Good afternoon. The chairman is occupied, so you're stuck with me for a while.
Pursuant to Standing Order 108(2) and the motion adopted by the committee on October 4, 2016, the committee will commence its study on immigration consultants.
We have a number of people present today. From the Department of Citizenship and Immigration, we have Mr. Orr, whom you all know; Michael MacDonald, director general, immigration program guidance; David Cashaback, director general, immigration branch; and Michael Brandt, director, grants and contributions financial management.
Our list is a bit out of order. The third speaker will be Paul Aterman, deputy chairperson of the immigration appeal division of the Immigration and Refugee Board of Canada, and the second speaker is Jennifer Lutfallah, director general, enforcement and intelligence programs, the Canada Border Services Agency.
Ms. Kwan has a notice of motion that she wishes to present before we commence.
Thank you very much, Mr. Chair.
Mr. Chair, I'd like to begin by noting that over the last number of years, the department has made significant strides in laying the groundwork for a modernized client experience that simplifies the application process while maintaining the integrity of our immigration system. Our hope is that these continuing improvements will make it easier for people to access our services without the use of a consultant.
That said, we recognize that many prospective immigrants to Canada seek the services of immigration representatives or consultants, both in Canada and overseas, for help in navigating the immigration process. Similarly, prospective citizens may enlist the help of citizenship consultants before they seek the final step of applying to obtain their Canadian citizenship.
In June of 2011 the House of Commons passed legislation designed to better protect prospective immigrants from unscrupulous or fraudulent practices by such representatives. At the heart of that legislation were changes to the Immigration and Refugee Protection Act requiring that a paid immigration representative used at any stage of an immigration application or proceeding be a lawyer or a paralegal who is a member in good standing of a Canadian provincial or territorial law society.
In addition, an immigration representative can be a notary who is a member in good standing of the Chambre des notaires du Québec, or an immigration consultant who is a member in good standing of the Immigration Consultants of Canada Regulatory Council, the ICCRC.
There are also provisions in the law for the government to enter into agreements with certain organizations who provide valuable services to immigrants and applicants for citizenship.
In effect, the 2011 legislation made it illegal for anyone other than those I've just listed to operate as a paid representative at any stage of an immigration or citizenship application or proceeding. At the same time as these amendments came into force, the government of the day also designated the Immigration Consultants of Canada Regulatory Council, or ICCRC, as the regulator of immigration consultants. In June of 2015, similar amendments were made to the Citizenship Act in regard to the laws governing citizenship consultants, and the minister at the time designated the ICCRC as the regulator for such consultants.
The ICCRC is a self-governing, not-for-profit organization that has an arm's-length relationship with Immigration, Refugees and Citizenship Canada. There are currently more than 3,700 active members of the ICCRC. The organization manages members' entry-to-practice standards, including training, testing, and accreditation, as well as professional requirements such as education obligations. The ICCRC is also responsible for ensuring that an effective complaints and discipline process for members is enforced.
Immigration, Refugees and Citizenship Canada is always prepared to take aggressive action against unscrupulous and fraudulent activities by immigration and citizenship consultants when we become aware of or suspect improper activities. These damaging activities can include acting as a so-called ghost consultant; that is, providing, or even offering to provide, advice or representation for a fee at any stage of an immigration application or proceeding without being a member in good standing of the ICCRC.
When Government of Canada officials believe that an immigration or citizenship consultant has contravened any professional obligations, they have clear authority to share this information with the ICCRC, in a manner consistent with the Privacy Act.
Examples of information that can be shared are allegations or evidence of false promises made to an applicant, providing false information about Canada's immigration processes, failing to provide services agreed to between the representative and client, or counselling to obtain or submit false evidence.
The ICCRC has a mandate to govern such consultants by employing tools such as their code of professional ethics and code of business conduct and ethics. It also has the authority to investigate allegations of unethical or unprofessional behaviour on the part of authorized consultants. The RCMP and the CBSA are responsible for investigating both authorized consultants who engage in fraud and ghost consultants who operate outside of the law governing immigration representatives.
