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University of Calgary hosts Federal Court immigration matter

For a few hours on the morning of Nov. 22, the classroom known as “Moot Court” at the University of Calgary Faculty of Law was transformed into a courtroom of the Federal Court of Canada. The regular Wednesday morning Family Law class, normally held in Moot Court, relocated and a security checkpoint appeared outside the door. Inside, a small bronze nameplate installed at the podium for the hearing announced that Justice Patrick Gleeson would be presiding over the matter of Ranbir Singh Sidhu v. The Minister of Citizenship and Immigration.

Some 50 students from all three years RSVPed to the hearing, which was also attended by Faculty of Law dean Ian Holloway. At this time of year, second- and third-year law students all over Canada are anxiously gathering the materials needed to apply for clerkships at all levels of court. As such, this hearing provided a concrete example of the kinds of matters and issues considered at the Federal Court and it was both informative and timely for those of us considering all the possibilities for our future careers.

The principal applicant, Sidhu, was not present at the hearing but was represented by his counsel, Raj Sharma of Stewart Sharma Harsanyi in Calgary. Counsel for the Department of Justice was Galina Bining.

Sidhu, a 50-year-old Indian citizen who had been a farmer and farm manager in India for 25 years, was a prospective immigrant to Canada in the self-employed persons class (under s. 12(2) of the Immigration and Refugee Protection Act and ss. 88 and 100 of the Immigration and Refugee Protection Regulations). He sought to challenge the decision of a Canadian visa officer in New Delhi, India, who had concluded in January 2017 that Sidhu did not meet the requirements for immigration to Canada.

According to his counsel, Sidhu’s plan was to move to Calgary and live with his brother and to farm land in southern Alberta, near Lethbridge or Byemoor. At the hearing, two of the major issues addressed by counsel were whether Sidhu had sufficient knowledge of farming practices in Canada and whether the business plan he submitted with his visa application was legitimate. It was the DoJ’s position that Sidhu had not convinced the visa officer that he had the intention and ability to purchase and maintain a farm in Canada. Sharma, however, argued that the visa officer approached Sidhu’s application with an inappropriate level of skepticism. His position was that she improperly dismissed Sidhu’s business plan, simply stating that someone with his language proficiency score could not possibly have written it, even though no language proficiency is required for this immigration class.

Sharma emphasized that Sidhu was a very wealthy individual who owned millions of dollars of property in both Canada and India. One of the visa officer’s notes was that Sidhu’s hands were too clean to be a farmer of 25 years — but as Sharma argued, managing a farm and working in the fields are two very different things. Nonetheless, Bining argued in response that Sidhu’s knowledge of life and farming in Canada was limited to what anyone driving through southern Alberta could observe and that this level of knowledge was understandably not sufficient to convince a visa officer that he could be successful.

Underlying the topics argued at the hearing was the more normative question of whether an individual should be able to acquire a visa to come to Canada merely by virtue of proving that he has the financial resources to support himself or whether he should additionally have to demonstrate, as specified in the act and regulations, that he will make a significant contribution to economic activity in Canada.

The bar appears to be very high for applicants; in response to a question from a student after the hearing, Sharma estimated that perhaps three per cent of those from India who apply in the self-employed persons class are granted visas and that, if he had had the opportunity to advise Sidhu on his initial application, he would not have recommended this route.

This opportunity to observe a Federal Court hearing provided University of Calgary law students with a valuable example of the many immigration matters that are considered at Federal Court, as well as the experience of being an immigration lawyer or a lawyer at the Department of Justice. Both Sharma and Bining, as well as Gleeson, kindly stayed for a few minutes after the hearing to take questions from students about the differences between the reasonableness and correctness standards of review, what it means to certify a question for appeal and how frequently immigration matters receive leave to appeal at the Federal Court (only 20 per cent to 30 per cent of matters make it past the threshold for leave).

Gleeson let students know that the Federal Court is eager to receive clerkship applications from Western Canadian law students and described the opportunity to clerk in glowing terms.

Amy Matychuk is a 2018 JD candidate at the University of Calgary. Amy received a Bachelor of Arts (English Literature) from Ambrose University College. She has worked for Professors Nigel Bankes and Jennifer Koshan researching Indigenous rights, the Alberta Energy Regulator, and Canadian human rights law. Amy is also the student blog editor at ABlawg.ca. She will be clerking for the Provincial Court of Alberta in 2018-19.

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