Discussing the Growing Crisis for Canada’s Immigration System: Firm founder Raj Sharma interviewed by Danielle Smith on AM770 on April 17 2018
Danielle Smith: You can’t say that we don’t actually have a handle on our borders at the same time as we respect the rule of law, and are ignoring the safe third country agreement. You can’t. They’re usually opposed. You’ve got to make a choice about what you’re going to do. Are you going to stand for legal migration and following the rules? Or are you going to continue to allow this free for all? And I’m telling you, it’s a free for all.
Danielle Smith: Now, by Raj Sharma, who is an immigration lawyer in town who I talked to about a whole range of issues. There’s a couple issues I want to talk to him about today. I just wanted to see whether or not anything has improved on the handling of those who are coming across the boarder illegally and he joins us now to talk about it.
Danielle Smith: Raj, thanks so much for being with me.
Raj Sharma: Thanks for having me on.
Danielle Smith: I’m just going to put these numbers out there. Last March we had, coming across illegally, we had it looks like almost 900 people. This March, coming across illegally, it looks like we now have 3,082 people who came across the boarder in March. That’s 6,000 so far in the year. We’re three times higher than where we were this time last year, when we thought we had a crisis of people coming across illegally.
Danielle Smith: Those numbers don’t look good to me, Raj. What’s your impression of them?
Raj Sharma: Well, Danielle, I think we’ve been talking about this since about that time last year and I seem to recall commenting that at a certain point it’s not … It becomes a snowball rolling down the hill. What you’ll have is, you’ll have individuals cross the border and this will lead to a back log. Once there’s a back log and there’s insufficient … no one addresses the increasing resources, it’s just too hard to catch up or to play catch up. Then you’ll see other individuals and those migrant communities communicate with one another and then all of a sudden you’ve got hearings that used to take place in three or four months, now those hearings get postponed because there’s not enough decision makers. The burden is too much. Then these individuals stay here longer. There’s work permits, there’s healthcare benefits, all of the things that Jason Kenny attempted to remove. These incentives, for example for what he deemed “bogus refugees”.
Raj Sharma: Those incentives are back. What you’ll have now, of course, is social proof. You’re going to see how others have been treated similarly situated individuals and the methodology and you’re going to follow as well. So this is, I think, a very logical outcome to what we saw. It was somewhat of a slow moving accident, or disaster, train wreck, but it was something that was certainly foreseeable at least since early last year.
Danielle Smith: Okay. So in all of last year there were 20,592 by the end of the year. What can you tell us about how that group was treated that came across illegally? One of the things you’ve pointed out is that I think there was a 70% rejection rate. I like the way you framed it. Was well, people are looking at things. That means there’s a 30% acceptance rate, so why not take your chances?
Raj Sharma: Actually, sorry Danielle, the number is actually reversed. It’s a 70% acceptance rate.
Danielle Smith: Oh my goodness. Okay.
Raj Sharma: And so even in the early stages, people were looking at a 50% to 60% acceptance rate, or a 60% rejection rate. Even those numbers are significantly higher. Even at a 50/50 or a 40% chance of success. A 40% chance of permeant residency in Canada is a lot better than 100% lack of status in the US and eventual removal. The numbers that we’re seeing now, the most recent numbers, because again, the data is struggling to keep up, but the most recent numbers are a 70% acceptance rate and I’ll just put I frankly. You’ve got decision makers, they’re under incredible stress. Now, it’s far easier to say yes, than it is to write a no. If you write a no, A, you have to justify it. There’s credibility findings. It’s quasi-judicial type of determination and then of course the no can be appealed to the refugee appeal division potentially and then you may be sent back for redetermination and of course there’s still the federal courts.
Raj Sharma: Writing a yes, or agreeing to a refugee claim, is a lot less work than writing a no. I’m not sure whether others will agree with me or not, but that’s my personal opinion.
Danielle Smith: Well, that also then … If you have a 70% chance of getting accepted, that just then encourages more people to come across illegally. Can I just put one more thing on the table here? There are now more people coming across illegally than are coming through legally. The number that I added up is 2,950 people who came in through air, marine, land, or one of our internal offices. Compared to 3,082 who came across illegally. How can that be allowed to stand? How can you have more people coming across your border illegally and not have a proper process to be able to deal with it?
Raj Sharma: This is a problem with no easy, ready solution. It doesn’t lend itself well to feel good, warm, sunny tweets. You have the largest undefended boarder in the world and more than that, you have hundreds of thousands of individuals in the United States with precarious immigration status. Faced with a choice between a rock, hard place, and Canada, I think most people and their families would choose Canada. So this is the particular, peculiar situation that we find ourselves in. The only solution really, would be immigration reform in the US and that too progressive, or let’s say, generous immigration reform in the United States, such that these hundreds of thousands of individuals get to remain there. I simply don’t see that happening given the political climate in the United States today.
Danielle Smith: Certainly not under this administration, but if these numbers continue to hold, a three fold increase of what we saw from last year, you’re talking about 60,000 people coming across the border illegally.
