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Canada Immigration Blogs by Attorney David Cohen

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New Beginnings

December 21st, 2006

The future belongs to those who believe in the beauty of their dreams. – Eleanor Roosevelt

As the curtain comes down on another calendar year it’s a time to reflect and look ahead.

Thinking back on this past year, there are many things I’m thankful for. In particular:

- The chance to have celebrated the birth of my child and the 93rd birthday of my father. Mostly, I’m grateful that our family has not been torn apart.

- The opportunity to have spent one more year not having to say “yes” when I wanted to say “no”.

- The good fortune to have been born in a place that has never known man-made or natural disasters.

At the same time I can’t help but be aware of others, who in the last year struggled to get through each day.

I am bothered by the sense of entitlement that many of the more fortunate among us hold so dearly. They feel especially deserving of their place at the table of life and are so very reluctant to give someone else a break.

Look, the truth is that caprice and luck, as much as anything else, determine who we become and the quality of life each of us have. Were it not for the fact that my grandparents had the courage and foresight to leave Eastern Europe for Canada nearly 100 years ago, would I have the benefits I do today? I doubt it. Given the events of the last century, would I even be alive today? Probably not.

I know one thing for sure and that is we, who are living in Canada, are much more fortunate than most other populations. I’m suggesting that we can, as individuals, lend a hand to others who want to share in our opportunities by immigrating to Canada.

Deciding who can come to Canada and when they get here is a contest but the rules of the competition are not fairly or uniformly applied. That’s certainly the case now and it’s probably always been that way. In the coming year, in this blog, I aim to do my part in lending a hand to people who want to come to Canada but are at a disadvantage under the current immigration processing scheme. Stay tuned.

In closing, I would like to thank our clients for their trust and to wish all readers a Safe and Healthy New Year.

Justice Delayed is Justice Denied

December 8th, 2006

Hassan Samimifar is bitter, and it is hard to blame him for feeling that way.

Mr. Samimifar, an Iranian national, arrived in Canada 21 years ago and immediately applied for refugee status. Until 2003 he was waiting for an answer. When his file was finally addressed, his application was refused. After an immigration hearing scheduled for early December, Samimifar could be deported to Iran by early 2007.

Samimifar was told his application was refused because of alleged ties to a terrorist organization, a Marxist group called MEK which sought to overthrow the Iranian government. The Canadian government’s allegations stem from lectures and demonstrations he attended while he was a university student. Samimifar is now 47 and says he was never a member of the group, and has had no contact with them since arriving in Canada.

While delays can be expected from time to time, Samimifar has now spent nearly half of his life in legal limbo. Arguing that the wait has cost him some of the best years of his life, he is suing the Canadian government for $5 million in lost income and damages. That case is still before the courts.

Under Section 11 of the Canadian Charter of Rights and Freedoms, any person, regardless of citizenship status, has the right to have their case tried within a reasonable amount of time. This right has been clearly upheld and defined in criminal law, but immigration law in Canada falls under another category, administrative law. The spirit of the charter is still applicable here, as it refers only to “any person charged with an offence”. As the refusal of his application is based on an allegation of membership in a terrorist organization, this charter guarantee should apply. The law does not give Mr. Samimifar a right to be in Canada, it does however call for fair treatment.

We have to ask, what went wrong here? Some of the responsibility lay initially with Mr. Samimifar himself as he was convicted in 1986 of causing a disturbance after an altercation with immigration official, something that delayed his application for permanent residence. That can certainly explain some of the delay but not two decades. Mr. Samimifar’s application was approved in principle for permanent residence in 1994 but he would wait another 9 years for a decision, which would turn his application down.

By any stretch this could not be called a normal processing time. While the legal precedents apply specifically to criminal law, the spirit of justice and fairness dictates that Mr. Samimifar should be allowed to stay in Canada after the wait he has had to endure.

Is It Time For An Amnesty?

November 28th, 2006

There are more than 200,000 undocumented individuals, more commonly known as illegal immigrants, currently residing in Canada.

