriate proof of advertisement, job offer and a completed foreign worker application to HRSDC. This takes about 4-6 weeks (at least in Alberta). Once HRSDC has verified the job offer, the LMO is sent to the FW. Now the FW takes the LMO, completed Work permit application and supporting documentation (work experience letters, resumes etc) to the Canadian Embassy. An interview to assess the FW qualifications, experience, english ability, etc. is often required. The discretion of the Immigration Officer is quite broad. Experience suggests that the likelihood of approval depends largely on the country of origin. Generally speaking European countries are easier source countries than India, Pakistan, Bangladesh - unless... Read more →

"Emergency" Stay Applications

Stay Applications are perhaps the final attempt to stop the removal of someone from Canada. Once removal is scheduled by the CBSA (let's say for anyone with a valid deportation order issued against them), there are extremely limited options to 'stay' enforcement of removal (a Minister's permit would be one, a legislative stay another - finally, a stay by the Federal Court.) An extraordinary remedy, it requires the applicant to meet the tripartite test set out in Toth (serious issue to be tried, irreparable harm to the applicant if order not granted - and not compensable in damages, and balance of convenience favouring the applicant). The case law is not entirely consistent - for example, a couple of cases, KAHN and SHARMA, indicate that harm to the family unit constitutes irreparable harm, whereas other case law indicates that the irreparable harm must be personal to the applicant himself/herself). There must be an 'underlying' application for leave and judicial review (either an application for leave for a refused H&C, refused PRRA, or in some circumstances, refusal of the enforcement officer to defer removal). A good review of the process is Waldman's text. The Federal Court Rules must be referred to. In... Read more →

Humanitarian & Compassionate Applications

I just finished completing and submitting several "H&C" applications. "H&C" apps are what are known as section 25 or Humanitarian and Compassionate Applications. They allow for an exemption of the requirements under IRPA. In my practice, they are generally used for individuals without status in Canada. Most of the time this involves failed refugee claimants. Canada's immigration law requires that an individual must apply for immigration outside of Canada. An H&C allows for an exemption to that general rule, allowing the applicant to apply in-land. H&C's used to be also used for individuals with/without status who used to marry a Canadian citizen/permanent resident in Canada and wanted their application processed in land. There's a new procedure for that (in-land spousal sponsorships) that should be used. Anyway, the guide and forms can be found here. An immigration practitioner should also read the information contained in CIC's operations manual (referred to by H&C/immigration officers when reviewing their application). That can be found on the same site, here. The app has to be sent to CPC Vegreville (address on the checklist). Remember to follow the checklist, and include all necessary documents, including: Photographs (specific specifications) Forms Criminal record/clearances (from every country the applicant... Read more →

Inadmissibility Case - Radio Appearance

Just finished an on air interview with Dave Rutherford from CHQR Radio AM 770 - Jan 23, 2006 @ 10:30 MST (see link here). Dave had some serious concerns about how a US national (accused of gun smuggling and alleged to be a gang member) was released from immigration's custody here in Canada. A Member of the Immigration Division (Paul Kyba) found that the Minister (CBSA) didn't establish the foreign national inadmissible under section 36(2)(c). It seemed that Dave felt that if the US wanted someone, then Canada should simply oblige. I pointed out my strong feelings that Canada ought not to abdicate either its sovereignty or the sovereignty/jurisdiction of its Immigration Tribunals. If someone is on Canadian soil - Canadian law applies and we have a minimum duty of fairness towards that individual in the context of legal proceedings. While there is a low legal threshold - "reasonable grounds" (essentially more than mere speculation) - the Minister must still establish a legal basis for removing a foreign national from Canada. In this case, that low threshold was not met. Hopefully, our institutional safeguards remain in place so that we do not have another Maher Arar. Read more →

Admissibility Hearings

A recent admissibility hearing (and its result) has occasioned some media coverage (Download DHoang.pdf and/or here) and concern about Canada's immigration laws - especially its enforcement aspects. In a nutshell, IRPA has provisions allowing an Immigration Officer to make a report (s.44) to the Immigration Division. A Member of the Immigration Division, after reviewing the submissions of the Minister can find that a foreign national (or permanent resident) is inadmissible to Canada. Most of the inadmissibility sections in the Act deal with safety and security of Canadians. Unfortunately, the media assumes that because someone has been accused of a serious crime that that person ought to be removed from Canada, whether or not the Minister has established sufficient legal basis. In this case, allegations of gun smuggling appear to have hit a nerve given recent headlines of gun violence in Canada. While this client was the subject of a US Grand Jury Indictment, the evidence presented still did not satisfy the individual and specific requirements of the (in)admissibility provision raised by the Minister. Read more →

