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EXTRA Vol. 138, No. 4Canada Gazette Part II OTTAWA, WEDNESDAY, APRIL 14, 2004 Registration SOR/2004-59 30 March, 2004IMMIGRATION AND REFUGEE PROTECTION ACT Regulations Amending the Immigration and Refugee Protection RegulationsP.C. 2004-326 30 March, 2004 Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration and the Solicitor General of Canada, pursuant to subsection 5(1) and sections 14, 26 and 91 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATORY IMPACT (This statement is not part of the Regulations.) Introduction In October 2002, the Minister of Citizenship and Immigration announced the creation of an external Advisory Committee to identify concerns and provide recommendations on improving the professionalism of immigration consultants. The committee submitted its report to the Minister on May 8, 2003, after a period of consultations with key stakeholders and the public. Its most important recommendation was the creation of an independent self-regulating body. The report also recommended that the government define who may represent a person who is the subject of a proceeding or application before the Minister, an officer, or the Immigration and Refugee Board (IRB). Following the submission of the report, a number of stakeholders from the industry took the initiative to establish the new body. In October 2003, they incorporated under Part II of the Canada Corporations Act, the Canadian Society of Immigration Consultants (CSIC) as a not-for-profit corporation to serve as the independent self-regulating body for immigration consultants. CSIC is establishing membership standards, an enforceable code of conduct, a credible complaint and discipline mechanism, a program of ongoing training and an errors and omissions insurance for immigration consultants. Description Amendments to sections 2, subsection 10(2), and section 13 of the Immigration and Refugee Protection Regulations (IRPR) are necessary to protect the public from unscrupulous immigration consultants and to encourage the immigration consulting industry to self-regulate. Section 91 of the Immigration and Refugee Protection Act (IRPA) provides the authority to enact regulations on who may or may not represent a person who is the subject of a proceeding or application before the Minister, an officer or the IRB. As a result of the reorganization in the federal government on December 12, 2003, certain portions of CIC, notably those involved in the areas of enforcement and intelligence, were transferred to the newly created Canada Border Services Agency (CBSA) under the Minister of Public Safety and Emergency Preparedness (PSEP). This was done by Order in Council and in accordance with the Public Service Rearrangement and Transfer of Duties Act. Because of the transfer, the "Minister", as referenced in these Regulations is either the CIC Minister or the PSEP Minister, depending on the application or proceeding. Similarly, "officer" refers to an officer of CIC or an officer of CBSA involved in an IRPA matter. Representatives can play a constructive role in assisting persons in matters before the Minister, an officer or the IRB. These representatives include those who charge fees for their services (such as lawyers, consultants and Québec notaries) and individuals who provide services at no cost (such as family members, friends, non-governmental and religious organizations, etc.). These Regulations apply to persons who are the subject of proceedings or applications pertaining to immigration and refugee matters, not citizenship matters. The Citizenship Act does not contain the same regulatory making authorization as IRPA. Purpose of these provisions The purpose of these provisions is to prescribe which immigration representatives may or may not, for a fee, represent, advise or consult with a person who is the subject of an immigration or refugee proceeding or application before the Minister, an officer, or the IRB. Most representatives conduct their work in an ethical, professional and effective manner. However, there are persistent and credible reports that some unscrupulous immigration consultants, both in Canada and abroad, facilitate people smuggling and fabricate documents permitting foreign nationals to enter this country illegally. Certain consultants who hold themselves out as experts have no training or experience handling complex files. Others promise the impossible and fail to deliver, and charge exorbitant fees for their services. In a number of reported cases, consultants have charged fees for an unfulfilled promise to file immigration applications, while providing bogus file reference numbers and advising clients that the Canadian government refused the application. These types of activities by unscrupulous immigration consultants and the lack of regulation of the profession have been detrimental to clients, to the consulting profession, and to the reputation of the Canadian immigration and refugee program in Canada and abroad. These activities also have potential national security implications. What the Regulations do The provisions: — define the meaning of "authorized representative"; — specify that a person who is not an authorized representative may not, for a fee, advise, represent or consult with a person before the Minister, an officer, or the IRB; — specify that students-at-law are not deemed to be representing, advising or consulting a person who is the subject of an IRPA application or proceeding, for a fee, if they are working under the supervision of lawyers or notaries who are the authorized representatives of that person; — require immigration and refugee applicants to provide CIC or the CBSA with their representative's contact information; — for authorized representatives, immigration and refugee applicants must identify the organization (Chambre des notaires, CSIC or Law society) and must provide their