Most have integrated in Canadian society and contribute to our economy by working at jobs that would otherwise go unfilled. The problem is that they did not play by the rules in getting to Canada or if they did enter legally, they have since overstayed the date by which they should have left.

What should be done with these individuals? More to the point, should they be granted some sort of amnesty and be “officially” allowed to remain in Canada?

These questions have no easy answers and they have been bandied about by successive Canadian governments for more than a decade. There are compelling arguments on both sides of the amnesty issue. Those in favour of amnesty contend that, for a host of reasons, it makes sense to regularize the status of these people and, in any event, we lack the resources to effectively remove them from Canada. Those opposed to amnesty retort that we make a mockery of the immigration processing system by rewarding individuals who chose to ignore its rules.

Both camps make valid points. While I respect the position of those against amnesty, I am in favour of Canada granting amnesty to undocumented individuals for the reasons that follow:

- Most undocumented individuals in Canada have been in the country for many years. It used to be relatively easy to enter Canada but that is no longer the case. In the last few years Canadian immigration authorities and border service personnel have become much more vigilant in preventing unauthorized individuals from entering the country. So we can expect that there will be fewer and fewer new undocumented people in Canada in the future. Now that our borders are less penetrable it makes sense to regularize the status of everyone within those borders.

- Many of the current undocumented people in Canada are former refugee seekers, whose claims were denied. They simply went “underground” rather than leave Canada. Perhaps, with good reason. The Canadian refugee determination process in horribly flawed. Safeguards were put in the enacting legislation that were meant to protect the system’s integrity but the government never implemented them. Within the last few months one Refugee Board member was convicted of accepting bribes and another has been charged by the RCMP with accepting sexual favours from a woman in return for “help” in her refugee claim. One can only imagine how many worthy asylum seekers had their claims rejected because they refused to pay bribes or provide sexual favours.

- There is already a shortage of workers in Canada. In the Toronto area alone, thousands of construction jobs are being filled by undocumented workers, who probably do not report their incomes to the taxing authorities. Remove them from their jobs and the economy will suffer. It makes more sense to “legitimize” them and at least begin collecting income tax from them. Yes, it would be better to replace undocumented workers with temporary foreign workers on Work Permits but Canada’s Foreign Worker Program is relatively slow and somewhat clumsy. Canadian employees, in general, are reluctant to jump through the required hoops to recruit foreign workers.

- Finally, provincial health and social services departments need to know how many people really live in their jurisdictions. From the hiring of teachers and law enforcement personnel, to the building of schools and hospitals – all of this is based on having an accurate head count.

For these reasons, I feel it is time to bring undocumented individuals in Canada into the system.

Tossing Tea into Lake Ontario

November 7th, 2006

Next week Ontario will go to the polls to vote in municipal elections.

Toronto incumbent Mayor David Miller has argued in the recent campaign that permanent residents living in his city should have the same right to vote in this election as Canadian citizens.

While Mayor Miller is clearly seeking votes in the city with the second highest proportion of foreign residents in the world, the value of his case still stands. There are 200 000 permanent residents of Canada living and working in the city of Toronto proper, who will not be able to vote for their mayor and city councillors next week. However, if I owned property in Toronto, then I, as a Canadian citizen, would be able to vote in the election even if I reside in Montreal and only set foot in Toronto once every four years to vote. This does not fit in well with Canadian democratic values and the principles of fairness and justice.

As it stands right now, only Canadian citizens have the right to vote in elections at any level of government. Permanent residents have nearly all the rights and responsibilities of citizenship. One of these responsibilities is to pay tax (municipal, provincial and federal), the same as anyone else residing in Canada. A lot of tea was thrown into Boston Harbour over taxation without representation, once upon a time. For their contributions to their cities and towns, permanent residents deserve a say in how they are governed and how their tax dollars are spent. This is a basic principle of democracy.

As far as Mayor Miller’s suggestion is concerned, it is quite possible changes could be on the way. Municipal electoral law falls under provincial jurisdiction and Ontario Municipal Affairs Minister John Gerretsen indicated that his government will look at the idea after the November ballot during a review of the provincial Municipal Elections Act. It could certainly be a savvy political move for the Ontario Liberals in anticipation of a provincial election in a year’s time. Why limit enfranchisement to municipal politics?

