Citizenship and Immigration Committee on Oct. 20th, 2010

[Dr. Sean Rehaag, Assistant Professor, Osgoode Hall Law School, York University, As an Individual]

Thank you very much for the invitation.

My name is Sean Rehaag. I am a professor at the Osgoode Hall Law School, where I specialize in refugee law. I'd like to speak to you today about the role of immigration consultants in Canada's refugee determination system.

Immigration consultants operate in two very different fields. The first field is immigration law. Immigration law obviously involves people who want to come to Canada to work, to study, to immigrate, to visit. Immigration consultants basically help people fill out their application forms, and they occasionally represent people with respect to those applications at the Immigration and Refugee Board. The second field where immigration consultants operate is with respect to refugee law, where immigration consultants assist claimants in preparing their claims and they also represent claimants at their refugee hearings.

Now, without wishing to minimize the significance of immigration decisions, it's important to note that refugee determinations carry very serious consequences. Indeed, they carry life and death consequences. Where a person meets the refugee definition but is not recognized as such because of errors in the refugee determination process, the possible consequences are that a person will be removed to a country where they face persecution, torture, or even death.

In light of those extremely serious consequences, I think there are a number of reasons immigration consultants, who I think have an important role to play in the immigration system, should not be involved in the refugee determination process. I'd like to go over some of those reasons quickly.

The first reason is that immigration consultants have lost the confidence of the Canadian public. As the standing committee's report on immigration consultants in 2008 noted, there are many reports of immigration consultants failing to adhere to basic norms of professional competence and professional conduct. The government is taking measures to try to address these concerns, including through the bill that's under discussion today. But regardless of those efforts, it is going to take some time before the immigration consulting industry will be able to establish a solid track record of ensuring that immigration consultants act in accordance with standards of professional conduct and professional competence. In my view, until such time as that track record has been established, which will take several years, immigration consultants should not be involved in life and death refugee determinations.

A second reason I believe that immigration consultants should not be involved in refugee determinations flows out of some research I'm doing on various factors that affect outcomes in refugee claims. I've been doing access to information requests to the Immigration and Refugee Board and putting together data on refugee determinations. That data indicates that in 2009 only a relatively small number of people used immigration consultants in the refugee determination process. Only about 5% of folks who came before the refugee protection division were represented by immigration consultants; the vast majority were in fact represented by lawyers. In addition, where claimants were represented by lawyers, the success rates were quite high; they hovered around 55%. During the same period, where claimants were represented by immigration consultants, the success rates were much lower--around 35%.

There are a couple of different ways you can interpret these variations. One way of interpreting the variation is that immigration consultants are more likely to bring forward unfounded claims than lawyers. I think the government, given that it has an interest in reducing the number of unfounded refugee claims in Canada, may be concerned about that possibility.

The second possible explanation is that there are at least some folks who are represented by immigration consultants who meet the refugee definition but are not being recognized as such due to problems with their representation. That raises serious concerns in terms of the consequences for claimants.

Regardless of which of these explanations is true, the variations in the success rates give cause for concern with respect to the participation of immigration consultants in the refugee determination process.

A third and final reason why I believe immigration consultants should not play a role in the refugee determination process relates to the reforms that are occurring in the refugee determination process. So as you know, the Balanced Refugee Reform Act, which will come into effect in the next year or two, changes the refugee determination process, and one of the changes is that there will be a whole new cohort of adjudicators who will be deciding first-instance refugee decisions. Most of those adjudicators will be new hires. Most will not have prior experience making refugee determinations, and they will likely not have legal training. In that context, competent professional representation for refugee claimants is extremely important in order for this transition to the new system to function properly.

For those three reasons, I believe that immigration consultants, although they have an important role to play in the immigration system, should not be involved in the refugee determination process because of the serious consequences at stake.

[The Chair, Conservative, David Tilson]

Thank you, Professor Rehaag.

Our second witness is from the Immigration and Refugee Board of Canada. Sylvia Cox-Duquette is the senior general counsel.

Ms. Cox-Duquette, thank you very much for coming. You have up to seven minutes.

[Sylvia Cox-Duquette, Senior General Counsel, Immigration and Refugee Board of Canada]

Thank you.

Good afternoon. Thank you, Chairman and members of the committee. As you said, I'm Sylvia Cox-Duquette and I'm the senior general counsel for the Immigration and Refugee Board of Canada. I want to thank you for your invitation to appear before you today.

I thought I would talk about the IRB's policy for handling complaints regarding unauthorized paid representatives--in other words, those persons who are targeted by this new bill.

This is the third time I've appeared before the committee, and of course following my opening remarks I'd be pleased to try to answer any questions you may have.

By way of background, and I think most of you here have heard this before, here are some background stats. The IRB is Canada's largest administrative tribunal. Our members make anywhere from 40,000 to 60,000 decisions annually, and our mission, as you know, is to resolve immigration refugee cases efficiently, fairly, and in accordance with the law. We fulfill our functions presently through three divisions: the immigration division; the immigration appeal division; and the refugee protection division.

