Ravi Jain is an immigration lawyer and vice-chair of the CBA National Immigration Law Section
Numerous immigration consultants were alleged to have exploited approximately 2,600 foreign workers and students, both in Canada and abroad, according to a recent Globe and Mail investigation. A few days later, the federal budget implementation bill explained how the budget’s allocation of more than $100-million over 10 years and then $10-million annually would be used to prop up immigration consultants again. This is the third iteration of self-regulation for such consultants, this time with some government oversight but also millions from the pockets of taxpayers.
The announcement is poor timing for the government, given it came on the heels of the Globe investigation. In what other area of law is the federal government spending taxpayer dollars to prop up non-lawyers? Are vulnerable immigrants and refugees less deserving of truly professional legal representation?
For more than 20 years, the Canadian Bar Association did not object to the idea of consultants if they could be effectively regulated. In 2017, after carefully reflecting on the past two iterations of self-governance, the CBA finally said enough is enough.
MP offices are inundated with complaints and immigration casework. The media regularly report instances of fraud including charging up to $200,000 for a fake job offer or falsely advising that graduation from a private college can lead to coveted postgraduate work permits. As The Globe reported: “Exploitation is far more prevalent than has been reported, primarily because most victims are reluctant to go to the authorities for fear that they will be deported.”
Lawyers are often consulted when it’s too late and often by people who thought they were previously hiring lawyers. Sadly, the problem has been growing. There were approximately 1,600 registered consultants under the first regulator and under the current regulator there are more than 5,400. According to the current regulator’s December, 2016, report when there were 3,600 members, 1,710 complaints were filed in the preceding five years.
In the same period, there were only 23 reported disciplinary cases against immigration lawyers across Canada. Victims of consultants have complained about applications not filed, money-back guarantees not honoured, decisions to refuse not disclosed, exorbitant fees and frivolous applications filed. A recent report by Lexbase revealed that refusal rates for temporary resident applications were 18 per cent when the person was represented by a consultant versus 10 per cent with a lawyer.
Litigation should be off-limits, and yet the new regime calls for tiered licensing and education tailored to litigating. That the government would contemplate this is baffling, given Paul Aterman, then deputy chairperson of a division of the Immigration and Refugee Board said: “Certainly when it comes to the question of litigation, there is considerable scope for improvement when it comes to immigration consultants acting as litigators.” Consider that refugee hearings involve matters of life and death.
Registered consultants have a paid advocacy group, which in turn has hired a paid lobbyist. Perhaps this explains why consultants asked for more power and more money and received both. Many have also suggested that consultants are key supporters of MP election campaigns.
Immigration is a complicated, technical area of law that changes frequently. It intersects with human rights, international, constitutional, criminal, family, employment, corporate, tax and administrative law. Besides undergoing rigorous training, lawyers must keep up-to-date and must only file meritorious applications, advising against appealing when there is a low chance of success. This saves taxpayer dollars and reduces stress on tribunals and courts. Given the strain on our refugee determination process, this is a timely consideration.
No one is trying to put consultants who strive to be diligent out of work. Subject to law society rules, they already partner with lawyers, assist with marketing initiatives and work on files. But the best way to protect the public is if only lawyers can sign off and litigate. This also avoids a confusing message to the public around who may represent for a fee and it is the only effective way to deal with “ghost” agents both local and abroad who take fees without disclosing their representation. The government’s solution does nothing to address them.
Spending $100-million over 10 years on this third attempt to regulate consultants is a tacit acknowledgement of all the problems associated with immigration consultants. How odd that the government wishes to give consultants yet another chance to practise law and that, instead of protecting the public, has chosen to protect consultants.
As Canada welcomes more permanent and temporary residents than ever before, and as the number of consultants continues to multiply, stories of negligence and fraud will continue. Hopefully, future politicians will place public protection over electoral calculus.