Bill C-35 (Historical)

An Act to amend the Immigration and Refugee Protection Act

This enactment amends the Immigration and Refugee Protection Act to change the manner of regulating third parties in immigration processes. Among other things it
(a) creates a new offence by extending the prohibition against representing or advising persons for consideration — or offering to do so — to all stages in connection with a proceeding or application under that Act, including before a proceeding has been commenced or an application has been made, and provides for penalties in case of contravention;
(b) exempts from the prohibition
(i) members of a provincial law society or notaries of the Chambre des notaires du Québec, and students-at-law acting under their supervision,
(ii) any other members of a provincial law society or the Chambre des notaires du Québec, including a paralegal,
(iii) members of a body designated by the Minister of Citizenship and Immigration, and
(iv) entities, and persons acting on the entities’ behalf, acting in accordance with an agreement or arrangement with Her Majesty in right of Canada;
(c) extends the time for instituting certain proceedings by way of summary conviction from six months to 10 years;
(d) gives the Minister of Citizenship and Immigration the power to make transitional regulations in relation to the designation or revocation by the Minister of a body;
(e) provides for oversight by that Minister of a designated body through regulations requiring the body to provide information to allow the Minister to determine whether it governs its members in the public interest; and
(f) facilitates information sharing with regulatory bodies regarding the professional and ethical conduct of their members.

[Cobus (Jacobus) Kriek]

Yes, I fully agree. If Bill C-35 could go ahead, it would make the immigration manual's paragraph 5.4 in chapter IP 9 ultra vires. This needs to be changed. This is the root cause of the problem. The existing law is not detailed enough. According to the status quo, anybody can assist a foreign national with an application, and even submit it, but cannot make an inquiry. That's the root cause of the whole issue. That's where it all starts.

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

I would like you to tell me, as an authorized recruiter, what basic requirements people who want to perform this function should have to meet. Should candidates have to be lawyers, for example? That would be asking a lot. People can't all be lawyers, but it is really dangerous to appoint just anyone as a recruiter.

Are there basic requirements you would like to see included in Bill C-35?

[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.

[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.

[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]

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?

[John Ryan]

Mr. Dykstra, I think Mr. Janzen and the regulator are not that far apart, quite honestly, and there is a public protection mandate. The law societies have part-time lawyers; they have lawyers who practice within corporations. So it's not beyond the realm of possibility that CSIC would entertain.... I remember the conversation from three years ago. Quite frankly, with 1,800 members, we have a limited $9 million budget to deliver a public protection mechanism. There was a real concern at CSIC at the time that we would not be able to have those graduated things.

But certainly, once Bill C-35 comes in, I think there is an opportunity again to have that conversation, because obviously the number of people--the base of consultants paying into the public protection mechanism--would be much greater, and therefore we can start looking at a graduated or restricted scope of practices, which I think Mr. Janzen is proposing. I don't think we're too far apart on that.

[Holly L. Gracey]

I'll try to be fast.

Thank you for inviting me here today to speak to Bill C-35. I'm the chairman of the board of directors of IMMFUND.

IMMFUND was established in 2008 to offer consumers of immigration services an added layer of protection against the potential criminal activities of immigration consultants who are members of the Canadian Society of Immigration Consultants. It is a wholly-owned not-for-profit subsidiary of CSIC, which has its own staff and board of directors. Since its inception, the fund has collected just over $1.2 million from CSIC members, who are required to make an annual contribution.

I'd like to take a moment to describe how the fund works. If a CSIC member is convicted for a criminal act in a court of law, and if that act resulted in the loss of a client's money, IMMFUND will reimburse the client for their loss. To date, there have been no claims against the fund, but we are aware of five cases currently before the courts that could result in claims.

l'II now turn to IMMFUND's position on Bill C-35. The provision for clear penalties is strongly supported by IMMFUND, because it should discourage those operating in Canada from continuing to practice outside of regulation. IMMFUND strongly supports Bill C-35 because it offers consumers added protection by closing a loophole that allows ghost consultants to front-end services and further prevents them from openly advertising their services.

Of particular concern to IMMFUND is the provision that gives the immigration minister the unilateral power to designate a regulatory body with a simple notice in the Canada Gazette. This awesome power could create instability in the immigration system. It is of paramount importance that Bill C-35 be amended to allow for the Governor in Council, and not the immigration minister, to select the regulator of immigration consultants and establish criteria under which this power would be exercised.

