In June 2017 I wrote an article for Policy Options about how I believed that while the existence of the immigration consultant profession in Canada promoted access to justice reforms were needed to strengthen the weeding out of some unethical behaviour. One of the things that I recommended was that Immigration, Refugees and Citizenship Canada (“IRCC”) temporarily have the power to refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous, and that IRCC should also be allowed to levy fines against unscrupulous representatives in certain circumstances.
I recently received the results of an Access to Information Act request where the requester asked to see copies of all complaints sent by IRCC to provincial law societies and the Immigration Consultants of Canada Regulatory Council (the “ICCRC”), the body which regulates immigration consulants. The results, which were over 13o pages, were astonishing for several reasons.
First, I have previously suspected despite general perception to the contrary that the number of complaints filed against immigration consultants was probably the same as against lawyers. However, I seem to have been wrong. Based on the Access to Information Act results, it appears that IRCC has never filed a complaint about a lawyer to a provincial law society. While it is possible that complaints against lawyers simply did not make their way into the Access to Information Act results, or that all of the complaints against lawyers were redacted, this seems unlikely, and at a minimum after reviewing the Access to Information Act results it is clear that the number of complaints that IRCC has made to the ICCRC about unscrupulous consultants dwarfs the number of complaints made about lawyers (which again appears to be none).
Second, the unethical behaviour that IRCC has encountered from unscrupulous representatives ranged from “what was that person thinking” to the truly disturbing.
Finally, the Access to Information Act results make it clear that IRCC is (or at least was previously as things may have changed since the release of the Access to Information Act results) frustrated with the ICCRC disciplinary process. I know many upstanding immigration consultants who are exasperated with what some of their fellow less ethical colleagues appear to have gotten away with impunity. These concerned professionals would not be comforted in learning how broken the complaints process between IRCC and the IRCC appears to be.
Examples of Complaints
Not all of the complaints that IRCC made to the ICCRC were related to particularly egregious conduct. Indeed, some of the actions appear to simply be childish behaviour. For example, as shown in the screen shots below, one instance involved an immigration consultant who submitted a request for a status update on the reconsideration request for a client whose permanent residence application was refused.
The visa office responded by stating that an immigration officer had reviewed the immigration consultant’s reconsideration request, and that the visa office was maintaining the refusal.
The immigration consultant responded by calling the visa officers assholes.
One can only wonder what was going through this person’s head.
Most of the other complaints that IRCC sent the ICCRC were for much more egregious behavior. For example, in one case IRCC sent the ICCRC a complaint which contained allegations that an immigration consultant was conspiring with an educational institution to provide fake transcripts to international students who were not attending the school but needed proof of attendance to renew their study permits. As IRCC’s complaint noted, this constitutes criminal behaviour (s. 127 of IRPA pertains to criminal misrepresentation).
In another case a consultant allegedly counselled his clients who wished to seek asylum in Canada to pretend that they were gay and to even “attend [a] gay pride parade in order to support their claims.” The issue of the Refugee Protection Division (the “RPD”) occasionally requiring that LGBT claimants prove their sexual orientation is controversial. The idea that an authorised representative has apparently been recommending that people fabricate their orientation is insulting to everyone who represents legitimate LGBT claimants.
Other examples of complaints that IRCC sent the ICCRC include situations where consultants:
- advised privately sponsored refugee that he had to pay all resettlement costs;
- encouraged clients to contact Members of Parliament on the basis that MPs can help expedite applications;
- fabricated employer reference letters;
- forged signatures;
- counselled misrepresentation; and
- advertised in a way to suggest that they had inside connections at IRCC.
In highlighting all of the above my point is not to disparage all immigration consultants. As I have said repeatedly, many, if not most, immigration consultants are upstanding and provide valuable advice to their clients. Early on in my practice one of my mentor’s was a licensed consultant. Rather, in reproducing and summarizing the complaints above my goal is to demonstrate that IRCC has been diligently referring complaints about unethical behaviour on the part of some immigration consultants to the ICCRC.
As well, it is of course necessary to note that all of the complaints that IRCC sent to the ICCRC are allegations. However, most appear to have been well founded and were substantiated by documentary evidence.
Frustration with the Disciplinary Process
The Access to Information Act results also demonstrated a certain level of frustration amongst IRCC with the ICCRC disciplinary process. When reading the disclosed documents I was astounded at how IRCC complaints were handled. I really hope that there is more co-operation than what the Access to Information Act results revealed, or that things have changed, because if not, the current situation is simply depressing.
In almost every instance, the ICCRC Complaints Committee determined that it had decided not to refer an IRCC complaint about unscrupulous behaviour to the ICCRC Disciplinary Committee. What was very interesting to read was that the letter that the ICCRC representative sent IRCC conveyed the impression that the author didn’t even realize that the complainant was the government. The ICCRC even informed IRCC, a government agency, that if it wanted a refund for the consultant’s services that IRCC would have to pursue the matter in a local “small claims court.”
Given the ICCRC’s boiler plate responses which often did not seem to even acknowledge that the complainant was the government, it was not surprising then to see that in some of its complaints, IRCC expressed frustration with the ICCRC complaints referral process process. For example, in one instance, IRCC sent a second complaint to the ICCRC about a particular immigration consultant and expressly stated that the ICCRC’s response to the matter had been insufficient.
In another example, IRCC essentially demanded an explanation for why no action had apparently been taken by the ICCRC against an immigration consultant who had an active arrest warrant for counselling misrepresentation and who had fled the country.
It is also apparent that in response to IRCC’s expressed dissatisfaction with the ICCRC disciplinary process that the ICCRC committed to changing its processes. Indeed, as shown below, in May 2015 ICCRC legal counsel even met with IRCC to discuss the issue. The ICCRC subsequently committed to changing how it handles complaints.
While it is possible that these changes have resulted in a more robust disciplinary mechanism, I am skeptical. For one, many of the e-mails from the ICCRC to IRCC in which the ICCRC treated the government as if it were the client of an immigration consultant post-date the above letter. As well, at the Standing Committee of Citizenship and Immigration an Assistant Deputy Minister with the Ministry of Immigration, Refugees and Citizenship Canada stated in May 2017 about the ICCRC that:
I don’t think we’re where we need to be yet. I think there are issues with the organization that can be strengthened in terms of its own internal governance, in terms of some of its issues around finance, and thirdly, I think, in terms of sometimes the effectiveness of its own enforcement processes. This includes ensuring timely enforcement that is appropriately calibrated to the nature of the infraction, and ensuring that there’s follow up in those areas.
I think it’s an organization that is, frankly, still finding its feet. It’s still fairly early days and it has made real progress, but, yes, there are areas where it can be strengthened.
I continue to believe that most immigration consultants play a valuable role in ensuring access to justice. I also think that it makes little sense to replace the ICCRC, which is only six years old, with a new regulatory body that has no experience. However, until the ICCRC “finds its feet” (to quote the Assistant Deputy Minister) Canada’s immigration department should have the ability to sanction or refuse to process applications from consultants that it knows are unethical. Such a temporary measure would ultimately be in the best interests of the ICCRC, the immigration consulting profession, and the integrity of Canada’s immigration system.