Citizenship and Immigration Committee on March 6th, 2017

[The Vice-Chair, Conservative, David Tilson]

Good afternoon. The chairman is occupied, so you're stuck with me for a while.

Pursuant to Standing Order 108(2) and the motion adopted by the committee on October 4, 2016, the committee will commence its study on immigration consultants.

We have a number of people present today. From the Department of Citizenship and Immigration, we have Mr. Orr, whom you all know; Michael MacDonald, director general, immigration program guidance; David Cashaback, director general, immigration branch; and Michael Brandt, director, grants and contributions financial management.

Our list is a bit out of order. The third speaker will be Paul Aterman, deputy chairperson of the immigration appeal division of the Immigration and Refugee Board of Canada, and the second speaker is Jennifer Lutfallah, director general, enforcement and intelligence programs, the Canada Border Services Agency.

Ms. Kwan has a notice of motion that she wishes to present before we commence.

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you very much, Mr. Chair. I'll take just a few minutes of the committee's time.

I'd like to give notice of motion on an important issue that's before us right now. A copy of the motion is being circulated to all committee members. It reads:

That, pursuant to Standing Order 108(2), that the Committee immediately undertake a study of land arrivals at Canada's southern border, including: the impact of current realities at the border on safety and security of both refugees and Canadian society; the effective management of refugee claims at the border, within the context of Canada's international human rights obligations; and how to ensure an efficient and effective refugee determination process. That this study should be comprised of no less than five meetings; that IRCC department officials be in attendance for at least one of the meetings and that CBSA officials be in attendance for at least one of the meetings; that the Committee report its findings to the House; and that Pursuant to Standing Order 109, the government table a comprehensive response thereto.

[The Vice-Chair, Conservative, David Tilson]

Thank you, Ms. Kwan.

Ms. Rempel.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I support this motion—

[The Vice-Chair, Conservative, David Tilson]

We're not debating this, Ms. Rempel. This is just a notice of motion. We're not voting on it and we're not discussing it today.

Mr. Orr, you could proceed.

[Robert Orr, Assistant Deputy Minister, Operations, Department of Citizenship and Immigration]

Thank you very much, Mr. Chair.

Mr. Chair, I'd like to begin by noting that over the last number of years, the department has made significant strides in laying the groundwork for a modernized client experience that simplifies the application process while maintaining the integrity of our immigration system. Our hope is that these continuing improvements will make it easier for people to access our services without the use of a consultant.

That said, we recognize that many prospective immigrants to Canada seek the services of immigration representatives or consultants, both in Canada and overseas, for help in navigating the immigration process. Similarly, prospective citizens may enlist the help of citizenship consultants before they seek the final step of applying to obtain their Canadian citizenship.

In June of 2011 the House of Commons passed legislation designed to better protect prospective immigrants from unscrupulous or fraudulent practices by such representatives. At the heart of that legislation were changes to the Immigration and Refugee Protection Act requiring that a paid immigration representative used at any stage of an immigration application or proceeding be a lawyer or a paralegal who is a member in good standing of a Canadian provincial or territorial law society.

In addition, an immigration representative can be a notary who is a member in good standing of the Chambre des notaires du Québec, or an immigration consultant who is a member in good standing of the Immigration Consultants of Canada Regulatory Council, the ICCRC.

There are also provisions in the law for the government to enter into agreements with certain organizations who provide valuable services to immigrants and applicants for citizenship.

In effect, the 2011 legislation made it illegal for anyone other than those I've just listed to operate as a paid representative at any stage of an immigration or citizenship application or proceeding. At the same time as these amendments came into force, the government of the day also designated the Immigration Consultants of Canada Regulatory Council, or ICCRC, as the regulator of immigration consultants. In June of 2015, similar amendments were made to the Citizenship Act in regard to the laws governing citizenship consultants, and the minister at the time designated the ICCRC as the regulator for such consultants.

The ICCRC is a self-governing, not-for-profit organization that has an arm's-length relationship with Immigration, Refugees and Citizenship Canada. There are currently more than 3,700 active members of the ICCRC. The organization manages members' entry-to-practice standards, including training, testing, and accreditation, as well as professional requirements such as education obligations. The ICCRC is also responsible for ensuring that an effective complaints and discipline process for members is enforced.

