Citizenship and Immigration Committee on April 9th, 2008

[Nina Grewal, Conservative, Fleetwood—Port Kells, BC]

Mr. Chair, I would like to pass the remainder of my time to Mr. Khan.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Thank you very much.

Again, welcome.

Please help me understand. You regulate only individuals or also organizations?

[John Ryan]

We regulate only individuals. I know the Interpretation Act defines persons as being both individuals and persons, but the minister's advisory committee on the regulation of consultants basically said that we would regulate individuals.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

Would you like to see the organizations also regulated by you? What are the disadvantages of not having that? What is going to stop some consultant from going out there and forming an organization just to avoid being regulated?

[John Ryan]

Forming an organization won't protect them from regulation if they receive a fee as an authorized representative. Organizations don't have standing before the government, and that's the catchphrase. The government decides who can appear before it. Organizations, if they're non-profit, if they're charitable, can appear in front of the Government of Canada.

This is a thorny issue. It's certainly something we hope the government is able to address, where people would hold themselves out as unauthorized representatives by sheltering themselves as a non-profit or charitable organization. But we think that's for the government, at this point, to deal with. We're currently building out what we need to do in our mandate.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

How do you regulate not just individual abuse by rogue consultants but the members who go on misrepresenting the policy to direct business in their direction?

[John Ryan]

If we're made aware of it or we become aware of it, we will hold the member to account. There are strict advertising guidelines given by the society. Those are available on our website. There is a code of conduct.

We have just had our first professional misconduct decision, which is publicly available from our tribunals on our website. We are very serious about getting the guys who are bending the rules, and if they're our members, we will take action. But again, you can build the most perfect regulatory system, but unfortunately you cannot legislate honesty.

[Wajid Khan, Conservative, Mississauga—Streetsville, ON]

How would you handle an individual who goes on the media—radio or television, or otherwise—and says, “Oh, with this particular regulation, the immigration officer, if he doesn't like your perfume, can reject your case or take this draconian measure,” that kind of stuff?

[John Ryan]

That's a good question.

We live in a free country. People can go around saying a whole bunch of things. People have said some things to this committee that may or may not be up to snuff. The reality of the situation is, how do you control them? There are advertising codes of conduct. There's a code of conduct, and if they breach our code of conduct and we have the grounds, the investigations, and the evidence, we will hold them to account.

[The Chair, Conservative, Norman Doyle]

Thank you.

Thank you for your time, Mr. Ryan, Mr. Qayyum, and Ms. Augenfeld, in coming here today. You've given us an awful lot of good information, and you've corrected some of the things we've heard as we've gone on the road. Of course, our committee will examine all these things and make recommendations to government, to the minister, and undoubtedly your views will be taken into account as well.

We'll suspend for a moment or two to allow other people to get to the table.

[The Chair, Conservative, Norman Doyle]

I want to welcome our second panel here. We have, from the International Association of Immigration Practitioners, Ramesh K. Dheer, national president

From the Canadian Association of Professional Immigration Consultants, we have Philip Mooney—a familiar face—national president. Welcome again, Mr. Mooney. We also have Alli Amlani, president of their Ontario chapter.

And from the Registered Immigration Consultants Association of Canada, we have Sean Hu, director.

And from the Law Society of Upper Canada, Malcolm Heins, chief executive officer, and Ms. Julia Bass.

Thank you.

I think you know how the committee operates. We allow for opening statements, and then we will engage you in questions and comments.

So who do we begin with? Do you want to speak, Mr. Mooney?

[Philip Mooney, National President, Canadian Association of Professional Immigration Consultants]

Thank you very much, Mr. Chair and committee members. I just hope that familiarity doesn't breed contempt.

Our remarks and our presentation today will actually be very brief. We would like to leave lots of time for questions. I'd also like to apologize in advance for the simple nature of the comments I'm about to make. There was a time in my corporate life when I used to think that the more I wrote, the more I said, and the more technical language I used, the smarter I looked. Then I became a grandfather and I realized that simplicity is certainly a much better way to go. So I hope you'll accept my remarks in terms of better communication.