For that matter, if the national Conservative Party is interested in breaking through in Canada’s biggest cities, places where it failed to break through during the last election, it would be wise to consider Mayor Miller’s suggestion and apply it on the federal level. Such a move might be the missing piece in the puzzle for the Conservatives in the Toronto, Montreal and Vancouver areas, regions that have been both magnets for immigration and quite the opposite for Conservative election wins.

If Ontario forges ahead with these changes to its municipal election rules, it would be the first jurisdiction in Canada to do so but not without precedent in other democracies. Australia, Belgium and Austria are just a few of a number of countries that have extended voting rights to permanent residents at some level. Canada is a country that is built on immigration. In this area we should be leading rather than following, and Mayor Miller’s suggestion is a good start.

American Sentenced to Exile in Canada

October 27th, 2006

There has been much talk these days about Malcolm Watson, the 35 year old American teacher recently convicted in the United States of having sexual contact with a 15 year old female student.

What is particularly strange about this case is the sentence that was imposed. The judge offered the culprit a choice – one year imprisonment or banishment to Canada for three years. Mr. Watson obviously chose the latter. At first blush the punishment appears rather random but if you bother to connect the dots there is some reason behind it. You see, Mr. Watson is a Canadian Landed Immigrant and has been a Permanent Resident of Canada for the last four years. He has been living on the Canadian side of the border with his Canadian wife and kids, while teaching at a US private school near the border.

Now, comes this hue and cry from Canadian federal and provincial politicians of all stripes. We must, they insist, bar Mr. Watson’s entry to Canada. Our Border Services personnel, being no dummies, got the message and they arrested Mr. Watson when he attempted to enter Canada a few days ago.

There’s only one major hitch here and that is Mr. Watson has the right to be in Canada. As a Permanent Resident, he needs nobody’s permission to be in Canada and whether you, I, or Prime Minister Harper, prefer otherwise is irrelevant in these circumstances.

The only way that Mr. Watson could have his Permanent Resident status removed would be if he had been convicted of an offence outside Canada, which would have been an offence had it been committed in Canada that is punishable by a maximum term of imprisonment of 10 years or more. Sexual contact with a student under the age of 18 is indeed a criminal offence in Canada but the maximum term of imprisonment is only 5 years – end of story.

If the politicians and those for whom they thump their chests wish to change the laws of Canada then they ought to follow the proper procedure to do so. That is why we have Parliament.

In the meantime, we must remember that if we are a nation of laws, then the laws apply equally to those whom we admire and to those whose actions offend us.

Taking Stock of Dual Citizenship

October 24th, 2006

Recently, Canadian newspaper editorials have called into question our policy of recognizing multi-citizenships.

The Canadian ideal has been to distinguish ourselves as a “mosaic” rather than a melting pot. In 1971, Canada became the first country in the world to officially adopt a policy of multiculturalism. This policy encourages immigrants to retain their culture, becoming if you will, “hyphenated” Canadians. This cultural combination has become a foundational point for Canadian society.

Canada has a long tradition of recognizing multiple citizenships. Since 1977, when the last restrictions were removed, being Canadian has not required a new Canadian to cut ties with their country of origin; nor has taking on the passport of another nation required an existing Canadian citizen to relinquish their Canadian passport. Over 500,000 Canadians living in Canada currently hold more than one passport, along with a great many Canadians living overseas.

Recent events surrounding this latter group have led some to call the dual (or multiple) citizenship policy into question. During the recent conflict in Lebanon, the Canadian Forces evacuated 15,000 Canadian passport holders at a cost of some $85 million. Many of these evacuees have since returned to Lebanon after the situation there became more secure. This has led some to suggest that we are mistaken to use Canadian tax dollars for services to those who may have left Canada behind for life elsewhere.

While there are costs to allowing Canadians to hold other passports, they are outweighed by the benefits.

