Citizenship and Immigration Committee on April 10th, 2017

[The Chair, Liberal, Borys Wrzesnewskyj]

Good afternoon. Pursuant to Standing Order 108(2), and the motion adopted by the committee on October 4, 2016, and April 3, 2017, the committee will resume its study on immigration consultants.

In our first panel today, we have before us, by video conference, Mr. Richard Kurland, a lawyer and policy analyst who has appeared before the committee a number of times. Welcome back.

From the West Coast Domestic Workers' Association, we have the executive director and staff lawyer, Ms. Natalie Drolet. Welcome.

We'll begin with Mr. Kurland, for seven minutes, please.

[Richard Kurland, Lawyer and Policy Analyst, As an Individual]

Thank you, Mr. Chairman.

It's indeed an honour and a privilege to appear before the committee. I'd like to preface my remarks with a description of the decades of intervention on this particular issue.

The immigration consulting issue encompasses the protection of people desirous of becoming Canadians and desirous of visiting our country. I'll distill the issues plainly and simply. When it comes to the issue of immigration consultants, the key is who can fix this and how to motivate the institution to fix this.

I've read the submissions of other witnesses appearing before the committee. What seems clear to me is that there is only one single entity capable of handling the immigration consultant issues and that is the department, not the provincial level and not the regulatory authorities, provincial or federal. Only our public servants, working within the immigration department, can truly and practically get to the bottom of this. Why? It is only the department that has the capability of identifying who accesses our immigration operational system. It is the department that controls this access. The department has the tools and mechanisms to prevent contact with the departmental systems, and the department has the means to allow access.

The two obstacles preventing resolution of the immigration consultant issue for over 20 years are basic. The first level is unseen. Our governance in Canada, for social engineering purposes, in terms of multi-year, long-term strategy, emanates from the Privy Council Office. Within that office, there is a directive to prevent the judiciarization of Canadian society. We do not want a litigious society as it appears in our neighbour to the south. Consequently, when it comes to dealing with immigration consultants, there is a hidden unseen directive to prevent the legalization, the judiciarization, of the issue.

On the other hand, there is the desire to offload client contact from the department, where possible. What does this mean? This means that the department prefers to have a three-tier delivery system. Tier one includes members of Parliament and senators, preferred service; tier two has the regulated professions, lawyers and consultants; and tier three has unrepresented members of the public.

Here's where I'll conclude my opening remarks. The cheapest, easiest, most direct way to resolve this is to require third party representation on every application for service. In this manner, the applicants are driven to publicly regulated individuals: licensing, insurance, protection of the public. It allows the applicants to pay for service.

It should not be mandatory, but a preferred service system for represented applicants would go a long way to preventing abuse and would save the department money by using trained officials—lawyers and consultants who are regulated. It is going to be up to the department to make this decision. It can do it now. It has the artificial intelligence mechanisms in the incoming application processing system to do this.

To sum up, all you've been hearing to date have been different sides of the elephant, how it got into the room, and individual concerns and group concerns. At the heart of all this is the key, the central decision, on the part of our immigration public servants to allow access to third party representatives, and reward applications with third party representation with preferred service times, or more reliability in terms of the product that's entering the system.

I hear the self-interest bell ringing, but over 20 to 25 years I have not come up with a better solution, other than hiving off ever greater chunks of the operational delivery system onto the offices of our elected officials.

Those are my opening remarks. Thank you.

[Natalie Drolet, Executive Director, Staff Lawyer, West Coast Domestic Workers' Association]

Good afternoon, and thank you for the opportunity to appear before you today.

I'm here representing the West Coast Domestic Workers' Association, a non-profit organization that since 1986 has been dedicated to providing pro bono legal services to caregivers and other low-wage, temporary foreign workers. About 80% of our services are in immigration law.

Temporary foreign workers in the low-wage streams are a uniquely vulnerable category of newcomers. They face unique vulnerabilities due to certain aspects of the rules of the temporary foreign worker program itself. For example, in order to apply for a work permit, the program requires that they must secure a job offer, employment contract, and labour market impact assessment from a Canadian employer. This leaves temporary foreign workers with little choice but to hire third party employment agents in order to get connected with an employer in Canada.

