Citizenship and Immigration Committee on Oct. 27th, 2010

[The Chair, Conservative, David Tilson]

Good afternoon, ladies and gentlemen. We'd like to call the meeting to order.

This is the Standing Committee on Citizenship and Immigration, meeting number 29, on Wednesday, October 27, 2010. Pursuant to the order of reference of Thursday, September 23, 2010, we are studying Bill C-35, An Act to amend the Immigration and Refugee Protection Act.

We have a number of guests before us. Some of the guests are on the video conference from Winnipeg.

However, before we start, I'd like to make three announcements. One, Mr. Rafferty and Madame Beaudoin , perhaps, if you could tell Monsieur St-Cyr and Madam Chow that if there are any amendments to this bill, we will be doing clause-by-clause a week today, which is November 3. Amendments must be at the clerk's office, or given to the clerk here, on or before noon on November 2, which is the day before.

There is a notice going out today. You could pass this on to Monsieur St-Cyr and Ms. Chow, although they will get notices: the subcommittee will be meeting on Monday after this meeting, which is at 5:30 p.m. on Monday, November 1, unless there are votes, in which case, I guess, it will be cancelled. Assuming there are no votes, we'll have a subcommittee meeting on Monday.

Also, just so you don't come down here, all meetings next week will be in Centre Block.

Those are my preliminary remarks. I'd like now to introduce to members of the committee our guests, our witnesses.

Before us here is Matrixvisa Inc., immigration law and international recruitment. We have Cobus (Jacobus) Kriek, the director, before us here in the committee room.

We have, by video conference, the Government of Manitoba, it says here on our agenda, and we have two people before us. Fanny Levy is the acting director of the Manitoba provincial nominee program and Dave Dyson is the executive director of the employment standards division with Manitoba Labour and Immigration.

Can the two of you hear me?

[Fanny Levy, Acting Director, Manitoba Provincial Nominee Program, Government of Manitoba]

Perfectly, yes.

[Dave Dyson, Executive Director, Employment Standards Division, Manitoba Labour and Immigration, Government of Manitoba]

Yes, perfectly.

[The Chair, Conservative, David Tilson]

Thank you for coming.

Mr. Kriek, you will have up to seven minutes to speak first. Welcome to all of you.

[Cobus, Jacobus) Kriek (Director, Matrixvisa Inc.]

Mr. Tilson and respected committee members, my name is Cobus Kriek. I'm a member in good standing of the Canadian Society of Immigration Consultants. I'm also the owner of Matrixvisa Incorporated. Thank you for the opportunity to allow me to share my thoughts with you today. It is a privilege and an honour to be here.

I only have two suggestions. The first suggestion has to do with proposed subsection 91(1) of Bill C-35, and the second suggestion is about the definition of immigration law advice. I will start with my first suggestion about proposed subsection 91(1).

The proposed wording of subsection 91(1) reads that “...no person shall knowingly represent or advise a person for consideration...in connection with a proceeding or application” under the Immigration and Refugee Protection Act. I suggest that the wording be changed or expanded to include anyone who induces, aids, abets any ghost agent to directly or indirectly represent or advise for consideration under the Immigration and Refugee Protection Act. Such a change would discourage a federal employee inside or outside Canada from accepting submissions from or communicating with an unauthorized ghost agent about immigration cases, which I have seen happening in 2010.

This brings me to my second suggestion on defining immigration law advice. Under the current dispensation, that is, in the pre-Bill C-35 era, it is perfectly legal and, one could say, ethical for anyone to provide certain immigration law advice without being a member of CSIC, the bar, or a public notary in Quebec.

I hold in my hand chapter “IP 9—Use of Representatives Paid or Unpaid” of the department's immigration manual. Paragraph 5.4 reads as follows:

...there are many individuals who receive payment for filling out forms and applications.... However, as these individuals do not meet the definition of an authorized representative, there are functions that they cannot perform. These functions include making interventions on behalf of the applicant during processing, and requesting information about the progress of the application. In order to make interventions and request information on behalf of the applicant during application processing, these individuals must be members of one of the regulatory bodies.

It is clear that CIC believes that immigration advisers only need to be authorized representatives when intervention is needed or inquiries are made. According to CIC, any immigration law advice given prior to an inquiry can be completed by anyone.

If an unauthorized representative or ghost agent is allowed to complete forms and applications, it implies that the unauthorized representative or ghost agent may provide advice about the appropriate immigration class, such as the investor class, federal entrepreneur class, federal skilled worker class, etc., as this activity would logically precede the completion of forms and applications. The completion of forms and applications would only be possible after an analysis of the person’s experience, education, and financial status.

It is very obvious that the completion of forms and applications is not merely an administrative action, but requires in-depth knowledge of immigration law. Consumers cannot be protected if any untrained person can assist a member of the public to complete immigration forms and applications.

On 18 October, Mr. Nigel Thomson mentioned before this committee that CSIC has about 1,600 to 1,700 ghost agents in its intelligence system at CSIC. Given the wording of chapter IP 9, which I have just read, many of these ghost agents are not in contravention of any act and are conducting their immigration work completely legally. The existence of ghost agents in the immigration law industry is directly related to the wording in the immigration manual's chapter IP 9, which I have read to you. This wording in turn is the result of the policy vacuum that exists in the current legislation, as immigration law advice is not defined in the Immigration and Refugee Protection Act or regulations.