The ICCRC and the Canadian Association of Professional Immigration Consultants have approached our department and the CBSA about making changes to governance frameworks for the regulator of citizenship and immigration consultants. According to documents we've seen, they're interested in having the council operate similarly to law societies, with increased powers of investigation and the ability to discipline members.
To give the council these authorities would require significant legislative changes and could also impact the mandate of our security partners who are currently responsible for investigating ghost consultants and authorized consultants who engage in fraud.
Immigration, Refugees and Citizenship Canada remains committed to continuing to meet regularly with representatives of the ICCRC to discuss governance issues and the council's overall effectiveness.
Thank you, Mr. Chair.
As the committee is aware, the administration and enforcement of the Immigration, Refugee and Protection Act (IRPA) falls under the responsibility of several government departments and agencies.
While the IRCC has the lion's share of the policy responsibility under IRPA, the CBSA's role is largely one of enforcement and intelligence and criminal investigation.
Since 2006, the CBSA and the RCMP have worked to develop a complementary approach in relation to immigration penal offences. The RCMP is responsible for immigration offences dealing with organized crime, human trafficking, and national security. The CBSA has the lead responsibility for the remaining immigration offences. These include offences related to fraudulent documents, misrepresentation, counselling misrepresentation, and the general offence section under IRPA.
The general offence section under IRPA applies to individuals who do not comply with various conditions or obligations under the act. That includes examples such as persons who hire foreign nationals without authorization, previously deported individuals who return to Canada without authorization, or persons who fail to report to CBSA officers upon entry into our country.
Depending on the nature of the consultants' activities, various criminal offences and sanctions exist under IRPA and the Criminal Code. These would generally be investigated by the CBSA and/or the RCMP. By contrast, review of an activity that is unethical or unprofessional but does not constitute an offence falls under the responsibility of the Immigration Consultants of Canada Regulatory Council.
With respect to IRPA offences most frequently related to consultants, the act provides for criminal sanctions to be pursued in relation to the following: being an unauthorized consultant, counselling misrepresentation, misrepresentation, and counselling to commit an offence.
For example, where it can be proven in court that a consultant has counselled a client to provide false information with the objective of increasing the chances of their immigration application being approved, that consultant could be charged with counselling misrepresentation.
The counselling of misrepresentation could be in relation to any immigration application, be it a temporary resident permit application, a permanent resident application, a spousal sponsorship, or a refugee claim. This charge could apply to consultants whether or not they are authorized to act as a representative pursuant to the regulations.
The IRPA offence of being an unauthorized consultant applies when a consultant is not registered with the ICCRC and provides advice to a client for a fee. The penalty upon conviction by way of indictment ranges from a fine of not more than $100,000 to imprisonment for a term of not more than two years, or both. On summary conviction, the penalty ranges from a fine of not more than $20,000 to imprisonment for a term of not more than six months, or both.
Prior to the passage of Bill in March 2011, regulations respecting authorized representatives applied only after an immigration application was submitted.
This was problematic from an enforcement perspective, as much of the counselling often occurred prior to submission of the application. Activities of this nature were not regulated, and unauthorized consultants, sometimes referred to as “ghost consultants”,
were operating in the pre-application phase but could not be pursued through the courts. Now, the legislated rules respecting authorized representatives apply before and after an immigration application has been submitted. Unauthorized representatives found to be knowingly representing or providing advice, directly or indirectly, to a person prior to the application phase, during, and/or afterward can be charged under subsection 91(9) of IRPA, as well as persons “offering to” represent or provide such advice.
The legislative amendments brought about by Bill now limit those providing, or offering to provide, consulting services for a fee in the pre-application phase to persons who are lawyers, notaries in Quebec, and paralegals and consultants who are in good standing by a governing body. These provisions provide an additional tool for the CBSA and its partners to use in pursuing enforcement action against those individuals who would misrepresent themselves.