I want to take the opportunity to stress the instability that would ensue should any body other than CSIC be designated regulator as a result of Bill C-35. If CSIC ceases to exist, so too would IMMFUND, and make no mistake, IMMFUND provides an added layer of stability to the Canadian immigration system by offering protections to consumers that would not otherwise exist.

I was disheartened to hear one of my fellow CSIC members last week talk about the possibility of dismantling the fund. This viewpoint shows a complete lack of respect for consumers and a lack of understanding about how to run an effective regulatory body. It's important to remember that the job of a regulatory body is to protect consumers, which goes to the very heart of why it's necessary to create IMMFUND as a subsidiary of CSIC. Further, the foundations of its very existence guarantee that the assets of the fund would not be used for CSIC operations.

If CSIC is not recognized as the regulator, the $1.2 million that CSIC members have already contributed will not be returned to them, but would instead be repatriated to the parent corporation to cover any costs associated with the wind-down of its operations. I don't have to tell you that this would leave consumers without any source of potential compensation for criminal acts perpetrated by CSIC members until a new fund could be established.

IMMFUND is just one of the ways that members of CSIC work together to protect the consumers of immigration consulting services while contributing to the integrity of the immigration system. I urge this committee to act on the recommendations that IMMFUND has presented to you today in the interests of consumer protection and the immigration system as a whole.

Thank you.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

I would like to go back to the question of jurisdiction.

You mentioned the decision of the Supreme Court. Since I am not a lawyer, I will do my best with this. In my opinion, since current legislation essentially allows the federal government to decide on who will appear to represent a client, the Supreme Court determined that the government could say who it wanted to deal with and that it was its choice.

In my view, Bill C-35 is heading towards something much broader. It is not only a question about regulating who represents a client before the federal government but it is also about regulating the whole profession. This would include consultants who only do preliminary consultations, even before getting to the applications.

Would you agree with me that there is a change in the scope of the legislation? Do you think that, with this new legislation, the Supreme Court could now arrive at a different decision in terms of the federal government's jurisdiction to regulate the profession of consultant?

[Justin Trudeau, Liberal, Papineau, QC]

In your reading of Bill C-35--and you've mentioned that we may end up in a situation where only the current regulator, CSIC, actually has an application and is chosen to be the future regulator--how much changes within this system? How much of a real level of transparency is the minister going to be able to compel with the modifications brought forward by Bill C-35?

[Maria Yvonne Javier, As an Individual]

I will go first. It's my pleasure.

Good afternoon, ladies and gentlemen. Thank you for inviting me to speak before you today. My name is Maria Yvonne Javier. I was a programs director for Multicultural Helping House Society, a non-profit service provider for immigrant settlement and employment services. As an agency, we helped hundreds of immigrants settle in and adjust to their new lives in Canada. Those were the happy stories.

However, we also encountered immigrants and migrant workers who were deceived by what we now refer to as “ghost consultants”. Let me tell you how this happens.

There is immigrant or migrant worker A. That's me. I went to the website, downloaded the forms, filled them out, and submitted them. I'm here without any help from anyone. Then there's immigrant or migrant worker B, who needs an immigration consultant because they don't understand the forms, or they are rich and just want someone else to do it, or they are almost--but not quite--qualified, so they need a creative mind to help them.

A ghost consultant is defined as somebody who is not registered but is giving advice for a fee. The fees could run from $5,000 to $10,000--or even more, depending on how complex the case is. Bill C-35, as I understand it, hopes to eliminate this ghost consultant, who I would like to call “Casper”. He may be a ghost, but he's friendly; this is only business, and there is no swindling involved.

Now let me introduce you to immigrant or migrant worker C, who comes to Canada through a ghost consultant, not Casper, the friendly ghost, but a mean ghost, or a ghost recruiter with a ghost employer and ghost documents. This ghost is also a magician and can magically produce documents that look authentic enough to pass the scrutiny of Immigration and CBSA officers. Once immigrant C is outside the airport, the magician's assistant appears out of nowhere, gives him some Canadian dollars, retrieves all the ghost documents, and disappears into thin air. Immigrant C never sees this person again and doesn't even know the name of the person.

