My opening remarks to the Parliamentary Committee on Citizenship and Immigration delivered on May 8, 2017 in Ottawa:
Thank you; it’s an honour and privilege to appear and participate in your study of the legal, regulatory and disciplinary frameworks governing and overseeing immigration consultants in Canada.
I am an immigration lawyer practicing in Calgary; before I went into private practice I was a Refugee Protection Officer at the Refugee Protection Division, at the Immigration and Refugee Board. As a former immigration hearings officer and now as an immigration lawyer I’ve done hundreds of hearings before every Division of the IRB. I, my law partner, 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 important to my community. I've heard many horror stories. Few come forward to complain and even if they did, it's clear that the ICCRC has failed in terms of disciplining it's errant members.
I’ve seen lawyers and immigration consultants at all three divisions of the IRB. I’ve seen their work, reviewed transcripts of their hearings and their applications.
I’ve seen firsthand the consequences of bad advice.
There are good lawyers and bad ones; good consultants and bad ones.
In my opinion, very 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 & Southeast Asian Legal Clinic. I share many of those concerns.
I disagree however with the CBA call to restrict representation for fees only by 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 that have prior experience in immigration, including former immigration officers or CBSA officers, former lawyers; others that know their limits.
They do provide a valuable service. I don’t think lawyers automatically have a monopoly over the delivery of all aspects of immigration law.
But fact of the matter 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 (This is what the Ashton College website says: “Program gives students the opportunity to become part of this exciting field without forcing them to be on campus...” No courses on legal research, evidence, administrative law principles.) once you complete this you need to pass the ICCRC exams – and by the way even if you fail that you get three more kicks at the can - anyone over 18 years of age can, on day one, represent a refugee before the RPD.
To represent a refugee means knowing the substantive law in this area; terms of art like state protection and internal flight alternative; Exclusion clauses such as crimes against humanity, war crimes, serious international non-political crimes.
That same person can also on day one appear before the Immigration Division to represent a Permanent Resident facing charges overseas and a loss at that division could result in the loss of status and removal without a further appeal.
That same person can also represent a PR at the IAD with a criminal conviction in Canada; or a PR facing an allegation of misrepresentation; or a Canadian sponsor appealing against a refusal by a visa officer to a family member overseas.
There’s no way that a 6 month online course can give you grounding in substantive law to be an effective advocate.
We don’t allow 16 year olds to drive 18 wheelers. There needs to be graduated licensing for consultants. Just because you can fill out a work permit doesn’t mean you can appear and represent and advocate for a refugee, a PR facing criminal charges abroad, a PR with a conviction in Canada, or a Canadian looking to appeal against a refused visa to a family member.
We are relying on immigration consultants, individuals to self-police – to restrict themselves – when it’s in their financial, pecuniary interests to take on work, even work they are not competent to do. They have paid thousands for their education, the skills exam, registration, insurance, and more. They want a return on that investment.
My recommendation is to split the baby. In the UK, the legal profession is split between solicitors and barristers. Solicitors do transactional type 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 tribunal – this requires training in evidence, ethics, court practice and procedure, legal research. There is no way that 320 hours, a few exams, and maybe a mock interview module will allow a consultant to practice 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 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 that 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 gun fight. Ultimately, it is the refugee claimant, the spouse separated from her partner for years, the PR facing removal and loss of status from a country that he has called home for decades, that will pay the price.
Thank you for your time and I look forward to answering any questions this committee may have.
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