Federal Court "Appeals"

The Federal Court of Canada has jurisdiction over federal tribunals, such as the Immigration and Refugee Board, or decisions made by a representative of the Minister of Citizenship and Immigration (an Immigration Officer). This is not technically an "appeal" although many clients refer to it as such. In terms of immigration, the following two occasions may necessitate an application for leave and judicial review to the Federal Court: When a refugee claim has been denied; and When a Humanitarian and Compassionate Application (H&C) or PRRA application have been denied Time frames are extremely important. It is very difficult to submit or file documents that are late. For a refusal of a refugee case, a leave application must be filed within 15 days of receiving the decision. The same is true of a denied H&C or PRRA application. Once a leave application is filed, the Department of Justice (which represents the Minister of Citizenship and Immigration) files a notice of appearance. The applicant’s record must then be filed within 30 days of the filing of the leave application. The Federal Court decides (after receiving the Minister’s response) whether or not to grant leave to the application (which results in an appearance... Read more →

Emergency Stay Applications & Detention Reviews

A client required an extraordinary remedy – a Federal Court Stay Application, but also ended up requiring a Detention Review. It arose essentially because he was being removed from Canada. All remaining avenues (legal anyway) for remaining in Canada had been explored. The client had even married - however, his wife became unwilling to follow through with the necessary paperwork for an in-land Canada spousal sponsorship. Before taking on the matter, I advised the client that a stay from the Federal Court pending his "H&C" application was a long shot and that he ought to weigh carefully the considerable expenses involved. Beyond “appeals” of refugee claims denials or an H&C/PRRA application refusal, the Federal Court is also the final option to “stay” a decision for removal or deportation. Having recently gone through an exceedingly difficult Emergency Stay Application and a Detention Review (both on the same day), here’s a brief overview of a scenario that might occasion either or both: Let’s say that an individual has been in Canada illegally for a number of years. After pursuing the legal options to remain (refugee claim, H&C/PRRA etc) there will come a time for his or her removal. The foreign national can... Read more →

Spousal Sponsorship

Yet again, I am looking at a rejected spousal sponsorship. Yet again, the client will be subject to extraordinary delay and additional cost to appeal the rejected sponsorship to the Immigration Appeal Division. Notwithstanding the fact that my client (the sponsor) has given birth to a child of the marriage, the sponsorship was rejected. In this case, the rejection has come out of the Canadian High Commission in New Delhi. What’s interesting is the reasons for denial. But first, let’s overview the whole process. The Spousal Sponsorship Application A spousal sponsorship application is straight forward. It’s not necessary to hire a lawyer to complete the paperwork, unless you are unfamiliar with filling out paperwork and complying with CIC’s various requirements (Option C printout, letter from employer, photographs etc.). The first stage in the application process is the submission of the application to the Case Processing Centre in Mississauga. Here the sponsorship is assessed for eligibility (no minimum income requirements now, but other factors such as bankruptcy, outstanding undertakings etc.). After eligibility is established, the file is transferred to the Canadian High Commission in Delhi (Chandigarh cannot process applications for permanent residence). This is where the applications become subject to the... Read more →

Decrease in Refugee Claims and Acceptance Rates

As expected by most immigration practitioners, the number of refugee claims made at the Canada-US border has dropped significantly. The Canada–U.S. Safe Third Country Agreement came into effect on December 29, 2004, and statistics from CIC’s website indicate a significant decrease of 40 per cent drop in refugee claims since the inception of the Agreement. The Agreement requires an individual who lands in either country to make a claim in that country and does not allow the individual to proceed to the border to attempt to claim in the other country. There are limited exceptions to the Agreement. CIC is also reporting a substantial decrease in refugee claims at other ports of entry (mainly at the airport) that is not covered by the Agreement. There are a number of valid criticisms of that agreement found here and here). Canada’s refugee and asylum history has displayed “refugee trends” that shift and change depending on CIC’s current policies and of course eco-political realities of their home countries. In the past, a number of Central American (El Salvador, Nicaragua) and South America (Peru) countries were major refugee source countries for Canada until political stabilization and a restoration of law and order occurred in... Read more →