That, ladies and gentlemen, is the new ghost: not Casper, the friendly ghost, but a real, live monster. This is not an unscrupulous consultant who charges exorbitant fees; this is a major swindler.

The registered immigration consultants and your so-called ghost consultants, my Casper, are all waiting in fear to see how the bill will affect them. But this new ghost I described doesn't even care what you do, because these new ghosts are nameless and faceless, and believe me, none of the victims will give them up. They will be ghosts as long as there are desperate people who will pay anything to get to Canada. They will be there because the recession has made Canadian employers bold enough to hire illegals and pay under the table.

I'm not expecting you to eliminate this new ghost: a single bill will not do this. These people are experts, with years of experience bringing illegal immigrants to the U.S. and Europe. I just want you to understand that we are not talking about $10,000 here. This is a multi-million-dollar scam. The people I encountered said that there were 10 of them and they were the pilot project. That was in 2009. This is now the end of 2010.

I wouldn't be surprised if by now they have brought in 100 people who have each paid $10,000. That's $1 million. Your fine is $50,000. These ghosts are making a mockery out of our immigration system and have made a fool out of every legal immigrant who had to go through the tedious process. Your jail term is two years. These are not unscrupulous consultants; let's not give them nice names. These are major swindlers. Call them what they really are: criminals.

This is not to say that you should not pass the bill. If you truly believe in your hearts that this bill will eliminate the Caspers of this world, then go right ahead and pass the bill, but understand that Casper is what we call a small fish, and don't forget the big sharks. I have seen far too many heartbroken fellow Filipinos innocently deceived by these new ghosts.

Although I no longer work for Multicultural Helping House, I remain an advocate for this cause. I have put up a company, 1-800-Godmother, with me being the godmother they can run to for help. I will no longer sit back and watch this happen.

While I cannot stop the ghosts myself, I can make sure that the victim recognizes a ghost when they see one. I may be a Canadian citizen now, but I am still a Filipino, and a lot of these victims are my countrymen.

I am here before you today to respectfully request you to please find it in your hearts to understand that these people are victims. If we cannot run after the ghosts, if the ghost documents are so good that our own immigration and CBSA officers cannot tell the difference between a ghost document and a real one, then let us not take it out on the victims and send them back home.

I cannot offer you a solution. This problem has existed for decades in the U.S. and Europe. Canada is the new dreamland, so it's Canada's turn. Maybe this is the price we have to pay for being a better dreamland than the U.S.

Ladies and gentlemen, the future of these ghost consultants and their victims is in your hands. All I can ask at this point is for you to show a little compassion to the victims and show no mercy to the criminal ghost consultants.

Thank you for your time.

[The Chair, Conservative, David Tilson]

Merci, monsieur.

All those in favour?

(Motion agreed to)

We will now proceed with Bill C-35. We have two witnesses before us: Mr. Lorne Waldman, who is an immigration lawyer, and Maria Yvonne Javier.

Ms. Javier told me how to pronounce her name before the meeting started, and I appreciate that, because one of my many faults is that I have trouble pronouncing people's names. Thank you, Ms. Javier.

You each have up to seven minutes to make a presentation to the committee. Who would like to go first?

Ms. Javier, thank you for coming.

[The Chair, Conservative, David Tilson]

Ladies and gentlemen, we'll start the meeting. This is the Standing Committee on Citizenship and Immigration, meeting number 28, on Monday, October 25, 2010. Pursuant to the order of reference of Thursday, September 23, 2010, we are reviewing Bill C-35, An Act to amend the Immigration and Refugee Protection Act.

Before we start, the clerk has passed to all of you a budget for the bill we are reviewing. I trust you've all received it. I would like someone to move a motion that this budget be adopted.

[Alice Wong, Conservative, Richmond, BC]

In the existing law the rule applies only during the process. The new bill, which we're presenting to the House right now, Bill C-35, states that even before they actually go to the proceedings, whoever gives them advice is under the jurisdiction of this bill.

How would that help the IRB?

[Alice Wong, Conservative, Richmond, BC]

Thank you.

You did mention one way that Bill C-35 can help IRB to turn your policy into something you can put into practice. What other practices will change at the IRB as a result of this bill?