Stewart Sharma Harsanyi Immigration Law Firm Blog

The Rise of Refugee Claims from Modi's India

The following is a transcript of a lengthy interview on September 25, 2023, much of which was for context, some of which utilized for a CBC National story on the dramatic rise in refugee claims from India coinciding with the rise of Modi and the BJP. Interviewer: Thanks so much for taking the time to do this interview. Just to start, I was wondering if you could introduce yourself and your background. … Raj Sharma: My name is Raj Sharma. I'm an immigration lawyer based out of Calgary. Many years ago I was a refugee protection officer with the Immigration Refugee Board. Since that time I entered private practice, authored a text on immigration called Inadmissibility and Remedies and I teach immigration law formerly at the University of Calgary Faculty of Law and more recently at Queens University Faculty of Law. Interviewer: Excellent. Thank you. And just what is an immigration corrections officer? What is that? Or enforcement officer, what is that? Raj Sharma: Well, the Canada Border Services Agency was created after the watershed of September 11, 2001 that had major ramifications for various countries around the world including Canada. We got an act called the Immigration Refugee Protection... Read more →

Roxham Road

Maureen Silcoff, a former member of the IRB and past president of the Canadian Association of Refugee Lawyers has written a timely article that provides insight regarding Roxham Road. She writes that the increase in refugees arriving at Roxham Road, a crossing point between the US and Canada, has caused a stir in Canada. However, the rhetoric surrounding the issue is misplaced. Entering Canada through Roxham Road is not a guaranteed route to asylum, but rather the beginning of a rigorous process. Furthermore, Canada has a long history of protecting refugees who fear persecution based on religious or political beliefs or gender-based violence. The Safe Third Country Agreement (STCA) is at the heart of the issue, as it bars refugees from entering Canada through official ports of entry. Instead of calling for the STCA to be modernized, the government could use Article 6 of the agreement, which permits public policy exemptions to expand the categories of people who can enter through official ports of entry. Such exemptions could reduce pressure on Roxham Road, disperse people from coast to coast, and reduce entry through Quebec, allowing for settlement services across the country. Contrast Ms. Silcoff's article with recent news that Premier... Read more →

Refugee Protection Too Often More Theory than Practice

This Aljazeera article discusses the situation of Yemeni asylum seekers on South Korea's Jeju Island. More than 550 Yemeni nationals have arrived on the island since April 2018, seeking asylum and refugee status. Jeju Island offers visa-free arrival for various nationalities, including Yemen, to boost tourism. However, the arrival of the Yemenis sparked online outcry and protests, and the asylum seekers were termed "fake refugees" because they were mostly male, well-dressed, and had smartphones. While South Korea has signed on to international conventions regarding refugees, theory is far different than practice. South Korea took Yemen off the list of countries that were offered visa-free entry onto Jeju and announced plans to tighten the country's Refugee Act. Critics saw this move as supportive of the protesters' demands. The article also includes an interview with a Yemeni asylum seeker named Mohammad Salem, who talks about his journey from Yemen, his three years in Malaysia, and his feelings towards South Korea, Islamophobia, and discrimination. He had a good life in Yemen, working at Sanaa airport and having a small business. But the war left him in a bad shape, and he had to flee to Malaysia. He found a dishwashing job at a... Read more →

Afghan Resettlement Options

SUPPORTING AFGHAN NATIONALS To help address the growing humanitarian crisis in Afghanistan, the Government of Canada has announced two special immigration programs to help resettle Afghans to Canada. You may be eligible for one of two special programs: Immigration program for Afghan nationals, and their families, who assisted the Government of Canada Humanitarian program focused on resettling Afghan nationals who are outside of Afghanistan and who do not have a durable solution in a third country, which will include people such as: women leaders human rights advocates LGBTI individuals journalists and people who assisted Canadian journalists immediate family members of one of the above extended family members of previously resettled interpreters who assisted the Government of Canada Note: the full program requirements have not yet been released by immigration Canada. We are closely monitoring updates to both of the programs as they become available. Contact Qimat Zafar via email [email protected] or telephone (587) 700-7461 to learn more. Read more →

