Citizenship and Immigration Committee on May 8th, 2017

[The Chair, Liberal, Borys Wrzesnewskyj]

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

We had Mr. David Arnold from the Australian High Commission scheduled, but I understand that an hour ago we unfortunately received a message that he had to stay on post. There will be a written submission. If there are any questions that have been prepared for this witness, please submit them. They'll be passed on to Mr. Arnold and responded to.

Before us today are Mr. Raj Sharma, managing partner, Stewart Sharma Harsanyi; and Mr. Lorne Waldman, barrister and solicitor, Lorne Waldman and Associates. Welcome, gentlemen.

Mr. Sharma, the floor is yours, for seven minutes.

[Raj Sharma, Managing Partner, Stewart Sharma Harsanyi, As an Individual]

Thank you, sir.

First of all, I'd like to say that it's an absolute honour and privilege to appear and participate in your study of the legal, regulatory, and disciplinary frameworks governing and overseeing immigration consultants in Canada.

By way of background, I am an immigration lawyer in Calgary. Before I went into private practice, I was a refugee protection officer with the refugee protection division at the Immigration and Refugee Board. That is Canada's largest administrative tribunal. As a former immigration hearings officer, now as an immigration lawyer, I've done hundreds of hearings, probably fewer than Mr. Waldman but still quite a few. My partner and I and our associates appear regularly before the Federal Court of Canada, which requires a review of the record below.

Over the years I've also had the opportunity to host a Punjabi language radio show in Calgary, and for obvious reasons, immigration is a matter that is very near and dear to my community. I've seen lawyers and immigration consultants at all three divisions of the IRB. I've seen their work, transcripts of their hearings, and their applications. I've seen first-hand the consequences of bad advice.

There are good lawyers and bad. There are bad consultants and good ones. In my opinion, very few consultants are competent enough to represent and advocate for clients at the IRB. I've had the opportunity to review the briefs of the Canadian Bar Association and the Metro Toronto Chinese and Southeast Asian Legal Clinic. I share many of those concerns.

I disagree, however, with the CBA call to restrict representation for fees only to lawyers who are members of good standing of a provincial law society. There are two important concepts at play: access to justice and protection of the public.

I've had the opportunity to work with immigration consultants who have prior experience in immigration, including former immigration officers or CBSA officers, former lawyers, and others who know their limits. They do provide a valuable service. I don't think that lawyers automatically have a monopoly over all aspects of immigration law. The fact of the matter, however, is that ICCRC seems to favour promoting the easy entrance of consultants to the practice of immigration law over the protection of the public.

Right now, after getting admission to and passing a 320-hour online course—and this is what Ashton College's website says—the program gives students the opportunity to become part of this exciting field, without forcing them to be on campus. There are no courses on legal research, evidence, or administrative law principles. Once you complete this completely online course, you need to pass the ICCRC exams. By the way, even if you fail the skill exam, you still get three more kicks at the can. Anyone over 18 with a language proficiency test who passes this skills exam, on day one, can represent a refugee before the RPD.

To represent a refugee means knowing the substantive law in this area, terms like “state protection”, “internal flight alternative”, or exclusion clauses such as crimes against humanity, war crimes, or serious international non-political crimes. That same person can also, on day one, appear before the immigration division to represent a permanent resident being charged with a serious crime outside Canada. That requires an equivalency of a foreign charge with a Canadian criminal law. A loss at that division could result in the loss of status and removal without further appeal. That same person can represent a permanent resident at the immigration appeal division with a criminal conviction in Canada, or a permanent resident facing an allegation of misrepresentation, or a Canadian sponsor appealing against refusal by a visa officer to a family member overseas. There is no way that a six-month online course can give you grounding in the substantive law needed to be an effective advocate.

Look, we don't allow 16-year-olds to drive 18-wheelers. There needs to be a graduated licensing for consultants. Just because you can fill out a work permit doesn't mean you can appear, represent, and advocate for a refugee, a permanent resident facing criminal charges abroad, a permanent resident with a conviction inside Canada, or a Canadian looking to appeal against a refused visa to a family member.

We're relying on immigration consultants, individuals, to self-police, to restrict themselves when it is in their financial pecuniary interests to take on work, even work that they are not competent to do. They've paid thousands of dollars for the education, the skills exam, registration, insurance, marketing and advertising, and more. Obviously, they'll want a return on that investment.