These agents are more often than not working in a dual role as immigration consultants and employment agents. We see immigration consultants typically charging temporary foreign workers anywhere from $4,000 to $16,000 for low-wage jobs in Canada. Recently, an IRCC officer in Vancouver told me that he had a case of a temporary foreign worker who paid $40,000.

Temporary foreign workers are willing to pay these fees because they are counselled by immigration consultants that they would have a pathway to permanent residence in Canada, which is often not the case. This dual role presents a jurisdictional issue. As you know, immigration is federally regulated and employment is provincially regulated. In B.C., it is illegal to charge workers for jobs. Immigration consultants know this, so they recharacterize their employment services fees as immigration services.

I would like to share a couple of examples of this. Last year, our organization represented two caregivers. We won our case at the B.C. Court of Appeal involving a registered immigration consultant who was in a dual role as an employment agent. At the first instance, the director of employment standards found that the immigration consultant had charged illegal recruitment fees to these women, and the immigration consultant argued that she should be able to charge temporary foreign workers fees for jobs because the IRPA gave her the right to do so.

The second example involves a case of mass fraud by a registered immigration consultant in B.C. whereby temporary foreign workers were charged $8,000 for jobs that were no longer available when they arrived in Canada. Some of the workers were sent by the consultant to do unauthorized work, and were subsequently arrested and detained by the CBSA. A class action lawsuit has been filed against this immigration consultant, and the certification hearing took place last week in the B.C. Supreme Court in Vancouver. This consultant has also been under investigation by the CBSA for three years for various violations of the IRPA, including human trafficking.

This concern has been a concern of provinces. Saskatchewan, for instance, enacted the Foreign Worker Recruitment and Immigration Services Act to protect all foreign nationals from unethical practice and exploitation in recruitment and immigration processes. In doing so, the province found it necessary to regulate immigration consultants. The code of professional ethics of the ICCRC was adopted in the regulations, a violation of which could be considered a violation of the act and subject to its penalties. The Province of Saskatchewan thus recognized the need to end the self-regulatory regime and hold immigration consultants to account for their own code of ethics.

I am now going to turn to three recommendations. First, we need to end the self-regulatory regime of immigration consultants. The 2011 IRPA amendment was an attempt to cleanup the sector in response to this committee's report in 2009. It is clear that the remedy has not proven effective due to the lack of ICCRC's enforcement of its own ethical and professional standards. What is needed is a proactive, federal government regulation of immigration consultants. I would agree with Mr. Kurland on this point.

Second, applicants should not be penalized for the actions of consultants. Applicants should have the opportunity to correct errors and misrepresentations made by immigration consultants in their applications. They also need a guarantee that they won't be penalized if they come forward to file a complaint. Currently, people who come forward are the focus of scrutiny and are at risk of being detained and deported. The government should allow temporary foreign workers to regularize their status and remain in Canada while complaints are processed, whether through the department, regulatory body, the CBSA, or another enforcement agency.

There is a precedent for this in B.C. with the work permits for temporary foreign workers at-risk pilot project, which is quite new between the B.C. government and the IRCC, and which issues open work permits to temporary foreign workers who file complaints.

We need a paradigm shift to focus on building security and maximum protection for applicants. This will empower people to come forward, and will also serve as a disincentive to immigration consultants to continue exploiting vulnerable workers.

My third recommendation is really connected to the vulnerability of workers that is inherent in the temporary foreign worker program itself. These workers are rendered extremely vulnerable by virtue of the employer-specific work permits that they receive. If we want to reduce their vulnerability to the unscrupulous practices of immigration consultants, at a minimum, TFWs need open work permits. We see immigration consultants frequently counselling workers to engage in unauthorized work. At the same time, workers depend on their employers and agents for the ability to remain in Canada.

Employers frequently refer workers to specific consultants who then exploit them. The power imbalance between agents and employers and workers creates the conditions that enable this type of exploitation, and even human trafficking of temporary foreign workers, to occur.