Obtaining evidence of consultant fraud can be challenging. Often the applicants are hesitant to report the counselling offences to the CBSA, as they were either a party themselves to the misrepresentation or convinced that even though the representative was not authorized, the individual could assist in ensuring that their client received a positive outcome on their application.
As a result, most offences are brought to the CBSA's attention only after the immigration application has been rejected. Even then, applicants in Canada may not come forward out of fear that they will be removed from our country.
In addition, contracts between clients and unscrupulous consultants are often made verbally, and payment is given in cash, leaving—
The Immigration and Refugee Board reports to Parliament through the Minister of Immigration, Refugees and Citizenship. Through the work of its four divisions—the refugee protection division, the refugee appeal division, the immigration division, and the immigration appeal division—the board renders about 40,000 quasi-judicial decisions per year.
The people who are the subject of those decisions are among the most vulnerable consumers of legal services in Canada. Some of them may have been in Canada only a few weeks or months. Many are unfamiliar with our legal system. Many do not speak English or French. Access to justice—that is, being able to retain competent counsel at an affordable cost—is a concern for courts and tribunals across this country, and it's a concern that applies equally to the IRB.
We do design our processes in such a way that self-represented people can navigate them, but the fact is that many of the issues we deal with are complex and technical, because the law itself is complex and technical. About one in five cases before the board involves someone who is not represented by counsel. We would much rather deal with people who have competent counsel than deal with people who are unrepresented. We are able to do our job much more efficiently in those circumstances.
To give you a sense of the numbers, of the 40,000 cases in 2016, about 8,000, or around 20%, involved people who were not represented. Around 31,500, or 80%, had counsel. Of those 31,500, about 12% were represented by immigration consultants. Last year we saw around 3,800 immigration consultants.
Integrity and competence are crucial to consultants' capacity to make a positive contribution to the immigration and protection of refugees system. From the perspective of the IRB, the provisions on consultants adopted in 2004 marked an important step forward for access to justice, as they allowed for the setting of minimal standards, and brought in complaint and discipline mechanisms that did not exist prior to that.
However, there is always room for improvement. The changes made in 2011 strengthened the system. Currently the representatives targeted by the regulation must prove to the IRB that they are members in good standing of their professional association before they can appear before the board. We check to see if they are suspended or subject to disciplinary procedures.
I think it is important for the committee to be aware of the fact that the work done by immigration consultants before the IRB is quite different from the work done by consultants when they appear or represent clients before IRCC.
With IRCC, consultants are guiding their clients through an application process. In contrast, at the board, consultants represent their clients in hearings. The IRB is the main forum in which consultants can litigate, and litigating requires very particular skills. Counsel in a hearing needs to know the difference between evidence and argument. Counsel needs to know what the right legal test is, what the best litigation strategy is, how to examine or cross-examine a witness. They have to be able to think on their feet. They have to be persuasive.
The board supports the regulators' efforts to improve standards of practice, and we also support the regulators' efforts to investigate and act on alleged breaches of professional conduct. To that end, in July 2015 we revised our disclosure policy to take advantage of the legislative changes that now make it easier to disclose this kind of information to regulators.
The board now has a transparent process for reporting issues of concern to regulators. The policy applies not just to consultants but to lawyers as well. However, we refer cases to a regulator only when we think there has been a sufficiently serious breach of a code of conduct or ethics.
Since 2015, we've made a relatively small number of referrals, 10 to the immigration consultant regulator and two involving members of the bar. However, that should not be taken as an indication that there is not room for improvement—far from it. In the view of the board, there is considerable scope for the quality of litigation conducted by immigration consultants to improve. This is why we also support education and prevention whether by the regulator itself or through our own efforts. For example, the board holds sessions for immigration consultants that are aimed at improving their standard of practice, and if we receive invitations from professional organizations of immigration consultants to offer training, we gladly accept those invitations.