I'd like to speak specifically about the proposed legislation, Bill C-35. As this committee knows, the IRB has no role in policy-making. This is the responsibility of Citizenship and Immigration Canada. But I did want to assure the committee that the IRB will of course implement any resulting legislation professionally and effectively that falls within its responsibilities.

I think it would be important to begin by explaining how we categorize counsel who represent individuals who appear before the IRB. You'll recall that on April 13, 2004, regulations were introduced that defined who may for a fee represent, advise, or consult with an individual who is the subject of any application or proceeding related to their immigration or refugee status.

Obviously, the current immigration and refugee protection regulations require that a person must be an authorized representative, someone who is a member in good standing of the bar in any province, or a member of the Chambre des notaires du Québec, or a member of the Canadian Society of Immigration Consultants, CSIC. But it's important to remember that under the current act—and this will continue under the new Cracking Down on Crooked Consultants Act--that hasn't been changed. Any individual can represent or advise a person with respect to their IRB proceedings pro bono, for free. If a fee is to be charged, then the person must be a member of either the applicable law society, Chambre des notaires or CSIC, or whatever body is designated to regulate non-lawyers and non-notaries.

Obviously, the legislation is designed to protect claimants, appellants, and persons concerned who typically may be vulnerable--for example, newcomers to Canada who may not have a support system, who may not know the language or understand the immigration and refugee system. We want to protect those persons from unscrupulous or incompetent people as advisors.

I won't go through the definitions further. I'll skip right to how we deal with and how we control our proceedings before the board in order to do the best we can to preserve the integrity of our proceedings, and to prevent unscrupulous or incompetent counsel from appearing before the board, be they lawyers or immigration consultants.

We have a policy. It's been in place since April 10, 2008, and is called the policy for the handling of IRB complaints regarding unauthorized paid representatives. This policy was introduced to address specific concerns regarding the charging of fees by counsel who had declared themselves to be unpaid. Under this policy, the chairperson of the IRB or his delegate may prohibit counsel from appearing before any division of the board, and it provides the board with a mechanism for ensuring that only those representatives who meet the criteria outlined in the regulations may appear before it.

This policy sets out, obviously, the IRB's approach to the treatment of complaints against unauthorized representatives who may be charging a fee for their services. While it's not the primary responsibility of the IRB to monitor compliance with the provisions of the regulations that govern counsel, we don't overlook contraventions of the regulations.

One of the things we do, which I can get into in greater detail later, to prevent unauthorized representatives who are charging a fee from appearing before the board is that when a claimant commences proceedings before the board, he's asked to say whether he will be represented and to say who he will be represented by. It's then determined whether the person he's chosen to represent him or her is either legal counsel, a member in good standing of the provincial law society or Chambre des notaires, or a member in good standing of CSIC.

If the person is proposing to have someone else represent them—in other words, an unauthorized representative—then both counsel and the claimant must sign a declaration indicating that the services of the counsel are being provided for free. It doesn't stop there, because of course someone can sign a declaration and we may get information or we may learn during the course of a hearing that we have some doubts as to whether the person is being paid, despite their declaration to the contrary. At that point, we will question the counsel and the complainant or we will look into any information received from another source on that to ensure that the person is not charging a fee.

If for some reason we're not satisfied with the explanations we are given, then at that point we go full blast into our policy. We do an investigation. If it turns out we determine the person is charging a fee for that service, then they will be prohibited from appearing before the board.

[The Chair, Conservative, David Tilson]

Ms. Cox-Duquette, perhaps you could wind up.

[Sylvia Cox-Duquette]

Yes, I will wind up.

Maybe I'll just wind up by saying this in conclusion. The IRB has a strong interest in measures that would assure competent representation and preserve the integrity of proceedings before the board. Therefore the board supports measures that would strengthen the regulation of counsel who appear for a fee in immigration and refugee matters.

Thanks.

[The Chair, Conservative, David Tilson]

Thank you both for your presentations.

We'll now go on seven-minute rounds from each caucus.

Mr. Oliphant.

[Rob Oliphant, Liberal, Don Valley West, ON]

Thank you, Mr. Chair.

Thank you both for appearing and giving very clear presentations. Professor, yours was one of the best-argued presentations I've heard from a witness at any committee, and that was very clear. You've shed some new light on something I wasn't thinking about.

My mind on this has been on the immigrant stream, as opposed to refugee determination stream, and then it will also come to Ms. Cox-Duquette's argument as well, because I'm worried about the vulnerability of the client. I worry more about that than I worry about the culpability of the perpetrator in this case, an unscrupulous representative. I'm always worried about that.

Your data on the lower success rate, as we determined success meaning a refugee determination that's positive, you acknowledge obviously it could be either. Unfounded claims are being brought forward by people who will take anybody because they get a fee, or it could be that they're more poorly represented.

Are there other factors going on that you've found in that study you've been doing?

[Dr. Sean Rehaag]

Yes. It's right to say there could be a variety of other factors. One of the factors that would be relevant is that people don't tend to go to immigration consultants if they were successful in obtaining legal aid, and in some provincial jurisdictions there is merit to screening to determine eligibility for legal aid. So that can have an impact.