Thank you.

On your website, in the statement describing the purpose of these hearings you reference immigration consultants and state, I quote: “While many immigration consultants provide valuable advice and services to their clients, some unscrupulous ones provide poor and even unethical advice and services, sometimes charging unconscionable fees to a client base that is ill-equipped to seek redress.” You go on to say that you want “to identify issues and make recommendations to address abuses, within the federal jurisdiction”.

Our presentation today deals with the rules concerning authorized representatives and how the intent of the Immigration and Refugee Protection Act has been subverted by a single phrase in an operations manual. As you heard Mr. Ryan state, which I think is worth repeating, regulation 13.1 states that “no person who is not an authorized representative may, for a fee, represent, advise, or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the board”.

The intent of the act is clear. Consumers must be protected, so Parliament decided that immigration consultants must be regulated. CSIC was set up to achieve that task. The wording of the regulation is clear. Authorized representatives are defined and are described as lawyers, members of the Chambre des notaires du Québec, and CSIC members.

The limitation of the regulation is perfectly clear. It applies only if a fee is charged. Yes, it was clear to everyone, except apparently CIC. Sometime after the regulations came into effect, CIC inserted in part 9 of their inland processing manual, which is the instruction by the department to its officers, one simple phrase that protects unregulated agents. That instruction reads: “It is important to understand that CIC, the IRB, and the CBSA are interpreting the regulations to mean that R13.1(1) does not apply to any representations that are made to a client before an application is submitted to CIC.” In other words, an applicant is obliged to disclose the name of their representative on the use-of-representative form only if the individual will represent them once the application is submitted to CIC, either at the time of submission or post-submission.

Now, you're holding hearings because abuse persists. Because of IP 9, unregulated consultants can not only operate with impunity, they can advertise on billboards in front of CIC offices. They can and do advertise their services on websites. They can and do advertise their services in the ethnic press. And then some are so brazen as to state, when a customer receives an inquiry from CIC after the application and is panicking about a possible refusal, that they cannot help because the application has now been filed and it's illegal for them to do so.

The intent of the act is clear. The wording of the regulation is clear. The solution is also clear. CSIC is in place to police the activities of regulated consultants, but who can pursue unregulated consultants, especially when you have IP 9 clouding the issue? Changing the wording in IP 9 to the effect that representation starts when a fee is paid or arranged to be paid for a service would allow all authorities involved to pursue unregulated agents. This would help to control abuse outside the profession, because only those actually authorized could legally be advising, preparing, and submitting applications on behalf of clients for a fee. All others would be subject to the penalties under law for issues such as fraud, misrepresentation, etc.

We can all conjure up a picture--and I think this speaks to the intent of the act--of a dingy café in a foreign land, or maybe even a bright cheerful café in downtown Toronto, where a poor unsuspecting consumer is cheated of his life savings by someone who promises him a service. That person advises the consumer on what's possible and even prepares applications to be filed over the customer's signature. We all agree that this consumer needs protection, even if the unregulated agent is actually experienced, well-intentioned, and competent, since we know that CIC will not deal with that person if problems arise at a later date.

We know that you've heard submissions on various issues concerning consultants, but in our opinion, this issue alone does more to affect consumer protection than all other issues combined. The remedy we propose is very simple. The wording of IP 9 must be changed. By changing a few words, we give the authorities in Canada the tools necessary to enforce the law as Parliament intended, so consumers are protected. By changing a few words, we give our associations and members the moral authority to write offshore publications and ask them to stop running ads for unregulated agents. By changing a few words, we bring the provision of immigration-related services in line with the provision of other legal services. By changing a few words, we restore integrity to the system. By making a recommendation to CIC to change a few words in IP 9, this committee will move closer to achieving its objectives.

I've kept my remarks simple. I would now like to yield the microphone to my associate Mr. Amlani, whose expertise in this area is unequalled and who actually has a technical explanation for some of the information that's included in our brief.

Alli.

[Alli Amlani, President, Ontario Chapter, Canadian Association of Professional Immigration Consultants]

Thank you.