We hope to build on the relationship we have with the regulator and with groups such as the Canadian Association of Professional Immigration Consultants, because we're aiming to improve the standard of litigation practice conducted by immigration consultants.
Thanks to all the witnesses. Thanks for your views on this.
My first question is for CBSA. Luc Portelance, former head of the CBSA, wrote a memo to former public safety minister in 2014, in which he said, “Immigration applicants are 'often hesitant' to report consultants, as they were either complicit in the misrepresentations or they remain convinced that their consultant can help them gain status in Canada.”
Is this still the case, and has anything been done to address this since the concern was raised to the then minister about three years ago?
Thank you to Mr. Orr and the entire team for coming in and advising us on this important issue.
It just so happens that overnight somebody sent me a very touching video from B.C. regarding a crooked consultant. It comes from somebody named Sandeep Powar. He's talking about one of the guys who has dealt with a crooked consultant—I think that's probably the right word—and who made a contract for $10,000 cash. He was told the immigration would get him a job and as soon as he got the job he would process it. The $10,000 was given—he has all the receipts—and he videotaped the consultant as well. Then the consultant told him that he failed his medical in India and he needed to go back to India to get his medical done. It's all in the video. I wish I could play it, but you can't see it.... While he was in India, he was told that he needed to pay another $3,000. He sold his house or something and sent another $3,000. As soon as he arrived back, he was told the consultant ran out of money, to bring some more money. For poor people, a lot of poor people, we hear this every single day.
He threatened to go to the police and the immigration department and was told, “If you do something like that, you know what we're going to do with you.” It is a very touching video. He's talking about what to do with his life. He sold everything. He has nothing left.
By the way, he is giving us some east-west immigration consultant in B.C., in Abbotsford somewhere. The guy's name, the number, the whole thing is in the video.
What do you do with this sort of situation? How can I advise this individual? What can I say to him? What can be done for both sides? What would we do for this crooked consultant? What can I say to the guy who is asking me for help? What help can I give this individual? Who can I send this video to, please? Can I send it to you, to somebody here?
Yes, obviously there are some situations that are heartbreaking, as you hear how people have been misled by consultants and so on. Under the Immigration Consultants of Canada Regulatory Council, that organization, there is a complaints process and that may be the best thing. If the person is a registered consultant, that would be the starting point for this, to carry this through.
One of the big concerns we have in India is the number of people who are ghost consultants. In other words, they're not registered there and are trying to work. Within Canada, there are certain parameters we can manage with those consultants who operate within Canada. When it's overseas, it's far more complicated for us to do that, because to work with law enforcement agents, we must work with the local law enforcement agencies.
Others may be able to go into this process more specifically, with specific advice, but I would add that in India one of the things we are doing specifically, because we realize this is such an issue there, is hiring someone as just a public affairs officer, to try to get the message out as much as we can to ensure that potential applicants are dealing with registered consultants, so that they are less likely to be misled.
Perhaps others would like to go into the complaints process a bit more.
Very quickly, I'll add to what Mr. Orr has said.
That example you've given, sir, is a perfect example, I think, of the position that innocent people are put in, certainly by ghost consultants, or by people who we would call the “crooked consultants”. You're right. People have a choice to make. Do they disclose this to the RCMP? If they think there is fraud going on or they are being coerced or what have you, that is an option, as are your local police.
Mr. Orr was correct in saying that if this is a consultant who is registered, there is a complaints process there. Also, our department has the ability to take forward complaints to the regulatory body. If the consultant, or “crooked consultant”, as you call it, is a member of a bar and is a lawyer, you can actually disclose to the bar. There are avenues to take, but there are not a lot and I think the individual is put in a very difficult situation.
Raising awareness with certain authorities can help move cases like that forward. What we've found in several cases is that it's not just about one person. There are multiple people who are being “abused” by this process. We have put forward examples like this in the past that have had some positive outcomes, but they have taken time and it has taken some courageous people to stand up and say, “Enough's enough.”