In order to prevent the continued unauthorized practise of immigration law, it is suggested that the words “advise...under this act”--or immigration law advice-be clearly defined in Bill C-35 and not be left to be defined in the regulations. The following wording is suggested:

Advice would be any guidance offered by one person to another on any immigration matter where profit is directly or indirectly a result of the advice. Specific cases (not limited to): (a) Recruiters may not provide immigration advice or advise under the act; (b) Education agents may not provide immigration advice or advise under the act; (c) Recruiters for provincial nominees may not provide immigration advice or advise under the act; (d) Assistance with the completion of forms is also immigration advice or to advise under the act.

Specific examples in the act will prevent a misunderstanding of the intention of the lawmaker. Furthermore, specific examples are already being used as a technique in the case of immigration regulation 187(2).

It must be recognized that ethical recruiters who comply with provincial laws play an important and valuable role in the immigration process, both for permanent and for temporary entry. However, recruitment is a function related to human resources management, not immigration law. Recruiters are not trained in immigration law and the immigration activities of recruiters are not regulated to ensure the protection of the public.

[The Chair, Conservative, David Tilson]

Thank you for your presentation, Mr. Kriek.

We will now hear from the representatives of the Government of Manitoba.

I assume, Ms. Levy, that you will be making the presentation.

[Fanny Levy]

Yes, that's right.

[The Chair, Conservative, David Tilson]

Thank you for coming, both of you.

You may proceed. You, too, have up to seven minutes.

[Fanny Levy]

Thank you for the invitation to appear before the committee on Bill C-35 to share with you Manitoba's position and some of the efforts we have made in Manitoba in regard to regulating the activities of third party immigration consultants.

We're very pleased that the federal government is proactively addressing the issue. As you may know, the protection of vulnerable immigration clients, such as temporary foreign workers, has been a priority in Manitoba that we are addressing through provincial legislation called the Worker Recruitment and Protection Act.

We believe that complementary provincial and federal regulatory systems will advance protective measures for immigrants, and we have some suggestions in regard to the selection of a regulator for immigration consultants.

We believe that regulatory capacity needs to have the power to sanction and regulate immigration consultants and to seek judicial enforcement of the disciplinary consequences imposed on the members.

We also believe that it's important that dissatisfied members and the public and others are able to influence the regulatory body's internal functioning through a formal review process.

We believe the Government of Canada should be involved in the affairs of any new regulator until it's fully functioning.

We also support the view that the relevant federal regulatory and enforcement authorities should work with their provincial partners to coordinate investigation, communication, and enforcement efforts to ensure that unregistered immigration consultants are either referred to the appropriate authorities for sanction or are prosecuted under existing federal provisions.

We believe the Government of Canada should ensure that the new immigration consultants regulator institutes a third party, no-cost complaints process in respect of unauthorized or improper representation to support immigrants who lodge complaints. We also want immigrants to be informed that their complaints to the regulator will have no negative impact on their immigration applications or proceedings and that the regulator has a prosecutor or investigator who will represent the public interest in prosecuting misconduct.

I mentioned the Worker Recruitment and Protection Act that came into force in April 2009 in Manitoba. I want to share with you some of its highlights.

First of all, it extended coverage to include the protection of children in the modelling industry from sexual exploitation, but it also protects foreign workers from unscrupulous recruiters and employers. It requires Manitoba employers to register with the province prior to undertaking any foreign international recruitment efforts.

It allows the province to provide two different types of service. First, it will educate employers about what they have to comply with in terms of the legislation. Second, it will help them access support for the ethical, coordinated international recruitment of skilled workers through international agreements with Manitoba. Employers can also receive assistance to identify a local pool of immigrants who are already in the province. There is no cost for this service.

I will list some of the key provisions of WRAPA in terms of the provisions for employers. They must register with the province. They have to declare that they are using the services of a third party recruiter, who must be licensed to provide those services in Manitoba. They must pay any recruitment fees owed to a licensed recruiter; temporary foreign workers cannot and should not be responsible for paying any recruitment fees. Also, they cannot apply for a labour market opinion before being registered by the Province of Manitoba.

Employers using an unlicensed recruiter are liable for fees charged to workers, and fines can go up to $50,000 for corporations. Of course, they may be ineligible to reapply for registration.

In terms of recruiters, they must be licensed by the province, and to obtain the licence they need to be members of the Law Society of Canada, the Chambre des notaires du Québec, or, currently, CSIC, and they must present a letter of credit for $10,000. Also, they are liable for charging any recruitment fees to workers.

To date, we have about 2,400 employers who have been registered through this legislation. We receive an average of 150 applications a month, with an average of 135 approvals. These registrations are completed in two or three weeks.