The Refugee Claim and Family Law Proceedings

What role does a pending refugee claim play in family law proceedings? In the case of M.A.A. v. D.E.M.E 2020 ONCA 486, the appellant mother brought her three minor children from Kuwait to Canada without the respondent father’s consent. On arrival in Canada, she sought refugee status for herself and the children. She claims she fled an abusive relationship that put her safety and that of her children at risk of serious harm. The father denied the allegation and claimed that she wrongfully kidnapped the children. The father applied for an order requiring that the children be returned to Kuwait. Subsequently, the mother asked Ontario to exercise jurisdiction to decide her custody claim. The basis for her claim was s. 23 of the Children’s Law Reform Act, R.S.O., 1990, c. C.12 (CLRA), which, despite other jurisdictional limits, permits an Ontario court to exercise its jurisdiction to make custody and access orders where the child is physically present in Ontario and the court is satisfied on a balance of probabilities that the child(ren) would suffer serious harm if removed from Ontario. The application judge found that Ontario did not have jurisdiction under s. 23 because there was no risk of serious... Read more →

Identity and the Refugee Claim

Identity -basic personal identity -is of paramount importance in refugee claims (and indeed, the entire immigration system). Section 106 of the IRPA requires the IRB to take into account whether the claimant possesses acceptable documentation establishing identity: Credibility 106 The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation. Certain claim profile present challenges in terms of providing identity documents. Refugee claimants from Somalia usually have to present alternative forms of identification and identity verification since passports and driver's licenses are difficult to obtain. If identity is in question, the Minister (CBSA) can intervene. Rule 29 of the RPD sets out the following: Notice of intention to intervene 29 (1) To intervene in a claim, the Minister must provide (a) to the claimant, a copy of a notice of the Minister’s intention to intervene; and (b) to the Division, the original of the notice, together with a written statement indicating how and when a copy was provided to the claimant. Contents of... Read more →

RAD -Appeal allowed and Protection Granted -Zimbabwe

One of the challenges for Counsel and Claimant is a Member obsessed with minutiae, hunting for microscopic anomaly in testimony and documents. Our client came to us after her refugee claim (against Zimbabwe) was rejected. She was castigated, among other reasons, for not knowing the street address of the MDC headquarters in Harare. Thankfully the appeal was accepted and protection was conferred. Read more →

Making a Refugee Claim as a Member of the MDC -Zimbabwe

I've been dealing with refugee claims from Zimbabwe since I was a Refugee Protection Officer with the RPD (more than 17 years ago). The more things have changed the more they've stayed the same. The situation in Zimbabwe now, post-Mugabe -and to use a Zimbabwean aphorism is essentially: same taxi, different driver. You can still succeed with this claim profile, but the claimant must have both knowledge and activism. This threshold likely varies depending on the RPD Member. An excerpt from a recent, successful claim I assisted on: "numerous questions for 45 minutes. His evidence was repeatedly tested…Questions touched on MDC, his role in MDC, his father's role in MDC, his assistance to his father in the context of an election for a district counsellor for MDC, details on his own participation at the front of a mass protest in … etc." After the Member found the claimant credible (and the explanations for the gaps in his BoC plausible) then moves on to the documentary information -like the Australian Country Information Report indicating that risk to MDC members is likely higher for those involved in direct political activism. Reference is also made to Human Rights Watch and other corroborative country... Read more →

