Comments on proposed regulations re. immigration consultants

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Comments of the Canadian Council for Refugees
On Proposed Regulations Amending the Immigration and Refugee Protection Regulations
Published in the Canada Gazette, Part I, 13 December 2003



1.    Representation for a Fee
The CCR welcomes the fact that the proposed regulations limit representation for a fee to authorized representatives, while continuing to allow representation without a fee by others.  Member organizations of the CCR as well as other non-governmental organizations serving refugees and immigrants in some cases represent clients in matters under the Immigration and Refugee Protection Act.  For many people who do not have the means to pay a representative, this is the only way that they can be represented.  It is for this reason that NGOs offer this service, despite the many other demands on their limited resources.

The CCR also welcomes the fact that NGOs (and others offering representation for free) are not required by the regulations to apply for exemptions from the requirements applying to those offering representation for a fee.  It would not be appropriate for NGOs to be in any way subject to the Canadian Society of Immigration Consultants, since that body is created to regulate consultants, not to evaluate NGOs, whose role and mandate are quite different.  We also note the potential negative effect of placing burdens, such as requiring applications for exemptions, on NGOs offering representation for free.  If the regulations made requirements of those offering representation without a fee, NGOs might cease to offer such services, with the result that the applicants would be disadvantaged because they would end up being completely unrepresented.

The CCR notes however that it will be necessary to have in place measures to ensure that unscrupulous consultants do not subvert the law by falsely claiming to be representing the applicant free of charge, perhaps by hiding behind a phony NGO.  Such measures should be designed to target potential abusers, without inconveniencing NGOs.

2.    Penalizing the applicant
The CCR is concerned that the proposed regulations have the potential for penalizing the applicant if, through no fault of the applicant, the information about the representative is incomplete or inaccurate.  By amending IRPR 10(2) to include the name and details of the representative as part of the required information for an application, applicants may be penalized, since processing is delayed if the application is incomplete.  Worse, the delay may mean that an applicant misses a deadline and loses an entitlement (for themselves or for a family member).

Furthermore, by including the representative’s details among the required information, the government is making the applicant responsible for the accuracy of the information.  According to the Regulations, the applicant must sign that the information is “complete and accurate” (IRPR 10(2)(d)).  Thus the applicant could be found guilty of misrepresentation if the representative provides false information.

We recommend that the responsibility for the information about the representative lie with the representative, who should sign a declaration as to its accuracy.  If the representative is not an authorized representative, the application should not on that account be considered incomplete.  Instead the applicant should be informed that the government will not accept that person as their representative, but that the application will still be processed.  Any appropriate disciplinary measures should be pursued against the representative, without penalizing the applicant.

3.    Four-year phase in
The CCR considers excessive the proposal of a four year period during which unauthorized representatives would continue to be accepted.  While regrettably it is true that immigration files often take many years to be processed, it is not clear why the government should facilitate the continuing representation by a person who has not become an authorized representative.  Applicants do quite often change their representative in the course of a case, and if their representative is not an authorized representative it may in fact be to their advantage to do so.  Two years would give ample time for the government to inform applicants that, unless their representative becomes an authorized representative, they will either have to find another representative or proceed unrepresented.  In any case, it should be clear that any outstanding applications would continue to be processed even after the end of the grace period, although the representative stipulated on the application would not be recognized beyond that period, unless authorized.

12 January 2004
Jan 2004