Globalization has made the Canadian economy more and more dependant on expanding trade relations. Yet national barriers remain, and under both public and private international law, countries always favour their own citizens. An Indo-Canadian, for example, will have an advantage in expanding Canadian opportunities within the growing Indian market. As a country that counts membership in Atlantic and Pacific regional groups along with both the Commonwealth and the Francophonie, Canada would be wise to encourage its global ties as a competitive edge. It does not make sense, at a time when great efforts are being made to ensure Canadian industry is growing internationally that we begin to restrict the international nature of Canadians themselves.

We must keep in mind that all Canadians living abroad act as ambassadors for Canada. As the Canadian economy depends on trade and as demographic change calls for a steady inflow of people through immigration, these Canadians can be an important national asset.

Certainly we wish to avoid people abusing their Canadian citizenship. For example, non-resident Canadians should not be able to use our national health services, which are free at the point of delivery, while they reside abroad. Similarly, non-resident Canadians, who have not contributed to the Canadian Pension Fund, should not receive benefits.

From time to time we are reminded of the costs of allowing for dual citizenship. It is important to keep such costs (e.g. the $85 million evacuation from Lebanon) in perspective. The cultural and economic benefits, in my opinion, far outweigh these costs.

Playing Matchmaker

July 17th, 2006

People marry for all kinds of reasons. Love. Money. Companionship. A better life. Most of the time, the decision to marry is complex and involves multiple reasons. Who could possibly state with conviction that they know exactly why another person decided to tie the knot?

Apparently, Citizenship and Immigration Canada (CIC) believes it can. With the regulation that spouses, common-law and conjugal partners may only sponsor their partner for immigration to Canada if their relationship is “genuine”, CIC is claiming it can objectively distinguish between those who marry for the primary purpose of immigrating to Canada and those who marry for “genuine” reasons.

The concept of using an objective test to assess the reasons for entering a marriage or long-term relationship is absurd. Recently, a Canadian woman tried to sponsor her Pakistani husband and was rejected because she was previously divorced and had the custody of her child from the former marriage. The locally hired Canadian visa officer in Pakistan did not believe the marriage was genuine because, according to local custom, a Pakistani man would not marry a divorced woman, especially when that woman had custody of a child from the earlier marriage. This hardly sounds like an objective test.

CIC is doing no more than playing matchmaker by delving so deeply into such intimate subjects and asserting its own ideas of what a good marriage makes. If one of the reasons people commit to each other is to have a better life in Canada, is that so terrible? Considering some of the reasons people get married in Canada, and considering how many marriages end in failure anyways, why is CIC so concerned about upholding some subjective notion of what marriage should be about?

It’s true that CIC does have to be concerned about how the sponsored person will be able to support himself or herself in Canada if the relationship fails. But the fact is that all sponsors still have to sign an agreement promising to provide for the sponsored person’s essential needs for three years, regardless of whether the relationship is maintained.

To discourage marriages of convenience, perhaps the sponsorship agreements could be extended. This would allow the “genuineness test” to become more objective and it would be based on the willingness of the sponsor to make a long-term financial commitment.

Whatever the issues that may arise, the truth is that CIC’s role as romantic matchmaker has to be debated. At the very least, this practice of rejecting otherwise eligible applicants because they didn’t marry for the “right reason” seems worthy of discussion. Even the most prescient of people cannot predict which relationships will work and which will fail, and the Government of Canada seems no better at playing matchmaker.

Corralled and Sent Home

July 6th, 2006

Over the Canada Day long weekend, I wrote a letter to the Montreal Gazette in response to their editorial about Yves Bourbonnais, the former Immigration and Refugee Board appeals division judge who has pleaded guilty of receiving bribes. I’d like to elaborate on a few of the points I raised in the Gazette.

The editorial in the Gazette suggested that some of Bourbonnais’ past decisions as a judge should be reviewed, and that those people who paid him bribes to stay in Canada should be ‘corralled and sent home’.

Unfortunately, the editorial also seems to ignore the cases where the opposite is true; that is, cases where people with valid refugee or immigration claims did not pay a bribe to Bourbonnais and were subsequently ‘corralled and sent home’. If justice is to be served, shouldn’t all of Bourbonnais’ decisions be reviewed?