My recommendation is to split the baby. In the United Kingdom, the legal profession is split between solicitors and barristers. Solicitors do transactional types of legal work. This is probably what 320 hours of an online course will allow for—a consultant to provide advice on and assist in completing immigration applications. Barristers represent clients as an advocate before a court or a tribunal. This requires training in evidence, ethics, court practice and procedure, and legal research. There's no way that 320 hours of an online course, and maybe a mock interview module, will allow for a consultant to practise competently before the IRB.

There should be a different process to license certain immigration practitioners or advocates to appear before the IRB. These individuals should either possess direct prior substantial experience, and/or prospective immigration advocates should be required to complete substantial legal courses, and undergo articles or train under the supervision of a lawyer, or a consultant who has the requisite experience.

Frankly, I think regulation has failed because the ICCRC sets up consultants to fail. They are knowingly or ignorantly—take your pick—arming their members with a knife and allowing them to go into a gunfight. Ultimately, it is the refugee claimant, the spouse separated from her partner for years, the permanent resident facing removal and loss of status from a country that he has called home for decades, who will pay the price.

Thank you for your time. I look forward to answering any questions you may have.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Sharma.

Mr. Waldman, the floor is yours for seven minutes, please.

[Lorne Waldman, Barrister and Solicitor, Lorne Waldman and Associates, As an Individual]

Thank you.

I just want to say that I hadn't discussed this with Mr. Sharma, but you'll be surprised to hear that our positions are very similar. I'm going to build on what Mr. Sharma just told you as I agree completely with him.

The problem with the immigrant consultant situation is that there's a perception that the regulatory body, the ICCRC, has not done enough to properly protect the public. There are still many instances of abuse, and there are many examples of incompetent representatives. That applies to processing, but much more so to the examples Mr. Sharma gave of people who appear before the board.

It's important to note, as Mr. Sharma did, that it's not only a problem with consultants. There are incompetent lawyers. There were three lawyers in Ontario who have been recently disciplined due to incompetent representation of hundreds of Roma refugee claimants. I was an expert witness on two of the three cases, so I'm well aware of the problem and the scope of the incompetence. Two of the lawyers received six-month suspensions and one was disbarred. This to say that the problem of incompetence is not one that's restricted to consultants.

Having said that, I agree with Mr. Sharma. A lawyer, before he is licensed, has to get an undergraduate degree, three years of law school, 10 months to one year of articling, and then pass a professional competence exam. It's far different from the 320 hours that you need to do before you can apply to write the consultant's exam.

I agree again with Mr. Sharma. The CBA recommends doing away with consultants. I have a broader perspective than Mr. Sharma, having been practising for close to 40 years. Before consultants were regulated, they existed, and if you tried to stop regulating, they will continue to exist. I think, given the choice between regulating and not, we're far better off regulating, but we have to regulate better.

How do we regulate better? In order to improve the regulations—and, again, I'm picking up on what Mr. Sharma said—the government must do more. The government has the power, in the regulations, to set proper minimum standards in place to ensure that anyone who is licensed as a consultant meets minimum standards of education.

I'm not going to tell you today what I think those would be, but I agree that they have to be far more than the 320 hours, especially if people are going to represent people at the Immigration and Refugee Board. Minimum standards of study have to be in place, followed by a period of practicum. A lawyer, before he or she can practise as a lawyer, has to do a period of articling. Consultants pass the exam, and the next day they can hang out their shingle. This is completely unacceptable.

How do we achieve this? We achieve this by enacting regulations. The immigration act, section 91, allows the government to promulgate regulations in relation to the ICCRC. I looked at the wording, and I'm not sure if in its current form the regulatory power is sufficient to allow it to put in place the type of regulation that I'm suggesting. We have to look at that more carefully. However, what I'm suggesting to you is that the government put into the regulations minimum standards of education, the minimum requirements, that a consultant spend a certain minimum period of practicum before he or she can be licensed.

We require this because, I agree with Mr. Sharma, the ICCRC has not put in place sufficient requirements to ensure that consultants are competent.

I also agree with Mr. Sharma that there's a fundamental difference between a consultant who does processing and a consultant who appears before the Immigration and Refugee Board. There should be different requirements of competence. There should be additional training required before a person represents someone before one of the tribunals of the Immigration and Refugee Board. All of this can be done by putting in place minimum requirements into legislation that any consultant would have to meet in order to become a member of the ICCRC.

In this way the government would ensure that any consultant is qualified. It wouldn't dependent on the ICCRC alone to set the minimum qualifications, because—I agree with Mr. Sharma—the qualifications that are now set requiring an online course of 320 hours is not enough to protect the public.