I can give you an anecdotal response. The anecdotal response is that from time to time we do have cases, mostly on the removal order side, that involve people who got into trouble because they were represented by consultants who weren't doing their jobs properly.
There's quite a high profile instance of that pending right now in B.C.. It involves someone who is, as I understand it, not a regulated consultant but who is offering services. Essentially, the gist of it is that people were fabricating their presence in Canada. As a result of that, those people have been declared inadmissible on grounds of misrepresentation. Some of those cases are proceeding before the board through the immigration division and the immigration appeal division.
Those people are facing removal because it's alleged that they misrepresented themselves. One of the things we hear in the hearing room is, “I did it because my consultant told me to do it.” There is a group of cases of that nature that's pending. It's an issue that comes up from time to time before the immigration appeal division and the immigration division.
I can't give you precise numbers. It's really only an anecdotal account.
Perhaps I can start off.
I think in 2011, followed with the 2015 changes, there was a very significant move forward to create the organization that would regulate consultants. I think that was something that was very valuable for us, and it is proving its worth.
I don't think we're where we need to be yet. I think there are issues with the organization that can be strengthened in terms of its own internal governance, in terms of some of its issues around finance, and thirdly, I think, in terms of sometimes the effectiveness of its own enforcement processes. This includes ensuring timely enforcement that is appropriately calibrated to the nature of the infraction, and ensuring that there's follow up in those areas.
I think it's an organization that is, frankly, still finding its feet. It's still fairly early days and it has made real progress, but, yes, there are areas where it can be strengthened.
Mr. Aterman, you talked about how the board members would prefer to have counsel representing people who appear before the board, and I understand that, and judges do too, of course. I'd like you to tell us a little about the competency of people who appear before the board. Obviously, if someone complains about a lawyer, of a counsel that appears before the board, that complaint would go to whatever provincial law society there is, I assume. If that's the case, I assume that's the end of it. They'd deal with it. The board doesn't deal with it. No one else deals with it. Could you comment on that?
Then there's the issue of the consultant, which is what we're here about today, although it could overlap into counsel. Someone complains about their competency, and it could be a board member who complains about the competency of someone before the board who is just not doing the job they should be doing in representing someone.
Thank you for the question.
The cases I mentioned where we've reported counsel to a regulator, whether it's the immigration consultant regulator or a law society, are what I would call the more egregious cases. They're the clearest of instances where we feel there's been a breach of professional standards or the code of ethics. That said, there's a large grey area. The quality of representation may not be so bad as to justify reporting the person to a regulator, but it still leaves a lot to be desired. I think that's the area we tend to focus on in terms of trying to work with the regulator and with professional immigration consultant groups to raise the standard of practice.
In my mind—and I'm only speaking from the board's perspective, obviously—there's a big distinction between the litigation work we see and the kind of work that involves assisting a client to fill in applications. Lawyers go through three years of law school, through an articling period. They have to be called to the bar. It's a more rigorous regime than the one that's expected of immigration consultants. Certainly when it comes to the question of litigation, there is considerable scope for improvement when it comes to immigration consultants acting as litigators.
Is there any way to protect the applicants or the poor victims?
The problem we see, as you've heard from my colleague in the opposition, Ms. Dzerowicz, is that applicants seeks to come to Canada and apply under a program. This could be some sort of worker program, temporary foreign worker, or otherwise. The applicants seek a Canadian agent who does things, as Mr. Saroya said, and wants money first, then money later, usually in cash.
They get themselves caught in a catch-22, where if they report the person, either the employer or the agent doing this, their own immigration is in jeopardy. The only option is to carry on with the system.
I'm finding that a complaint mechanism isn't working because as the whole panel has said, it usually only happens if they get rejected. If the applicants are rejected, they feel comfortable enough to report it. While they're in the system or when they're being abused, they're not reporting any of this.
Perhaps I can ask Ms. Lutfallah, are there any other mechanisms you see that might help enforcement and those who wish to complain?