representative's identification or membership number; — permit a person who is not an authorized representative to provide advice, represent or consult for a fee for up to four years after the Regulations come into force, if the application or proceeding on which they are providing representation was submitted or in progress before the new regulations came into force; and — allow CIC, the CBSA and the IRB to conduct business with representatives who provide their services for a fee if they are members in good standing of one of the organizations described in the definition of authorized representative. Since provincial and territorial law societies and the Chambre des notaires du Québec already regulate their profession with membership standards, codes of conduct and effective complaint mechanisms, lawyers and Québec notaries need not be members of CSIC. Some international organizations, such as the International Organization for Migration (IOM), who charge fees to Canadian immigration applicants for providing advice, would be affected by this regulation as they will need to be members of CSIC. Family, friends, international and religious organizations and NGOs who do not charge fees for providing immigration or refugee advice or services can continue to represent persons who are the subject of proceedings or applications before CIC, the CBSA and the IRB without being members of CSIC or a provincial or territorial law society or the Chambre des notaires du Québec. The Government of Canada recognizes that these groups play an important role for persons with limited resources. In addition, the expression "authorized representative" used in sponsorships [R117(1)(e)(iii)] has been replaced by "a person authorized by a sponsor". This change will ensure a distinction between the definition of "authorized representative" used for immigration consultants and the sponsorship process. This change has no consequence on the sponsorship process. Alternatives One option considered was the establishment of a Commissioner of Consultants to act as a delegate to the Minister in addressing issues surrounding immigration consultants. Unlike the United Kingdom or Australia where this type of provision exists, CIC cannot assume the role as the industry's regulator as CIC does not have the statutory authority to do so. Obtaining such authority would require an amendment to the IRPA. This alternative was not pursued because of substantial financial and human resources implications involved in regulating the industry, including any ensuing liability. As well, questions of fairness and transparency may arise if CIC officers and consultants both report to the same Minister. Another option that was briefly reviewed by the Advisory Committee and CIC is the U.S. model, which restricts representations to lawyers and prohibits consultants from doing immigration work. This is not an acceptable option in Canada where many immigration consultants have effectively represented clients in the immigration and refugee process. A third option is the status quo, or relying on the industry to regulate itself without the support of amendments to the IRPR. Industry efforts towards self-regulation, without the support of regulatory amendment, have not been successful in solving the problem of unethical consultants. The Association of Immigration Counsel of Canada (AICC) and the Organization of Professional Immigration Consultants (OPIC) were both created as voluntary self-regulating professional organizations in an effort to establish a national regulatory framework in the industry. However, as voluntary organizations, they have not been able to effectively enforce membership or high professional standards. Both AICC and OPIC have been instrumental in advocating for a self-regulating body recognized by the Government of Canada and both support the creation of CSIC. Without the support of the regulations, CSIC's role as a regulator for the immigration consultant industry would be significantly diminished, as consultants would not be obliged to become members of CSIC to represent their clients before CIC, the CBSA or the IRB. Unscrupulous consultants who do not qualify for membership with CSIC could continue to operate. The amendments to the IRPR concerning "representation" will enable CSIC to carry out its mandate. Benefits and Costs Benefits The Regulations are intended to prevent unqualified and unethical immigration consultants from representing clients. This new regulatory approach will enhance public confidence in Canada's immigration and refugee system and protect clients. Standards will be established for the immigration consulting profession, which will enhance the profession's credibility. Costs There are some costs associated with the Regulations, such as outreach to key stakeholders, changes to communication materials, revising forms and developing the means for CIC staff to verify membership and status of representatives with CSIC or one of the provincial and territorial law societies. A significant cost has been incurred in supporting the establishment of CSIC. CIC provided CSIC with the necessary "set-up" funds to become operational by April 2004. The estimated cost for 2003-2004 is $700,000. Upon signing a contribution agreement with CIC, CSIC began to solicit membership and develop rules and processes to ensure that it is operational by the time the Regulations come into effect. Additional funding of $500,000 may be loaned to CSIC for 2004-2005 to support its functioning. CSIC will pay back the loan once it has reached a threshold of 3,000 members. Consultation Immigration consultants, lawyers, international organizations, non-governmental organizations and other stakeholders provided comments to the Minister's Advisory Committee from November 27, 2002 to January 15, 2003. The Department also consulted with the IRB, the Department of Justice, the Department of Foreign Affairs and International