We've seen many improvements with this legislation. First of all, information-sharing agreements that we have developed with governments, law enforcement, and regulatory agencies allow the province to monitor, investigate, and enforce legislation. It gives us the ability to refuse or revoke a licence, to investigate, to recover money on behalf of workers, to prosecute offences of WRAPA, and to fine individuals up to $25,000--and $50,000 for corporations--for non-compliance with the legislation.

We firmly believe that it has been very successful in preventing countless workers from being exploited, and it provides the province with the tools needed to protect these workers once they are already in the province. We have created a new special investigation unit to administer WRAPA and to handle all investigations related to it.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you, Ms. Levy.

To the witnesses now, each caucus has up to seven minutes to ask questions and for answers to be provided.

The first person to have the floor is Mr. Wrzesnewskyj.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you, Mr. Chair.

Mr. Kriek, on page 7 of your submission, you list categories (a) to (f) that are acceptable and legal for a recruiter to do work in. Then you make your argumentation after you list these off.

I note that (a), (b), (d), (e), and (f) quite directly involve themselves with the Immigration Act, etc., but (c) is strictly a submission of a request for a labour market opinion pursuant to the immigration regulations. Perhaps someone could do a labour market opinion without actually being engaged on a case file. Would you consider that this one perhaps shouldn't necessarily be lumped together with the rest of the ones you've listed off in (a) to (f)?

[Cobus (Jacobus) Kriek]

I think it should be lumped together. Bill C-35 clearly indicates that, in order to represent a party under any submissions under the act, proposed section 91 does not exclude LMOs and AEOs. I'm just following what's written in Bill C-35.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Here's what I'm curious about, though. What if it's not a submission on behalf of an actual party? What if it's strictly to get a labour market opinion?

[Cobus (Jacobus) Kriek]

It is a submission on behalf of a party, which is an employer. It's an employer-driven program.

Secondly, LMOs are an extremely complicated part of the law. It's not as plain or straightforward as people would believe it is. We see a significant number of refusals in British Columbia and Alberta. I have the statistics here; I can look them up and give them to you.

But given the fact that proposed section 91 indicates that all submissions under the act should require representation, and the complexity of regulation 203, I believe it's....

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you.

Ms. Levy, you have a very successful program in Manitoba. It appears that you're recruiting about 1,500 people per year and you seem to have put in place a pretty good regime in terms of enforcement.

The maximum penalty, if I heard correctly, is $50,000. Is that adequate? Do you think the $10,000 maximum penalty that the federal legislation envisions is adequate?

[Dave Dyson]

I can answer that question. I administer WRAPA, and it's my enforcement people, my investigators, who investigate it. It's built into my employment standards division.

The business registration process is such that if we catch employers doing something wrong, for instance, using an unlicensed recruiter, we will not provide them another business registration, meaning they will not be able to apply for LMOs for the federal government, and meaning we won't allow them to bring in foreign workers anymore. We find that on the employer's side that's a much bigger stick versus prosecution.

In dealing with recruiters, if we catch licensed recruiters who would be either CSIC members or law society members, the first thing we would do is report them to their governing body. We have a very strong information-sharing provision. It would mean that they could potentially lose their CSIC membership for violating our provincial legislation, which again I think is a far bigger stick than prosecution. I don't believe we'll ever have to go down those roads.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Thank you. That's actually quite helpful as we go forward on this legislation.

I'm also curious about some of the details. We have a program that's viewed as a successful program. What are the major source countries for your foreign workers?

[Fanny Levy]

For foreign workers, the Philippines will be one of our main source countries, along with China and Colombia. Those will be the top three. We also get workers from Germany and the U.K.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I'm curious about the program and Ukraine. I know that it's actually been lauded as well. I believe there was a real lack of skilled workers when it came to butchers in the province of Manitoba. It's a very specialized field, in fact, and many people were brought in under that particular category.

Who would the province work with in Ukraine? Obviously it would go through our consular section at the embassy, but who are their contacts? Is it the oblast governments—the equivalent of provincial governments—or any particular oblast government, or is it the national government there?

[Fanny Levy]

I believe we work through the Canadian embassy. When we talk about the main source countries for this specific occupation, it would be Colombia and Central America mostly, with some workers from China, and also some from Ukraine. I think it's been focused on Colombian workers in the past year. But we work with the Canadian embassy.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Okay. So you don't know who they actually work with in the consular section in Kiev at our embassy. Do they work with the local equivalent of provincial governments or with the national government?

[Fanny Levy]

I don't have that information. I can get that information for you.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

If you could, and also if there's a specific agreement that was signed with government authorities there, it would be helpful. Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Plamondon.

[Louis Plamondon, Bloc, Bas-Richelieu—Nicolet—Bécancour, QC]

Thank you, Mr. Chair.

I would first like to address the people from Saskatchewan.

Ms. Levy, you talked about immigrant workers: 1,500 per year. I have a question that is somewhat related to my Liberal colleague's question. On the question of recruiting, I assume you usually go through the Canadian embassy, mainly the one in Hong Kong, to be able to ask to select your skilled workers, which moves them ahead of the others on the waiting list for immigration. Is that right? These people immigrate via the Embassy of Canada as skilled workers. As well, you recruit on the international scene yourself. Is that accurate?