In addition, granting permanent resident status on arrival would go a long way to fundamentally alleviating this vulnerability to exploitation. Part of the paradigm shift to focus on building security for TFWs should include moving away from temporary migration programs towards permanent status.

Should the government decide to continue the practice of issuing employer-specific work permits, then the government should mandate that provinces enact regulatory regimes with proactive enforcement—such as those in Saskatchewan, Manitoba, and other provinces—to protect temporary foreign workers in their recruitment.

Thank you.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Ms. Drolet.

Mr. Tabbara, you have seven minutes, please.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you, Mr. Chair.

Thank you also to the witnesses for coming here today.

Ms. Drolet, you mentioned applicants being penalized for coming forward, being vulnerable.

Mr. Kurland, you mentioned preventing abuse.

I want to refer a little to the Australian system with the Office of the Migration Agents Registration Authority, also known as MARA.

If you are choosing an immigration agent, one website offers some recommendations. I'm going to read them off to you:

All registered migration agents have a unique Migration Agents Registration Number (MARN).

You can check if a person is registered by searching for their MARN on the MARA website....

No person can guarantee you will get a visa—even if the person is a registered migration agent.

There are a lot of recommendations in the Australian system. I believe they have these to prevent a lot of the abuse and misinformation that is given by these agents to their clients.

You mentioned in your testimonies about the abuse and vulnerability. Could you elaborate on that, and do you agree with certain aspects of the Australian system?

I can start with you, Ms. Drolet.

[Natalie Drolet]

I haven't had the opportunity to look at the Australian model in much detail, unfortunately. However, I think the more information that can be made publicly available to applicants on the IRCC website would go a long way towards preventing abuse, especially if information can be made available in plain language, and in different languages as well, in order to make it more accessible.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Mr. Kurland.

[Richard Kurland]

I think the Australian model is good. The information resources parallel the Canadian information resources publicly available. That's good too, but that's not the issue.

Look at the Canadian example of work permits, labour market impact assessments for the operator-owners of businesses. About a year and a half to two years ago, that became the new mantra because it was a workaround towards a permanent resident visa, where you did not need language at the same levels and where you did not have to demonstrate source of funds. Essentially, you could bootstrap yourself to permanent residence.

Everyone in the policy end knew that this was an unsustainable category. The word went out that this particular category would be closed effectively by reducing the number of points from 200 to something lower in terms of express-entry, the mechanics.

Agents globally saw this as an open wallet. That's the issue. How do you motivate agents taking advantage of a gap in the fence that most reasonable people would realize would be closed? The same thing is about to happen with the British Columbia provincial nominee program's new entrepreneur rules. The cheap, easy fix is to have our department officials liaise with the regulatory authorities and use the ethical rules of conduct as a mechanism to administer the actions of members. That might be a realistic solution.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

We've heard other witnesses mention that the government should instead pass legislation to set up a government oversight body to regulate migration consultants.

Which way do you recommend to improve the current situation most efficiently?

[Richard Kurland]

My preferred solution is to borrow budget, considering that no new resources may be available. Borrow budget from the RCMP and CBSA, and allocate it to IRCC. That's where the heavy lifting occurs. It can be done proactively on screening intake, and it can certainly be done within IRCC. The witness alluded to the absence of a reward system for telling the truth and going after the bad guys. If you allocate resources towards enforcement and the illumination of problem areas, you can then liaise with the regulatory authority already in place and put out those campfires one by one. The whack-a-mole method works when it comes to immigration consultants.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Ms. Drolet, can you comment?

[Natalie Drolet]

I agree that the solution would be oversight by the federal government. This would help restore public confidence in the immigration system. I also like Mr. Kurland's idea about reallocating resources from the CBSA. If we're going to try to protect workers and incentivize them to come forward with complaints, resources dedicated to investigating those workers could be shifted to the department instead to regulate the wrongdoers, the immigration consultants.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Mr. Chair, how much time do I have?