I think one of the interesting findings in the data is not just the difference in the “success rates” in the refugee grant rates but the difference between the success rates and the expected success rates based on country of origin. Whereas lawyers do better than would be expected based just on the country of origin of claimants, immigration consultants do much worse than would be expected. So I think although there are other factors, they can be accounted for by looking at that part of the data.

[Rob Oliphant, Liberal, Don Valley West, ON]

Would you have any greater confidence in the role of consultants if they were regulated by law societies or the equivalent in jurisdictions in Canada, as opposed to by CSIC?

[Dr. Sean Rehaag]

I think law societies have a better track record with respect to monitoring professional competence and professional conduct. I think you can look at the way law societies have been successful in regulating paralegals in Ontario. So I think this would be one route that could be considered, but of course there are jurisdictional issues here.

[Rob Oliphant, Liberal, Don Valley West, ON]

It could be interesting if there were a stream of paralegals specializing in immigration and refugee law. Would that open up your sense that this could be a better system?

[Dr. Sean Rehaag]

It might be a better system, but I would go back to my point that immigration raises separate issues from the refugee determination process. So even if the policy were to head in that direction, I think the place to start would be with regulating immigration consultants with respect to the immigration system, and once a good track record had been established, only then opening that industry up to the refugee determination process.

[Rob Oliphant, Liberal, Don Valley West, ON]

Ms. Cox-Duquette, in your determination of perhaps stated pro bono representatives who actually are being paid, what protection do you offer to the whistleblowers who may actually come forward as a claimant, either in a refugee determination process or through the immigration procedures?

[Sylvia Cox-Duquette]

We don't have a whistleblower policy per se. Maybe we'd better backtrack, because I want to distinguish between what happens in the refugee protection division and other divisions. The reason I say that is because when things come to our attention in the refugee protection division, these are private, closed hearings. In sharing information that comes to light out of those proceedings, we have to navigate the Privacy Act in doing that. So that is the first hurdle.

Now, we either therefore have to get consent of the claimant to release the information that was relayed in the hearing or we have to fit it in to one of the exceptions under the Privacy Act to share it with CBSA or RCMP--and there are some. There's consistent use. The chairperson could make a determination that it's in the public interest and then must inform the Privacy Commissioner. There are a number of things that can be done, but we do proceed in that way and we generally turn over that information one way or another to the pertinent authority and leave it to them to deal with the rest. If it's a complaint about counsel in their appearance before the board--the conduct of counsel, their competence--then of course we'll deal directly with the regulatory body.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'll switch gears a little bit; I'm getting some good answers on that.

Vis-à-vis the pertinent authority, one of the concerns that has been raised is that the pertinent authority in the new legislation is the minister of CIC, who has a role in the system, as opposed to, say, the Minister of Justice, who could be the more pertinent authority to bring a concern to. Is there any conflict of interest that you perceive in this system?

[Sylvia Cox-Duquette]

I wouldn't feel comfortable commenting on that.

[Rob Oliphant, Liberal, Don Valley West, ON]

Professor?

[Dr. Sean Rehaag]

It's outside of my area of specialization, so I don't think I'd like to comment on that either.

[Rob Oliphant, Liberal, Don Valley West, ON]

I'm going to yield to my colleague.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Ms. Cox-Duquette, have you ever heard of a decision where PRA, the pre-removal risk assessment unit, has granted an application for protection of a family, and it's vacated by the minister's office? The minister decides to vacate a decision that the IRB, through PRA, has made. We heard about the serious consequences if we get things wrong in these particular circumstances. Have you ever heard of such a decision previously?

[Sylvia Cox-Duquette]

I should clarify that. Although things will change under the new Balanced Refugee Reform Act, the IRB is not responsible for PRA decisions.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. St-Cyr.

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

I would like to thank you for your presentations, in particular Mr. Rehaag, because you have brought us back to basics in a way by getting us to think about the very existence of immigration consultants. If I am not mistaken, you are telling us that we should not allow them to exist or be able to do this type of work, at least when it comes to refugee claimants.

But generally speaking, to your knowledge, are there other areas of law in which people other than lawyers are allowed to carry out such duties and provide legal advice? Personally, I do not know of any. It seems to me that, in order to provide legal advice, a person needs to be a lawyer. The only exception that I know of right now is immigration, where people who have no legal training and are not members of the bar can provide legal advice.

In your opinion, are there other examples of professions of this type where people provide legal advice?

[Dr. Sean Rehaag]

Thank you for the question.

You're right to say that immigration consultants are quite exceptional, in that you have this situation where non-lawyers are providing what amounts to legal advice. So it's exceptional.

There are a couple of areas where non-lawyers do get involved in legal issues, specifically, surrounding the activities of paralegals in some provinces. Paralegals can get involved in certain simple legal questions, including issues surrounding property law, for example, but as a general matter this is quite an exceptional situation to have non-lawyers providing legal advice.

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

If I understand your argument correctly, you are basically saying that, because the stakes are so high and the risk of error is so unacceptable where refugees are concerned, we should not allow consultants to deal with refugee questions.

On the other hand, since the stakes involved in immigration are less high, consultants could be allowed to practise in that area. Is that your general message?