In many refugee cases, applicants are allowed to remain in Canada if they have a legitimate fear of persecution back home. What if many of the cases presented before Bourbounnais were from applicants with a credible fear of persecution but a lack of money with which to influence Bourbonnais’ decisions? If that is indeed the case, we ought to bring back to Canada those who were unfairly deported.

And perhaps reviewing Bourbonnais’ cases is not enough. Since the new Immigration and Refugee Act was enacted in 2002, all refugee appeals are now heard by a single judge rather than a panel as done in the past. While it is true that Bourbonnais’ violations occurred under the old legislation, his story is still a cautionary tale for the use of a single judge in cases involving refugee claimants who are at the mercy of Canada’s Immigration and Refugee Board.

Having more than one judge review a case is an excellent protection against corruption. That’s important, because corrupt judges don’t only let unscrupulous characters stay in Canada; they also ‘corral and send home’ those who deserve to stay.

Blog written by David Cohen on Thursday, July 06, 2006

Corrupt Canadian Immigration Judge Jailed – The Bigger Story

June 29th, 2006

Former Immigration and Refugee Board appeals division judge Yves Bourbonnais pleaded guilty yesterday to multiple counts of obstruction of justice stemming from his leading role in a bribery scheme that targeted cases he was scheduled to hear. He was sentenced to six years in prison.

It’s a sad fact of life that, from time to time, we hear of corruption in the judicial system. We may be disappointed but we’re not shocked. In the end the bad guy was caught and punished, as he should have been.

The real issue here is that Mr. Bourbonnais was appointed a judge in the first place. Back in 1996, then Immigration Minster Lucienne Robillard named Mr. Bourbonnais to the bench. Had the former Minister done a background check she would have learned that in 1988 Mr. Bourbonnais had been convicted of breach of trust for selling government office furniture from a prosecutor’s office and two courthouses. Just the kind of person we’d want to uphold our laws.

It’s got to make you wonder about the quality of the security screenings that were conducted on the thousands of immigrants who entered Canada between 1996 and 1999, the period of time during which Mrs. Robillard served as the chief Canadian gatekeeper.

Blog written by David Cohen on Friday, June 30, 2006

Missing the Point

June 22nd, 2006

In a recent speech, Prime Minister Stephen Harper defended the need to keep Canadian borders open against calls that immigration was breeding terrorism in Canada.

As if we have a choice.

The debate is no longer about whether Canada should remain open to immigration. That debate became moot when Canadians realized that low birth rates and an aging population would eventually lead to a shrinking populace. Baby bonuses and other such incentives couldn’t convince Canadians to have more kids, and demographic experts have forecasted that a Canada without immigration would pretty much disintegrate as a nation by 2050.

So, if Canada needs immigration to avoid becoming one giant nursing home before going gently into that good night, why are we still acting as if closing our borders is a viable policy option? Instead of debating a non-issue, Canada needs to focus its energy on the real challenge: preventing the ghetto-ization of our immigrant communities.

As much as some people might prefer to receive immigrants from England and France, the reality is that those most likely to want to immigrate to Canada come from non-Western cultures. The success of Canada as a nation depends on our society’s ability to avoid marginalizing those cultures that seem different from the mainstream. Integration will not occur without meaningful opportunities for Canada’s immigrant population to participate in our economic, cultural, and political institutions.

Accomplishing this integration and avoiding the problems of ghetto-ization may be a challenge, but it is a worthwhile one. Given Canada’s demographic realities, the only serious immigration debate to be had is how best to address this challenge. However, as long as our Prime Minister and others find it necessary to focus on rebutting calls to close the borders, valuable energy is being wasted. Like paying bonuses for babies, closing the borders is an outdated concept, and Canada’s politicians would be wise to steer clear of this retro debate.

Blog written by David Cohen on Friday, June 23, 2006

Respect Your Elders

June 6th, 2006

Apparently “respect your elders” is a proverb that officials at Citizenship and Immigration Canada (CIC) have never heard.