We've planned our timing well for this presentation. I am involved with this to answer any questions. Having been around the practitioners' business for 20 years, I know we have done this before and we're going to do it again.

Everyone has been provided material, and I'd just like to be able to explain that. The first four pages of our material is a representation that was made in July 2005, again to the standing committee, and we're back here four years later doing the same thing again. This time, I'd like to be able to explain it better, from the technical perspective, to explain the wording. I've actually taken out abstracts from IP 9, which Mr. Mooney has alluded to, and which Mr. John Ryan has alluded to, and I would like to go a little deeper into these, because we've argued with the department ever since June 28, 2002, to explain this, and we don't seem to be getting through.

In our speaking notes, in the paper we presented, on pages 5, 6 and 7, we have provided the exact wording of the manual that contains the defect. I have underlined the words that are effective. Again, section 13.1 says “represent, advise, or consult”. The use of the word “or” makes “represent” independent, “advise” independent, and “consult” independent. If you look at IP 9, it basically says anybody can give advice to anybody before the application is filed. Mr. Telegdi mentioned that in New Delhi people lining up were advised by a consultant, and so on. We hear horror stories. This will continue.

I have highlighted or underlined the part where the manual clearly says that before the submission, any advice can be given. Before the submission, application forms can be prepared, and this is the problem. If you look at the call you've made for this meeting, it addresses the issue of people who are beyond the purview of CSIC.The last part here, 9.2, talks about how to make a complaint. It says to just send the information over to CSIC so they can be careful in choosing future consultants, or to the Better Business Bureau. It doesn't direct people to CBSA, to enforcement. We need to be able to do enforcement.

The last part of my paper describes the penalties under sections 126, 127, and 128. They do not say those are for Canadians; they are for everyone in the whole world.

With that, I would like to thank you for your indulgence. Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Amlani.

Mr. Hu.

[Sean Hu, Director, Registered Immigration Consultants Association of Canada]

Good morning, Mr. Chair and committee members. Thank you for this opportunity.

My presentation will deal with three questions regarding the regulation of immigration consultants: what is not working, why is it not working, and what will work in the regulation of consultants?

What is not working? Let me say right at the outset that the Canadian Society of Immigration Consultants, known as CSIC, is not in a position to provide consumer protection. Let me use the numbers to make the point. According to the affidavit of Mr. Ben Trister, the former chair of CSIC, in a 2004 court case, at the time CSIC was established Citizenship and Immigration officials estimated that there were around 3,000 Canadian immigration practitioners who were potential members of CSIC. But the barriers set by CSIC, such as high fees, the denial of grandfathering, and the unfair language tests, have prevented about half of the 3,000 consultants from joining CSIC. So at the very beginning, the industry lost the opportunity to regulate, to bring those consultants under the new regulatory regime.

Then, according to Mr. Ben Trister's testimony in April 2006 at the Legislative Assembly of Ontario Standing Committee on Justice Policy, at the time he resigned as CSIC chair in October 2005, the number of CSIC members was still around 1,500. Now, if we check the CSIC website, 964 of these members have either resigned or been eliminated. This means that a significant number of CSIC members currently listed on its website are new graduates from various college immigration study programs. It also means that the real immigration practitioners who have current CSIC membership represent only 20% to 30% of the 3,000 consultants who have been practising in this market. Even if we assume that CSIC is doing a perfect job of regulating its members, it can play a very limited role in providing consumer protection in this industry as a whole.

What is not working? Why is it not working? CSIC experience has shown that the self-regulatory society model for regulating consultants is not working. I'll give you two of the reasons.

One reason is incompatible objectives. We believe there are two major aspects in the regulation of consultations. One is to regulate consultants' conduct in order to deal with those so-called unscrupulous consultants who defraud their clients and abuse the immigration process. The other aspect is to regulate consultants' professional qualifications to ensure competence.

We should not be confused with these two different dimensions of regulation. Other self-regulatory professional organizations, like law societies and accounting associations, have been able to combine both areas of regulation. Unfortunately, in the case of immigration consultants, the two objectives--regulating conduct and regulating competence--are incompatible. If you are focusing only on professional competence and eliminate the majority of consultants, you will lose the opportunity to regulate their conduct.