Exclusion from the Refugee Convention -Article 1E

It was a pleasure appearing before Justice Mosley of the Federal Court this last Monday. We challenged a decision of the Refugee Appeal Division that excluded our client from Refugee protection because of his permanent residence status in Italy. Like all exclusion clauses Article 1E is a complicated analysis and one that lends itself to error. Reading Professor Hathaway it is clear that he is no fan of how the exclusion clause has been interpreted in Canada and other countries such as Australia and the United States. On its face the exclusion clause is meant to prevent forum or asylum shopping. The Article states that the (Refugee) Convention doesn't apply to those recognized as having the rights and obligations which are attached to the possession of the nationality of the putative country of exclusion. It is clear that Professor Hathaway is concerned about the expansion of exclusion over time; an assessment that elevates form over substance. H Hathaway's take: those rights and obligations mean essentially assimilation that the individual has been integrated in the putative country --it's for those that truly enjoy treatment genuinely equivalent to that afforded to nationals and the only ones that should be excluded are truly... Read more →

Presentation to the University of Alberta (my alma mater) International Student Association -a 20,000 foot overview of the refugee adjudication system

Refugee Claims and Exclusion Clauses

Exclusion Clauses – Article 1(E) Certain individuals are excluded from the grant of protection. These are the exclusion provisions; some don’t need Canada’s protection, and some don’t deserve Canada’s protection (Articles 1F..) In the case of the former: in order to be excluded from the Convention -a claimant’s status in another country must give the claimant rights that are substantially similar to the rights possessed by nationals of that country (the right to return, to work, to study, and to have access so social services). This usually arises when a claimant makes a claim against their country of nationality but has status in another (something akin to permanent residence). A claimant can be denied protection if they abandon or reject status in that third country. This prevents claimants from forum shopping. Refugee protection is not for persons “who simply prefer residence in one country over another”. Either the CBSA (which represents the Minister) or the Board raise this issue. If the Minister is involved then he sends a “Notice to Intervene” and may participate in person to question the claimant (or simply file documents to this effect). Article IE sometimes raises credibility concerns as well. If a claimant taks actions... 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 →

Losing Status after Winning Your Refugee Claim

Winning a refugee claim does not guarantee permanent status in Canada. There are ways to lose protected person status, even after obtaining Permanent Resident status or citizenship. The Canada Border Services Agency (CBSA) can initiate either a vacate or cessate proceeding. A vacate looks at whether there was a material misrepresentation at the time of the refugee claim, while a cessate focuses on actions taken after the grant of protection, such as returning to the home country. Both proceedings can have serious consequences and require the expertise of experienced lawyers. Just because you win your refugee claim doesn't mean you are home free. There are ways to lose your protected person status -either before your PR status or even after (and even citizenship can be revoked). I'm off to Edmonton today-vacate hearing tomorrow. The CBSA can initiate either a vacate or cessate proceeding. A vacate in essence is retrospective- it looks to whether there was a material misrepresentation at the time of the refugee claim; whether there remained grounds to justify or support the grant of refugee protection -or if not and if the application is allowed the grant of status is nullified and set aside. Basically but for the... Read more →

Interview -Discussing the Auditor General Report on the Refugee Backlog Thursday, May 9, 2019

Starts at about 5:30 minutes in Danielle Smith: …you probably saw that the press conference, a couple of days ago from the Auditor-General talking about the myriad problems that we have at the federal level, but this is one that we have known about because my guest has been raising the alarm about this ever since at the crisis of people coming across the border illegally, saying, "We just do not have the ability to handle this influx. We do not even have the ability to handle the existing refugees that we are trying to process, let alone this new influx." And it sounds like everything he has been telling us is absolutely true. Danielle Smith: Joining me now to see whether we are any closer to solutions is Raj Sharma, Calgary Immigration Lawyer. Danielle Smith: Raj, thank you so much for being with me today. Raj Sharma: Good morning. Danielle Smith: So let us talk a bit, if we can, about the Auditor-General report. What stood out for you on it? Raj Sharma: Well it was not surprising, I do not think. I think what stood out, for me, is that we are trying to fix a plane while... Read more →

Can the Liberals Keep their Word on Syrian Refugees?