While Canadian citizens and permanent residents have little problem gaining status for their spouses and children, there is an increasing backlog of parents and grandparents hoping to reunite with their family members. A 2005 promise by the Liberals to triple the number of parental and grandparent sponsorships from 6,000 to 18, 000 a year hides the fact that this number is in fact lower than pre-2002 levels. This is simply not high enough, as years of limiting sponsorships to 6,000 a year has contributed to a crippling 100,000 person waitlist.

But the worst part may not be the limits CIC is placing on parental sponsorship, but the opaque way it is doing so. Because CIC does not reveal the processing times for its various immigration offices around the world, a Freedom of Information Act request was filed to obtain the wait times from these immigration offices. This request discovered a backlog of parent’s and grandparent’s sponsorship applications that may, like at the Hong Kong office, take 9 years to clear.

Yet these backlogs are not uniform around the world. Parents migrating from the US and processed at the Buffalo office will gain permanent residency much faster than offices in New Delhi, Beijing, and elsewhere in Asia. Because processing times are a direct result of the number of immigration agents CIC places at a given office, the question is: who is making these decisions?

The Canadian government has been about as transparent as a puddle of mud when it comes to explaining how each office is prioritized. Why should parents from Asia have to wait longer than parents from the US, if both are sponsored by Canadian citizens or permanent residents? It seems that officials in CIC have decided to do some social engineering, without making the process accountable to Canadians. A parent is a parent is a parent, no matter the country they come from, and if the Canadian government believes otherwise, they should explain to the public why this is so.

The lack of transparency by the government on this issue seems tied to their unwillingness to prioritize parents and grandparents the way they do spouses and children. As CIC discriminates against one type of immigration application, immigration officials should remember that reunited families make for stable citizens. By forcing the government to be transparent on this issue, we may also force them to explain why there are over 100,000 parents and grandparents waiting to reunite with their families in Canada. After that, it will be much harder to continue leaving mom and dad out in the cold.

Blog written by David Cohen on Friday, June 16, 2006

That Guy with the Immigration Platform

May 31st, 2006

The Liberal Party leadership race has been a pretty uninspired affair so far. No candidate has yet to position himself/herself as the favorite, and the leading candidates haven’t distinguished themselves anymore than as “that guy who taught at Harvard”.

Out of this pack of mostly middle-aged white men comes an original immigration-based platform from Gerard Kennedy. While a middle-aged white man himself, Kennedy is distinguishing his campaign by positioning himself as an advocate for current and future immigrants to Canada. In fact, part of Kennedy’s Immigrant Success Platform calls for the creation of an immigration advocate position within the federal government.

Kennedy seems to have grasped the economic and cultural importance of continued immigration to Canada, and our need to better integrate immigrant populations into society at large. This includes working with the private sector to better recognize foreign credentials and reduce immigration income-gaps, and reworking the points-based immigration system to attract more diverse skilled workers that are currently shut out.

While Kennedy should have no trouble appealing to the immigrant vote, especially with foreign- born and former Liberal cabinet minister Raymond Chan occupying a top position in his campaign, this doesn’t mean Kennedy will be sitting on the Liberal Party throne anytime soon. He was little known before this race began and, although the Globe and Mail corrected an article that had mistakenly stated he wasn’t bilingual, his still mediocre French probably takes him out of serious contention on the national stage.

But that doesn’t mean Kennedy’s appeal to the immigrant vote is all-for-naught. If a savvy Liberal frontrunner with a better chance of winning the leadership brings Kennedy into the fold, parts of the Immigrant Success platform might become reality. In that scenario, Kennedy might be willing to lend his support, and that of Canada’s immigrant communities, to a leading candidate willing to implement his ideas, such as the immigrant advocate position. But before that happens, Kennedy must first be recognized for his innovative platform. Until then, the Liberal race is doomed to be dominated by references to “that guy who used to play goalie”, and other such uninspiring fare. Let’s recognize Gerard Kennedy, that guy who is putting immigration advocacy onto the national agenda.

Blog written by David Cohen on Wednesday, May 30, 2006