Raj Sharma: I think, and again we said this last year, I’m not sure whether others have heard it but you’re looking at the … This is not Jason Kenny saying Canada is broken, this is a very, very clear assessment. The Immigration and Refugee Board has only a finite number of decision makers. Were mandated by the charter and the sing decision to hold hearings. They can do about 17,000 to 20,000 finalization per year. You now have a back log double that and growing every day. Hearing times are skyrocketing. It was two years, let’s say a couple months ago. We are looking at potentially five years plus to get a refugee hearing.
Danielle Smith: And then that goes to the point that you’ve raised on the show before, that once you’ve been in Canada for five years, you’ve maybe had kids, you’ve been working, you’re established. You can then say, just on compassion grounds, you can’t send me back.
Raj Sharma: It’s defacto-status. I simply don’t see a scenario where we’re going to be removing families that have been in Canada for 10 years.
Danielle Smith: Let me take a pause, cause I want to … I had an immigration researcher on last week who posed a couple of solutions and you’re on the inside of the system. I want to see if any of these will work to solve this problem, but I just have to take a quick break. When we get back, we’ll continue our discussion with Raj Sharma, immigration lawyer and yes, it is as bad as you thought it was. We’ll be right back on 770 CHUR.
Danielle Smith: Changing people in their lives and their misery into statistics, well done. Well look, we have a system where you’re supposed to follow rules. So if you decide to say the rules don’t matter, how many people are you prepared to take then? What are there? 46 million displaced people in the world. Do we get all 46 million? There has to be some kind of objective measure. And who are these individuals who have been living quite well in America for the last 20 years, who are they crowding out in the refugee processing system? Who are facing the potential of starvation, war, imminent death. I mean, there’s lots of deserving people in the world. That’s why we have a generous system. We’re not rule breakers. Oh, you can get across here. We’ll just approve you because we can’t figure out an effective way to process you. That’s my point here. Let’s figure out an effective way to process.
Danielle Smith: So, Raj, let me throw a few things by you. I don’t know if you saw Robert Vineberg’s report from last week. One of the things he said is that we are misreading the Singh decision. That not everybody needs a hearing. That you really should have, he called it the other board, the Immigration Refugees and Citizenship Canada should do the initial assessment and then this board that is overwhelmed, the Immigration and Refugee Board would only hear the appeals on the no and that would be the way that you’d be able to speed things up. Is that possible? Do you think there’s been a misreading of Singh? Do you think that’s one of the solutions?
Raj Sharma: If there’s been a misreading of Singh, then that would be news to all of the three decade plus of refugee lawyers. The federal court judges. And the highest court of this country. So there hasn’t been a misreading of Singh, well, but there may be a possibility and this is true, we have given this Mercedes reading of Singh and so we’ve set up an independent tribunal to determine these refugee claims and Singh basically stands for the proposition that everyone deserves, for example, if there’s credibility that issue deserves a hearing.
Raj Sharma: Now, the board is making decisions without a hearing where they’re coming from straightforward claims from countries such as Syria or Yemen for example. Or Libya for that matter. That being said, under Jason Kenny’s tenure, decision makers at the Immigration and Refugee Board, the refugee protection division, have gone from GIC appointments to public servant. So arguably, that level of independence has already been sort of, eroded, let’s say. It may be possible to have immigration officers make these types of decisions but I’m not sure. It kind of goes back to pre-Singh. Before Singh, what you would have is you would have an immigration officer have an interview with a refugee claimant. It would be recorded, the tapes would then be sent to someone in Ottawa, someone more senior immigration officer, and that officer would make a decision whether refugee protection was warranted or not. Then came the Singh decision which said, well an individual should have the opportunity to address concerns by way of a hearing.
Danielle Smith: But that’s just it, if there are no concerns and you’ve said yes, it seems to me like that’s a pretty easy way to simplify it. It does strike me that you only really need a tribunal if you need to argue your case. If you don’t even need to argue your case, we’re just adding an extra unnecessary step.
Raj Sharma: Most refugee hearings require an assessment of credibility. We have to determine, for example, now the newest group, let’s say, of the recent boarder crosses are Nigerians. Out of Nigerians, a significant number are alleging persecution due to their sexual orientation. Now, there would have to be a hearing. There would have to be an assessment of credibility.
Danielle Smith: Because I mean, it stands to reason that some of those would have been coached to be told this is the way that you would be able to qualify and some of them are going to be bogus claims.
Raj Sharma: Correct, because even in Toronto, one law firm or consultancy, filed remarkably similar claims. Remarkably similar stories. It’s almost a cut and paste narrative, for example. We have to balance, for example, and again, we have to uphold the integrity of our system as well. We have to sift those that are telling the truth and are fleeing persecution to those that have been coached and it’s fraudulent. Sadly, oddly enough, the more we put strain on our system, we’ll really be sifting the good liars from the bad liars.
Danielle Smith: Oh, Raj, you’re so right. There isn’t an easy answer to all of this. Thank you once again for helping to scope out the nature of the problem for us. Hopefully we’ll be able to get to some solutions at some point when we speak again. I appreciate your time today.
Raj Sharma: My pleasure, always.
Danielle Smith: That is Raj Sharma.