Second, it's a passive membership. Most consultants are not able to participate or get involved in the affairs of the society due to their unusual diversities and various other special reasons. So a self-regulatory society with limited member involvement would create opportunities for a small handful of people to control, to manipulate, and even abuse their authority.

Now what will be working? Let's make no mistake about it. We want regulation in this industry. In the past few years we have written to various government bodies calling for real regulation of consultants, meaningful protection of consumers. We would support a regulatory regime based on the following four principles.

One, it should be focused on regulating conduct rather that competence.

Two, it should be fair and inclusive. There should be grandfathering. No language test should be used to eliminate ethnic consultants.

Three, it should be transparent and accountable, preferably a government authority set up as a regulatory body. Right now, CSIC is accountable to nobody. You can imagine the frustration. When you complain to the ministry, the answer you get is that CSIC is operating as a private organization, operating at arm's length from the government. Right now, things are getting even more out of hand, because you have CMI, a business corporation, operating at arm's length with CSIC.

Four, the last principle, it should be efficient and cost-effective to make the fees affordable to consultants.

In the final analysis, the failure of CSIC, the division within the consultant community, the growing public distrust, and the prejudice against ethnic consultants will all have a long-lasting adverse impact. There is no doubt that the industry is less regulatable than it was four years ago.

The question is whether it matters. Maybe not. The four years of regulation have allowed us to see it all. Who really cares about immigrants? Who really cares about consultants? The regulation was never about them; it's all about money.

[The Chair, Conservative, Norman Doyle]

Can I interrupt you there, Mr. Hu? Because time is moving along, we really need to give our people some time to question and what have you.

I will go to Mr. Heins.

[Malcolm Heins, Chief Executive Officer, Law Society of Upper Canada]

I'm here today, ladies and gentlemen, to give you the perspective of the Law Society of Upper Canada with respect to the regulation of immigration consultants.

We were founded in 1797, and we're the oldest regulating authority in Canada. Of course, in fact we predate Canada. We are a creature of statute; in fact, we were created by statute in 1797. That's really going to be the essence of my remarks here today.

The problem with the regulatory model that was put into place by Citizenship and Immigration Canada is that it was really an exercise in expediency to create a regulator quickly, without statutory authority.

CSIC was a creation of Citizenship and Immigration. It agreed to fund CSIC for the first two years. It agreed to pass a regulation that would restrict the ability of immigration consultants to appear unless they were members of CSIC. The regulation also exempted lawyers and members of the Chambre des notaires.

Now we, the law society, when this regulation was first proposed in 2003, pointed out to the department that this whole model was flawed and would ultimately fail. I think—just listening to the comments that have been made here this morning—that most of those comments are enumerated in the letter I wrote to the department in January 2004. I have that letter here today, if anyone is interested in looking at it.

Despite the concerns we raised, the department went ahead and passed the regulation and in effect validated CSIC. Now, I'm not casting any aspersions at all on the motives of CSIC itself. What I'm saying is that the organization can't function in the legislative architecture that's been created here by the government.

You've got to go back to square one and redo it. You need to redo it in conjunction with each of the provinces. Across the country we all regulate legal services, as law societies and as the Chambre des notaires. We need to sit down and reconstruct a proper statutory model.

We've just gone through this. In the last year, our authority in Ontario was increased to regulate paralegals. So we are now regulating 2,000 paralegals, in addition to 38,000-odd lawyers. So we actually have some very on-the-ground experience with how you need to go about this and what you need.

But as I listened to the other speakers this morning, and being aware myself of some of the challenges that are being faced in this area, I find the problem quite simple. You can't think you're going to regulate immigration consultants through a voluntary private corporation. You're going to have to create a statutory model, a proper one with an authorized statute from Parliament, so you can prosecute, investigate, and—as was indicated here—not only deal with the competency side but also deal with the enforcement side. Clearly that's where you've got a significant problem.

That's the essence of my remarks, Chairman.