Immigration, Refugees and Citizenship Canada is always prepared to take aggressive action against unscrupulous and fraudulent activities by immigration and citizenship consultants when we become aware of or suspect improper activities. These damaging activities can include acting as a so-called ghost consultant; that is, providing, or even offering to provide, advice or representation for a fee at any stage of an immigration application or proceeding without being a member in good standing of the ICCRC.

When Government of Canada officials believe that an immigration or citizenship consultant has contravened any professional obligations, they have clear authority to share this information with the ICCRC, in a manner consistent with the Privacy Act.

Examples of information that can be shared are allegations or evidence of false promises made to an applicant, providing false information about Canada's immigration processes, failing to provide services agreed to between the representative and client, or counselling to obtain or submit false evidence.

The ICCRC has a mandate to govern such consultants by employing tools such as their code of professional ethics and code of business conduct and ethics. It also has the authority to investigate allegations of unethical or unprofessional behaviour on the part of authorized consultants. The RCMP and the CBSA are responsible for investigating both authorized consultants who engage in fraud and ghost consultants who operate outside of the law governing immigration representatives.

The ICCRC and the Canadian Association of Professional Immigration Consultants have approached our department and the CBSA about making changes to governance frameworks for the regulator of citizenship and immigration consultants. According to documents we've seen, they're interested in having the council operate similarly to law societies, with increased powers of investigation and the ability to discipline members.

To give the council these authorities would require significant legislative changes and could also impact the mandate of our security partners who are currently responsible for investigating ghost consultants and authorized consultants who engage in fraud.

Immigration, Refugees and Citizenship Canada remains committed to continuing to meet regularly with representatives of the ICCRC to discuss governance issues and the council's overall effectiveness.

Thank you, Mr. Chair.

[The Vice-Chair, Conservative, David Tilson]

Thank you, Mr. Orr.

Ms. Lutfallah.

[Jennifer Lutfallah, Director General, Enforcement and Intelligence Programs, Canada Border Services Agency]

Thank you, Mr. Chair.

As the committee is aware, the administration and enforcement of the Immigration, Refugee and Protection Act (IRPA) falls under the responsibility of several government departments and agencies.

While the IRCC has the lion's share of the policy responsibility under IRPA, the CBSA's role is largely one of enforcement and intelligence and criminal investigation.

Since 2000, the CBSA and the RCMP have worked to develop a complementary approach in relation to immigration penal offences. The RCMP is responsible for immigration offences dealing with organized crime, human trafficking, and national security. The CBSA has the lead responsibility for the remaining immigration offences. These include offences related to fraudulent documents, misrepresentation, counselling misrepresentation, and the general offence section under IRPA.

The general offence section under IRPA applies to individuals who do not comply with various conditions or obligations under the act. That includes examples such as persons who hire foreign nationals without authorization, previously deported individuals who return to Canada without authorization, or persons who fail to report to CBSA officers upon entry into our country.

Depending on the nature of the consultants' activities, various criminal offences and sanctions exist under IRPA and the Criminal Code. These would generally be investigated by the CBSA and/or the RCMP. By contrast, review of an activity that is unethical or unprofessional but does not constitute an offence falls under the responsibility of the Immigration Consultants of Canada Regulatory Council.

With respect to IRPA offences most frequently related to consultants, the act provides for criminal sanctions to be pursued in relation to the following: being an unauthorized consultant, counselling misrepresentation, misrepresentation, and counselling to commit an offence.

For example, where it can be proven in court that a consultant has counselled a client to provide false information with the objective of increasing the chances of their immigration application being approved, that consultant could be charged with counselling misrepresentation.

The counselling of misrepresentation could be in relation to any immigration application, be it a temporary resident permit application, a permanent resident application, a spousal sponsorship, or a refugee claim. This charge could apply to consultants whether or not they are authorized to act as a representative pursuant to the regulations.

The IRPA offence of being an unauthorized consultant applies when a consultant is not registered with the ICCRC and provides advice to a client for a fee. The penalty upon conviction by way of indictment ranges from a fine of not more than $100,000 to imprisonment for a term of not more than two years, or both. On summary conviction, the penalty ranges from a fine of not more than $20,000 to imprisonment for a term of not more than six months, or both.

Prior to the passage of Bill C-35 in March 2011, regulations respecting authorized representatives applied only after an immigration application was submitted.