Finally, I think the regulations should allow the government to also conduct audits, in addition to the enforcement powers of the ICCRC. The government should not be dependent on the ICCRC to deal with situations of abuse when CBSA or CIC becomes aware of a consultant who is doing illegal activities. It should be free to conduct audits and enforce the regulations to ensure proper representation.

Thank you.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Waldman.

The first round of questions goes to Mr. Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair.

Thank you both for joining us and sharing your perspectives.

I think one of the major challenges we are facing, apart from the regulated consultants, is the issue of ghost consultants and those who are effectively operating under the radar. I know that in Ontario, for example, the law society regulates those who are providing legal services, and if they're not licensed to do so, there are provisions for the law society to enforce against those people, as there are in the medical profession, as well as in dental practice.

What can we do to address the issue of those who are not licensed and who will probably never be licensed? What kind of enforcement mechanism should we use and what is the right authority? Is it the CBSA, or is the RCMP the right organization to do the enforcement, whether it's in Canada or outside?

I'll start with you, Lorne.

[Lorne Waldman]

The Immigration and Refugee Protection Act prohibits anyone who isn't licensed from providing paid legal services in the immigration context. The law already has in place provisions that would ensure that people who are acting as ghost consultants could be brought to prosecution, so it's really a question of enforcement.

The enforcement can be done. The ICCRC has no power to enforce, so it has to be done either by the RCMP or by the CBSA. I believe the CBSA now has a unit that engages in prosecutions. My experience is that the types of issues that arise for those consultants, unless they are on a massive scale, are not the type that would generally be of interest to the RCMP.

If we're going to try to have more effective enforcement regarding ghost consultants, it's going to have to be done by the CBSA and I think the government is going to have to dedicate funds to that specific problem to ensure that sufficient attention is paid to prosecute those who act as ghost consultants.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you.

[The Chair, Liberal, Borys Wrzesnewskyj]

Mr. Sharma, go ahead very briefly.

[Raj Sharma]

I think we'll never get rid of ghost consultants and there's a myriad of reasons why. First of all—and I'll try to translate this from Punjabi—ghost consultants suck the blood of their own. They victimize their own communities, whether the Chinese, Vietnamese, or Indian.

There are barriers for those individuals who might be vulnerable, aged, lacking in education, or having other impediments, and they're not going to come forward. Because they're not going to come forward, we're just not going to have prosecution even if we have sufficient resources for prosecution, which we don't. We, apparently, don't even have sufficient resources to combat marriage fraud.

We're not going to get rid of ghost consultants, and I would suggest—and I'll refer to the Metro Toronto Chinese and Southeast Asian Legal Clinic's brief on this matter as well as my experience on the radio—that we really need to reach out to the ethnic communities via their media, radio, etc., and talk about this pernicious problem of ghost consultants.

Prevention has to be the best sort of cure. I don't think after-the-fact exercises and prosecution of someone who's obviously a crook or a criminal is going to deter it.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

With respect to going forward, Mr. Sharma, you talked about graduated licensing. I know Mr. Waldman spoke about competencies and how what's required to do paperwork and fill out a sponsorship form may be different from what is required to do a PRAA or an H and C.

What are those boundaries, and where can we look for guidance regarding what is an appropriate division of work among consultants, paralegals, and counsel?

We'll start with you.

[Raj Sharma]

Thank you.

The line in the sand that's most readily discernible to me is that sort of U.K. split profession of solicitor transactional work versus the barrister representation and advocacy. That's a fairly clear line, I think. Let's start there.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Based on what Mr. Waldman is saying, they are also lawyers who may be able to practise law but who may not have the competencies. How do you reconcile that? You're basically adding a third layer with consultants, whereas in the U.K. model both barristers and solicitors are members of the bar.

[Raj Sharma]

No, I'm not adding another level. I'm saying that consultants, as of right now, do not have the core competencies to practise or advocate at the IRB. What I would say is that the consultants should have a split profession.

I believe that we've had a unified tradition, with the barristers and solicitors, in the common law provinces of Canada anyway. That seems to be working fine, so I'm not proposing any change to the existing regulations or framework for lawyers.