[The Chair, Conservative, Norman Doyle]

Thank you very much.

Mr. Dheer, did you have anything to say, or can we go to questions? Do you want some time for an opening statement?

It's up to you.

[Ramesh Dheer, National President, International Association of Immigration Practitioners]

I could speak for three or four minutes, if you want. Is that okay?

[The Chair, Conservative, Norman Doyle]

Yes, indeed, sir. Please feel free to do so; you go right ahead.

[Ramesh Dheer]

First of all, I have to apologize for being late. Thanks for the invitation. I live in Mississauga, and as everybody knows, the weather is bad.

Anyway, we're mainly talking about consultants right now. I have personally been in this profession for the last 32 years. I have gone through all kinds of situations in the profession. Eventually CSIC was created, and I had the pleasure of serving the minister as a member of the advisory committee regulating the consultants. So I know all of the background to what we have gone through.

CSIC, as I just said, has gone through a lot of challenges and turbulent times. In any new organization, as we all know, especially in a professional body, you are governed by certain rules, ethics, and the whole bit. In my view, CSIC has just come out of its infancy; they are growing and becoming mature. Guaranteed, everything may not be satisfactory, but I think there is an effort on the part of the management to keep CSIC on the right track; we know that a lot of people are watching us. The idea is to keep the consumer in a safe situation while we practise our profession.

Some of you know that when CSIC was created, our association, the International Association of Immigration Practitioners, went to court against CSIC on reasons of principle. Somehow it was resolved amicably with respect from both sides. Ever since, we have supported CSIC and their recent achievements wholeheartedly, including the new institute they have set up, which is going to give courses and continuing education for those already practising.

The main problem we have in our profession is the ghost consultant. Some speakers may already have spoken about this. I know that in the last four or five years, since the regulation of the consultants was done, the business has gone down. A lot of people are complaining, including me. One of the main reasons being talked about is the ghost consultants.

We suggest that the minister, or CSIC, should be given the mandate. Our Australian counterparts and the licensing body in the U.K. have the mechanisms to nail down any unauthorized consultants who practise. I think we have to come up with some kind of arrangement here in Canada. Either the minister should take this responsibility or CSIC should be mandated to do this part of the work, because we are the people who are certified; we are the people who pay money to CSIC. At the same time, although CSIC is there for the protection of the consumer, we also have to be protected to practise our livelihood. It's our suggestion that some arrangement should be made so that our profession is protected.

As I said, I do commend the work done by CSIC management. At the same time, it's a new body. If there are some drawbacks, they can be overcome. I serve on the CSIC membership affairs committee as a co-chair, and we always encourage members of CSIC to come forward with constructive suggestions so that we can all get united and make a go of it. If everybody gets united in a positive direction, I'm sure that CSIC will emerge as a body that we can be proud of in a very short time to come.

These are our suggestions. Thank you very much.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Dheer.

We have time for four questioners, at seven minutes each.

Mr. Karygiannis.

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

My question will be short, Mr. Chair. If my colleague Mr. Telegdi also wants to pick up on something, I'll share my time with him.

Gentlemen, I want to thank you for appearing.

I do hear, “We're good, they're bad; we do it, they don't do it.” Mr. Hu said something about the competency of immigration consultants. I agree that some of the consultants who are being weeded out by CSIC do have problems with the language barrier. Sometimes when you need to communicate with CIC, you need to be proficient in the language used. Some of their forms, I grant you, even lawyers have difficulty reading.

My real difficulty is with what I heard the minister say yesterday, and officials from the department, who said that coming to Canada is not a right, it's a privilege. At the port of entry, I can see that this is a privilege for you to enter or not, but the right to apply should not be taken away from anybody. For the minister to have the right to refuse applications is certainly something that a lot of you, I think, will have problems with.

Some of you might have been consulted by the minister on the new regulations coming down. I would ask each one of you if that's the case.

[The Chair, Conservative, Norman Doyle]

You know, I'm reluctant to interfere here--

[Jim Karygiannis, Liberal, Scarborough—Agincourt, ON]

Then don't.