This was problematic from an enforcement perspective, as much of the counselling often occurred prior to submission of the application. Activities of this nature were not regulated, and unauthorized consultants, sometimes referred to as “ghost consultants”,

were operating in the pre-application phase but could not be pursued through the courts. Now, the legislated rules respecting authorized representatives apply before and after an immigration application has been submitted. Unauthorized representatives found to be knowingly representing or providing advice, directly or indirectly, to a person prior to the application phase, during, and/or afterward can be charged under subsection 91(9) of IRPA, as well as persons “offering to” represent or provide such advice.

The legislative amendments brought about by Bill C-35 now limit those providing, or offering to provide, consulting services for a fee in the pre-application phase to persons who are lawyers, notaries in Quebec, and paralegals and consultants who are in good standing by a governing body. These provisions provide an additional tool for the CBSA and its partners to use in pursuing enforcement action against those individuals who would misrepresent themselves.

Obtaining evidence of consultant fraud can be challenging. Often the applicants are hesitant to report the counselling offences to the CBSA, as they were either a party themselves to the misrepresentation or convinced that even though the representative was not authorized, the individual could assist in ensuring that their client received a positive outcome on their application.

As a result, most offences are brought to the CBSA's attention only after the immigration application has been rejected. Even then, applicants in Canada may not come forward out of fear that they will be removed from our country.

In addition, contracts between clients and unscrupulous consultants are often made verbally, and payment is given in cash, leaving—

[The Vice-Chair, Conservative, David Tilson]

Perhaps you could wind up, please. You're running out of time, I'm afraid.

[Jennifer Lutfallah]

I'm sorry.

One important point I would like to get out is that Bill C-35 increased the statute of limitations to 10 years for the offences of counselling misrepresentation and misrepresentation, and five years for the offence of being an unauthorized consultant. Investigators now have sufficient time to properly and fully investigate IRPA offences and refer the file to the Public Prosecution Service of Canada.

I will end it there.

[The Vice-Chair, Conservative, David Tilson]

Yes. We do have your written notes. Thank you.

Mr. Aterman from the Immigration and Refugee Board, please go ahead.

[Paul Aterman, Deputy Chairperson, Immigration Appeal Division, Immigration and Refugee Board of Canada]

Thank you.

The Immigration and Refugee Board reports to Parliament through the Minister of Immigration, Refugees and Citizenship. Through the work of its four divisions—the refugee protection division, the refugee appeal division, the immigration division, and the immigration appeal division—the board renders about 40,000 quasi-judicial decisions per year.

The people who are the subject of those decisions are among the most vulnerable consumers of legal services in Canada. Some of them may have been in Canada only a few weeks or months. Many are unfamiliar with our legal system. Many do not speak English or French. Access to justice—that is, being able to retain competent counsel at an affordable cost—is a concern for courts and tribunals across this country, and it's a concern that applies equally to the IRB.

We do design our processes in such a way that self-represented people can navigate them, but the fact is that many of the issues we deal with are complex and technical, because the law itself is complex and technical. About one in five cases before the board involves someone who is not represented by counsel. We would much rather deal with people who have competent counsel than deal with people who are unrepresented. We are able to do our job much more efficiently in those circumstances.

To give you a sense of the numbers, of the 40,000 cases in 2016, about 8,000, or around 20%, involved people who were not represented. Around 31,500, or 80%, had counsel. Of those 31,500, about 12% were represented by immigration consultants. Last year we saw around 3,800 immigration consultants.

Integrity and competence are crucial to consultants' capacity to make a positive contribution to the immigration and protection of refugees system. From the perspective of the IRB, the provisions on consultants adopted in 2004 marked an important step forward for access to justice, as they allowed for the setting of minimal standards, and brought in complaint and discipline mechanisms that did not exist prior to that.

However, there is always room for improvement. The changes made in 2011 strengthened the system. Currently the representatives targeted by the regulation must prove to the IRB that they are members in good standing of their professional association before they can appear before the board. We check to see if they are suspended or subject to disciplinary procedures.

I think it is important for the committee to be aware of the fact that the work done by immigration consultants before the IRB is quite different from the work done by consultants when they appear or represent clients before IRCC.

With IRCC, consultants are guiding their clients through an application process. In contrast, at the board, consultants represent their clients in hearings. The IRB is the main forum in which consultants can litigate, and litigating requires very particular skills. Counsel in a hearing needs to know the difference between evidence and argument. Counsel needs to know what the right legal test is, what the best litigation strategy is, how to examine or cross-examine a witness. They have to be able to think on their feet. They have to be persuasive.

