Thank you.
My name is Avvy Go. I am the current director of the Metro Toronto Chinese and Southeast Asian Legal Clinic, a non-profit organization serving low-income members of the Chinese and Southeast Asian communities.
Thank you to the committee for giving me the opportunity to comment on the legal framework governing regulated consultants in Canada. I have provided a written submission, which focuses mostly on immigration consultants, partly because they are the most common targets of the complaints that we receive at our clinic. My written submission also highlights some examples of problematic practices, which I will not repeat here.
I just want to talk about the experiences we have working with immigrants, refugees, and people with a precarious immigration status. They are very easy targets for unscrupulous consultants because of their lack of language proficiency, lack of familiarity with the Canadian system, and lack of knowledge about the regulatory framework for legal professions in Canada, and because they are desperate. Many of them do not even know the difference between a lawyer and a consultant. Also, many don't even know where to find help when they need it, so they go to the sources they are most familiar with, including newspapers or websites in their first language, where a lot of the immigration consultants also advertise because they are targeting those ethno-racial communities in their marketing efforts.
While the Canadian government has long been concerned about the exploitation of vulnerable immigrants and refugees by unlicensed or even licensed immigration consultants, the measures taken to date have failed to stop the exploitation from taking place. Instead, the law as it now stands penalizes vulnerable individuals for making the mistake of hiring unethical or incompetent consultants, whether they are licensed or not.
I have highlighted some of those issues. One of them is because of section 10 of the regulations, which requires the applicant to identify that he or she has provided complete and accurate information, which includes the information about the consultant or legal representative. The burden is put on the individual applicant, then, to say that the information is accurate. But in a lot of the cases we have seen, because of their language barriers they won't even know what information has been included or whether or not the consultant has identified himself or herself in the application.
We also have clients who appear before the immigrant appeal division whose credibility has been attacked, because they had hired some consultant who didn't identify themself or they put in the wrong information in their form; and the clients are the ones who suffer.
Another way the system penalizes these applicants is because of the way “misrepresentation” is defined in the IRPA, including subsection 40(1) and section 127. These provisions have been applied and interpreted by the Federal Court in cases where the applicant has no direct knowledge that material facts have been misrepresented or withheld by their legal representative. Because the provision says that misrepresentation is either “directly or indirectly” done, the applicant is held responsible for the action of their representative.
We believe that the Government of Canada has the obligation to protect the public, and our focus is on that protection, although we also have commented on the regulation. We think the government should not penalize applicants who are duped, but should rather focus on how to strengthen the oversight system.
In our recommendations, we call, first of all, on the IRCC to continue to process applications that it suspects have been completed by ghost consultants and that it should advise the applicants of its suspicion, provide them with information on how to find licensed representatives, and give them the opportunity to review the information provided and to correct any errors that have been made.
Second, if the authorized representative is found to have made a misrepresentation on behalf of the applicant, the IRCC should give the applicant an opportunity to correct that information without prejudice.
Third, the IRCC should provide first-language materials to applicants who have already self-identified in their application as not being fluent in English or French, to ensure that they are fully aware of the rules governing legal representation.
Fourth, the government should pass legislation to set up a government oversight body to regulate immigration consultants. There should be specific provisions for admission, accreditation, a code of conduct, scope of practice, and mechanisms for complaints and discipline, and so on.
In the alternative, if the government allows self-regulation among consultants, it should still adopt legislation prescribing all of the same things it would have done otherwise.
As lawyers in Ontario—and other provinces too—we are governed by the Law Society Act that describes in great detail how the classes of licensees are established, admission and other requirements, and so on.
Finally, we think that the government should develop a comprehensive strategy to educate all potential applicants and refugee claimants about the regulations and requirements for consultants and other legal practitioners. One way of doing that is to include that information in the application process itself, and, of course, it must be available in the language spoken by the applicant.
Those are my submissions.