[Lorne Waldman]

I think the way to approach this would be to ensure that in order to be a processing consultant you would need to meet certain minimal requirements in your studies. If you want, in addition to that, to be a consultant who appears before a tribunal, you would have to meet other standards. You would have to take courses in evidence. You would have to take a course in the charter. You would have to take a course in the legal ethics of appearing before tribunals. When I looked at the Ashton College curriculum, many of these things weren't there.

I would agree that a consultant who just graduates is not qualified. I think there would have to be a practicum. If a consultant wants to practise before the Immigration and Refugee Board of Canada, he should declare that. Then he should be required to have a practicum with either a lawyer or another consultant licensed to appear before the board, so as to ensure that when he goes before the board he's familiar with the process and the proceedings.

[The Chair, Liberal, Borys Wrzesnewskyj]

Thank you, Mr. Waldman.

Mr. Tilson.

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

Lawyers don't like consultants, and they don't like paralegals. I can, quite frankly, understand why. I think we need paralegals and I think we need consultants. All of the issues you're raising are good ones.

Paralegals, as I understand it, can only do certain things. They're restricted from doing all sorts of things. The committee is looking for recommendations from witnesses such as you so that we, in turn, can recommend changes to the government. In respect of consultants, you mentioned education. Are there certain things that, perhaps, they just don't have the training for, may never have the training for, and should be restricted from doing?

Mr. Sharma, perhaps we could start with you. Could you recommend to the committee what consultants should not do?

[Raj Sharma]

Let's say we get the 320 hours. I'm very mindful that lawyers may be perceived as being against immigration consultants. I don't want this to come across as self-serving in any way. I think access to justice is important. I think consultants provide a valuable service.

I agree with you that even paralegals are restricted. Paralegals, by the way, need two years of education, far more than 320 online hours.

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

I'm not talking so much about their education. I'm looking at what.... Paralegals, clearly, are restricted from doing certain things. I'm asking both of you what your recommendations are as to what they should not do. They will never have the qualifications lawyers have to do those things.

[Raj Sharma]

Based on the current regulatory framework, I do not believe that a consultant has the core competencies to represent any individual before any tribunal of the Immigration and Refugee Board of Canada. I do not believe they should be doing detention reviews at the immigration division, or determinations that someone is a member of a terrorist organization at the immigration division. I don't believe they should be representing refugee claimants at the refugee protection division.

I don't believe they should be doing appellate-level written advocacy at the refugee appeal division, and I don't believe they should be appearing before the immigration appeal division. That is a court of competent jurisdiction, and it is very much if not identical to a court.

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

That's an excellent answer.

Should the government pass legislation or recommend legislation to do what you have just said?

[Raj Sharma]

I believe that section 91 can be amended to the extent that it can allow immigration consultants, based on current framework, to do transactional level work within immigration: work permits, other applications for permanent residents, sponsorship applications, and that's it.

What I would propose then is another provision that will allow a different class of immigration consultants to appear before the IRB, and I want to be clear on this. The IRB actually is maître chez lui. It can control its own procedures. In fact, some tribunals have banned some consultants from appearing before them because we're not doing our job, the government is not doing its job to protect the public, and ICCRC is not doing its job, so the tribunal sometimes has to say they're not going to hear from this person anymore.

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

That's another story.

Mr. Waldman, do you agree with what Mr. Sharma has just recommended?

[Lorne Waldman]

Yes, if I understood it correctly. I think that there should be two levels of consultants, ones who are authorized to do processing, and they would need a lower level of education and a lower level of licensing, and then I think the legislation should authorize consultants to appear before the board, but only if they have a higher level of qualification. The way the situation is now, any consultant with a minimal education can appear anywhere, and that's unsatisfactory.

There are some very good consultants who appear at the Immigration and Refugee Board who do work that is as good as many of the lawyers I see, and I would be loath to say that they shouldn't be allowed to do that, but I believe that the educational requirements that are now in place are not sufficient.

I think the focus of any legislative regulatory change should be ensuring that the educational requirements.... This is the point I was trying to make. The government has the power to impose on ICCRC minimal requirements so that a person who appears before the Immigration and Refugee Board has the minimal knowledge necessary to competently represent someone. The ICCRC is not doing that, but it has the power to do that. The government can insist that they do that.

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

Mr. Waldman, one of the complaints we have from witnesses who have come before us was that consultants charge thousands and thousands of dollars to essentially fill out forms—$20,000, $30,000, and up—which just absolutely shocks us. Lawyers, of course, can have their accounts assessed.

Perhaps you can familiarize us as to what can be done, or what is being done, or what should be done with these outrageous fees that some consultants are charging.