The board supports the regulators' efforts to improve standards of practice, and we also support the regulators' efforts to investigate and act on alleged breaches of professional conduct. To that end, in July 2015 we revised our disclosure policy to take advantage of the legislative changes that now make it easier to disclose this kind of information to regulators.

The board now has a transparent process for reporting issues of concern to regulators. The policy applies not just to consultants but to lawyers as well. However, we refer cases to a regulator only when we think there has been a sufficiently serious breach of a code of conduct or ethics.

Since 2015, we've made a relatively small number of referrals, 10 to the immigration consultant regulator and two involving members of the bar. However, that should not be taken as an indication that there is not room for improvement—far from it. In the view of the board, there is considerable scope for the quality of litigation conducted by immigration consultants to improve. This is why we also support education and prevention whether by the regulator itself or through our own efforts. For example, the board holds sessions for immigration consultants that are aimed at improving their standard of practice, and if we receive invitations from professional organizations of immigration consultants to offer training, we gladly accept those invitations.

We hope to build on the relationship we have with the regulator and with groups such as the Canadian Association of Professional Immigration Consultants, because we're aiming to improve the standard of litigation practice conducted by immigration consultants.

Thank you.

[The Vice-Chair, Conservative, David Tilson]

Thank you very much, sir.

Ms. Zahid, go ahead for seven minutes.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Thank you, Chair.

Thanks to all the witnesses. Thanks for your views on this.

My first question is for CBSA. Luc Portelance, former head of the CBSA, wrote a memo to former public safety minister Steven Blaney in 2014, in which he said, “Immigration applicants are 'often hesitant' to report consultants, as they were either complicit in the misrepresentations or they remain convinced that their consultant can help them gain status in Canada.”

Is this still the case, and has anything been done to address this since the concern was raised to the then minister about three years ago?

[Jennifer Lutfallah]

I'm not aware of the memo you're referring to. However, on a general level, we find the concern is still the same. Individuals are very hesitant to come forward and provide evidence to us. Generally when they do come forward, it's when their immigration application has failed.

We have tried to discuss this with people when we look for witnesses with respect to a criminal investigation. They are generally very hesitant. They are afraid. They view any questioning by CBSA as a possibility of their being deported from the country and they generally refuse to provide any evidence, so it remains a concern.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Mr. Orr, if this is still a concern, is there anything we can do, from IRCC's perspective, to provide more awareness to the clients who are using the consultants?

[Robert Orr]

This is something we're very concerned with, and we try to provide significant information to clients through the websites and other means to ensure that people are aware of the importance of choosing a representative who is authorized to act on their behalf.

In addition to this, we also do a number of fraud awareness campaigns. Those are undertaken on a regular basis. We try to alert people to the issue of fraud and to raise awareness in that manner.

[Salma Zahid, Liberal, Scarborough Centre, ON]

Former immigration minister John McCallum told the CBC in April 2016 that he had ordered a three-part investigation into the practice of immigration consultants charging Syrian refugees to process applications and asking them to pay resettlement costs that should be paid by private sponsors.

Could you update us on the outcome or the status of that investigation?

[Michael MacDonald, Director General, Immigration Program Guidance, Department of Citizenship and Immigration]

With regard to that activity, the investigation is ongoing right now, and we are putting appropriate resources into it. The only update I have to give is that it's ongoing and very active.

[Salma Zahid, Liberal, Scarborough Centre, ON]

There still are no findings or anything on that.

[Michael MacDonald]

Correct. It's still ongoing and there is no finding at this stage.

[Salma Zahid, Liberal, Scarborough Centre, ON]

When do you think we would have some answer to it?

[Michael MacDonald]

When you get into investigations of all natures, it's very difficult to determine where and how long the investigation will be because you don't know what you will uncover as you go through the actual process.

[Salma Zahid, Liberal, Scarborough Centre, ON]

My next question is also for the IRCC.

We heard some disturbing reports of Syrian refugees falling prey to resettlement scams on social media. Some registered immigration consultants have advertised their services to play matchmaker between potential refugees and private sponsorship groups. In November 2015, an article in the Toronto Star said that the IRCC would not comment on the legality of such matchmaker services, but I would like to try again. Is this legal, and if so, does there need to be more regulation and monitoring there?

[Robert Orr]

If there are going to be things that are not within the purview of what a consultant or a lawyer should be doing, there is certainly a very real concern. Yes, we would take that very seriously indeed. I'm not familiar with that particular aspect, although we are aware of certain abuses within the refugee sponsorship process, and we have been very actively following up on those.