25,000 Syrian refugees by the end of 2015. It is a bold promise. The Harper GovernmentTM stingy, niggardly approach to the greatest refugee and humanitarian crisis reared its head during the interminable election (an early "October surprise", and one of a few). Apparently part of the reason for the extra-long election was to pounce on Mr. Trudeau making a gaffe or two or three. Instead, it was the CPC that made unforced errors. Chris Alexander's response to an innocuous question by Rosemary Barton was, at the time a "near-catastrophic negative" and, with the benefit of hindsight, we can remove the qualifier. I discussed the changes that the CPC made to privately sponsored refugees and Mr. Alexander's performance to date on the Roy Green show. Transcript: Speaker 1: Engaging, entertaining, and informative, this is the Roy Green Show across Canada on the Corus Radio Network. Today's guest host, Jeff Courier. Jeff: To carry on our conversation about what has become an international humanitarian crisis, and that is of course the refugee crisis I'm talking about in Europe right now. Interestingly enough, we're referring to this as a refugee crisis in Europe when, in fact, it is a global crisis of sorts.... Read more →

Canadian Refugee Adjudication - Some Resources

Canadian Refugee Adjudication -- Some Resources. Read more →

Calgary Refugee Acceptance Rates

Refugee Acceptance Rates in Calgary betray an unacceptable amount of variance. Read more →

Real Refugee Reform

Ministers Toews and Kenney have been busy this year trying to show Canadians (and prospective refugees outside Canada) that they mean business. Instead of announcing and enacting new legislation that would apply to only a tiny minority of refugee claimants, the duo should perhaps look at the existing legislation that actually allows the government to take back refugee status given to an individual if the conditions back home have changed and the reasons for the claim/risk no longer exist (cessation). The use of that provision, combined with expeditious determination of claims and (more importantly) expeditious removal of individuals once they have been determined not to be at risk should be more than enough to send a clear message to economic migrants/bogus refugee claimants. Maybe they aren't actually interested in solutions; politics is theatre to a large extent and the government needs to show the public that they are taking action on a seemingly intractable problem. The reality is far more prosaic. The government already has the tools necessary to address the essential problems, but insist on public display and ostentatious new legislation. Read more →

Randy Quaid and the Star Whackers

Randy Quaid and his wife are claiming refugee protection against their country of origin/nationality: the United States of America. The claim appears to be manifestly unfounded. The erratic Quaid, a Hollywood actor, is claiming persecution from "star whackers", pointing to the untimely deaths of Heath Ledger and David Carradine. His wife states that Hollywood is killing its stars for ad sales (as an aside, it's questionable whether Quaid still ranks among the glitterati to merit 'star' status). Such a claim profile underscores the fact that our immigration/refugee system is susceptible to abuse, and at the same time, is a slap in the face to genuine refugee claimants that actually need this country's protection. Under our current law, Quaid is entitled make a refugee claim in Canada. Fine. But he's not entitled to stay here any longer than absolutely necessary for the immigration authorities need to adjudicate his ridiculous claim for protection. Read more →

Assessment of Credibility in Claims for Refugee Protection

I am reviewing a publication by Legal Services, Immigration and Refugee Board entitled "Assessment of Credibility in Claims for Refugee Protection". One reference seems to indicate that it would be an error of law for the Board to rely on selective evidence: In Polgari, Imre v.M.C.I. (F.C.T.D., no. IMM-502-00), Hansen, June 8, 2001, 2001 FCT 626, the Court faulted the CRDD for "the absence of any analysis of the extensive documentation...coupled with the failure to adequately address the contradictory documents and explain its preference for the evidence on which it relied." In Orgona, Eva v.M.C.I.(F.C.T.D., no. IMM-4517-99), MacKay, April 18, 2001, 2001 FCT 346, the Court faulted the CRDDbecause "it made no reference to the significant documentary evidence which was supportive of the... claims. ...when evidence which supports the [claimants'] position is not referred to, and when other documentary evidence is selectively relied upon, the tribunal, in my opinion, errs in law by ignoring relevant evidence. Another reference indicates the limited value of noting the failure of a claimant to refer to his/her fear in an application for a visitor visa to enter Canada: In Fajardo, Mercedes v.M.E.I. (F.C.A., no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993, Reported: Fajardo v.... Read more →