Trade, the Royal Canadian Mounted Police and the Treasury Board Secretariat. In developing the proposed Regulations, the Department consulted with key external stakeholders through presentations at stakeholder conferences, ongoing telephone consultations, letters and electronic mails. Among the groups consulted were immigration and refugee advocacy groups, the Canadian Bar Association, provincial and territorial law societies, the OPIC, the AICC, the Canadian Council of Refugees and the Chambre des notaires du Québec. Consultations with provinces and territories have been sustained through federal, provincial and territorial meetings and ongoing telephone consultations and contacts. Provinces and territories are supportive of the proposed approach. CIC has made numerous nation-wide presentations to key stakeholders such as NGOs, lawyers and consultants. Pre-publication comments These amendments were pre-published in the Canada Gazette, Part I, on December 13, 2003, for a 30-day period. Following pre-publication, comments were received from individuals, non-governmental organizations, consultants and consultant organizations, lawyers, private legal firms, and legal organizations. The comments received from the public and key stakeholders were supportive of the government's action to address the problem in the consulting industry. Non-government organizations are also supportive of the new regulations and welcomed CSIC as the new self-regulating body for immigration consultants. However, concerns were raised regarding unscrupulous consultants who may falsely claim to be representing clients free of charge. "Phantom" Consultants Concerns were also expressed that the new regulations may exacerbate the existing issue of "phantom" consultants, i.e., those consultants, both inland and overseas, whose names and contact details do not appear on the clients' application forms. CSIC is aware of potential risks and has identified ways in which these may be mitigated. In the same vein of risk mitigation, CIC visa officers overseas are familiar with the regular local consultants. CIC will issue administrative guidelines to officers abroad to ensure that the relationship between the client and the representative is bona fide. CIC will closely monitor the situation to determine whether there is avoidance of the regulations, and will identify potential remedies, including expanding the scope of the regulations to require representatives, including NGOs, who represent without a fee, to become members in good standing of CSIC. Transition Period The proposed four-year period was viewed by some stakeholders as too long given the government's goal of enhancing consumer protection. The reasoning being that, since the government is aware that the action of some unregulated consultants may be very detrimental to persons involved in an immigration or refugee application or proceeding, it is important to enforce the solution to the problem sooner rather than later. Other stakeholders felt instead that any application or proceeding initiated before the coming into force of the regulations should be allowed to run its course. After careful analysis of the arguments presented from both perspectives, the transition period is being maintained at four years. The government feels that this period provides reasonable time for both applicants and their representatives to adjust to the new requirements while also enhancing consumer protection for those applicants who have already chosen to be represented. Following the end of the four-year period, CIC, CBSA and the IRB will no longer deal with these unauthorized representatives. Students-at-law A new subsection was added for students-at-law following comments from the legal community, CSIC, NGOs and the IRB. They commented that the pre-published regulations hinder the ability of "students-at-law" to appear before CIC, the CBSA and the IRB. Articling students who have completed law school, are required to register as "students" with a law society and although they are not members until they are called to the Bar, they are obliged to follow the same professional code of conduct as other members of the law society. Students-at-law under the supervision of lawyers are not deemed to be representing a person for a fee and are therefore not subject to the prohibition in subsection 13.1(1). They must however be working under the supervision of a lawyer or notary who is the authorized representative of that person. The term "students-at-law" is used in the Regulations as a generic term to capture the various terminology used by the provinces for articling students under the supervision of a Canadian lawyer. Law students enrolled in a law school program, paralegals and other office staff are not considered "students-at-law" because they have no direct connection with a law society and are not working under the direct supervision of a lawyer. Interpretation One submission raised the absence of the term "territory" from the Regulations. Under the Interpretation Act, the use of the term "province" already includes the territories and it is therefore not necessary to make explicit reference to it. CSIC Membership To effectively govern their members and to assist in their consumer protection goal, CSIC has decided to limit membership to Canadian citizens, permanent residents or persons registered as Indians under the Indian Act. Concerns were raised that CSIC's decision to limit membership may violate the Charter of Rights and Freedoms and Canada's international trade agreements. As a not-for-profit organization, CSIC is not bound by obligations under international trade agreements, and therefore, may prescribe their own membership requirements. It is the government's view that the Regulations do not contravene any international trade law obligations as they fall within the General Exemptions under the rubric of Consumer Protection. CSIC as a regulatory