[The Chair, Liberal, Borys Wrzesnewskyj]

You have one minute.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

I'll give that one minute to my colleague.

[Julie Dzerowicz, Liberal, Davenport, ON]

This question is for Ms. Drolet.

Do you work with ICCRC in any way? Do you file any complaints with them? Do you find them useful in any way? Are they helpful to you? If you had some recommendations on how to improve that, what would they be?

[Natalie Drolet]

Our office doesn't have the resources to help people to file those complaints. To file a complaint, there is a set of evidence that would need to be brought forward, as well as testimonies of complainants. However, we have been contacted by temporary foreign workers who have tried to file complaints and have not been referred to the disciplinary committee. What I gather from that process is that the process with ICCRC is not sufficient.

Law societies—

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you. Perhaps you can carry that thought over to some of the other questions.

Mr. Tilson, go ahead.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you, Mr. Chairman.

Mr. Kurland, it's always a pleasure to see you, even though I don't always agree with what you say. It's always generally good advice.

You indicated that you had read some of the testimony of previous witnesses. We had a young lawyer from the Canadian Bar Association here recently. His position was to get rid of all the consultants, which, quite frankly, I find rather self-serving for lawyers. I'm not so sure we should get rid of all the consultants. From the testimony that we've heard to date, the question is, are they properly educated? Are they charging too much? Are they giving proper advice? Are they competent? Those are some of the things we've talked about.

I'd like to hear your comments. I like your idea that perhaps these issues should go to the department, and I like your idea of allocating resources from other groups to deal with this. My view is that it is just as with lawyers—if someone doesn't like a lawyer's fee, there is a way to go after that lawyer. Lawyers are well educated, and paralegals are reasonably well educated, although I think lawyers don't like them either.

I'd like to hear some of your comments about whether we should continue with the process of having consultants.

[Richard Kurland]

It's one of these situations where reasonable people can reasonably disagree. I take a different path from the Canadian Bar Association's official position this time around, and there's no surprise there. I have been supporting the consultant issue in pre-embryonic times, and over a couple of decades I've found that there's high value in our former public servants' continuing their duties and responsibilities in their post-employment environment.

The policy vehicle that I highly recommend to this committee at the present time is borrowed from the Canada Revenue Agency: a voluntary disclosure program. This can be used within IRCC, CBSA, in file-specific matters where a person need not identify their name. Strike a deal, and if the facts are true then the person can be blessed with forgiveness, and the government gets the evidence it needs to shut down unscrupulous consultants and agents. The same voluntary disclosure program may apply within the regulatory authority. Right now there is no such creature.

The regulated should never fear their regulator. There should be a more collegial atmosphere.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Ms. Drolet, do you have any thoughts on this subject? Do we need consultants?

[Natalie Drolet]

Consultants can play a role in assisting in immigration services, but like Mr. Kurland, I think the issue here is effective regulation of those consultants, making sure we can guarantee that those consultants will be effectively regulated in order to protect the public. We need to fundamentally shift from the self-regulation regime to a government department regime for regulation.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Kurland, I have a question with respect to ghost consultants, or those people who perhaps are practising as consultants but are not licensed to do so. If the ICCRC were to have similar tools to those of the law societies of the different provinces, would they have enough tools to go after the consultants, just as a law society can go after someone who's practising law and is not a lawyer?

[Richard Kurland]

There are two quick answers to that. First, it's nice to have keys to the car; it's nice to have a car. Where's the gas? Who's going to fuel this enforcement action to a reasonable degree? Secondly, the car stops at the ocean, so for much of the nefarious activity, you end up with a flooded engine. You're not going anywhere.

[David Tilson, Conservative, Dufferin—Caledon, ON]

That's true, although we've heard testimony to the committee that licensed consultants hire a group of people who are not licensed to advise people to appear on matters. They're not licensed to do so. To me, those people are ghost consultants as well, even though the licensed consultant is responsible for what those people do. As far as I'm concerned, they're ghost consultants. Those people are in the country and are practising the work of a consultant even though they're not licensed.

Do you have any thoughts on that, Mr. Kurland?