body for the immigration consulting industry A number of law societies and individuals expressed concerns that because of CSIC's lack of explicit statutory authority, there are no guarantees of preservation of prescribed standards of client protection in the long term. The Barreau du Québec recommended that only lawyers be authorized to provide legal representation to persons in immigration matters, on the basis that the regulation of professions falls under the exclusive constitutional jurisdiction of the provinces. In 2001, the Supreme Court of Canada ruled in the Mangat case that it is appropriate for the federal government to determine who will represent a person for a fee before administrative tribunals, such as the IRB. Moreover, section 91 of IRPA gives the federal government the authority to make regulations governing "who may represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board". Based on this, it is the view of the federal government that sufficient authority exists for these Regulations. A number of submissions also contend that in the absence of a clear legislative or regulatory framework, a subsequent CSIC Board of Directors could modify CSIC's code of conduct and by-laws in such a way that their professional standards and consumer protection are reduced. For 2003-2005, CIC has signed a contribution agreement with CSIC which stipulates that certain deliverables be met, including a code of conduct, an effective complaint and discipline mechanism, ongoing training plan, minimum language standards and a liability insurance plan. CIC will continue to monitor the professional standards set and implemented by CSIC in order to ensure that minimum standards are maintained. Should CSIC, at any stage, fail to fulfill its central role of consumer protection and maintaining professional standards, the government would take action to remove its recognition of CSIC members. To ensure appropriate ongoing public oversight, the CSIC intends to include in their by-laws a provision that will allow the existing public interest members to select their on-going replacements. Law societies and consultant associations expressed concerns about the government recognizing consultant bodies other than CSIC. The government has no intention of recognizing members from any other consultant body. To do so would clearly not be in the public interest as this would inevitably lead to competition for membership among the recognized groups. This undesirable competition could result in lower education standards, less stringent codes of conduct and, eventually, lead to a reduction of consumer protection. On March 3, 2004, the International Association of Immigration Practitioners and Sean Shannon, an immigration consultant, commenced legal proceedings in the Ontario Superior Court of Justice and the Federal Court against the Minister of CIC and others, challenging the proposed Regulations. Compliance and Enforcement Consultants and lawyers will need to be members in good standing of CSIC or one of the provincial or territorial law societies to conduct business with CIC, the CBSA or the IRB. The IRB will not deal with a non-member as counsel, but will continue processing the case and treat the person who is the subject of the proceeding as unrepresented. CIC and the CBSA will not conduct business with someone who is providing representation, advice and consultation on immigration and refugee matters for a fee unless they meet the definition of authorized representative. CIC and the CBSA will develop administrative guidelines to ensure that an applicant's representative is an authorized representative and that CIC and the CBSA are kept informed of any changes to a client's representative status. CIC, the CBSA and the IRB will share information relating to a person who is the subject of a proceeding or application, and their representative, with the appropriate regulating body, should there be concerns regarding the conduct of the representative. The requirement for clients to provide their representative's contact information will allow CIC and CBSA to verify that the representative is in fact a member in good standing of one of the organizations described in the definition of "authorized representatives". CIC will undertake a communication strategy to inform clients of their rights, obligations and the consequences of non-compliance with the new provisions. In order to minimize the risk to vulnerable clients, CIC will make information material available in its offices in Canada and abroad, and brief its officers on the importance of clearly communicating all relevant information on representation to clients. Non-compliance with requirements may lead to CIC and the CBSA returning the application to the client, officers refusing to deal with the unauthorized representative, and applications being refused. With respect to proceedings before the IRB, where counsel has failed to meet the requirements of the regulations, the IRB will not deal with the purported counsel but will deal with the person who is the subject of the proceedings as being unrepresented. The IRB will also take measures to inform persons who appear before it and their representatives of the regulatory requirements and will be providing related training for members and staff of the Board. Gender-Based Analysis The Regulations will have positive impacts and improve access to qualified and ethical immigration consultants, overall. However, individuals from some source countries, and particularly women, may have less access to economic resources and may continue to rely on representatives (family and friends) not covered by the Regulations. Women are traditionally more dependent on informal networks. In combination, these two factors may intensify women's vulnerability to unscrupulous consultants. Contact
Mark Davidson
S.C. 2001, c. 27 SOR/2002-227 |
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