ARCHIVED — Vol. 145, No. 48 — November 26, 2011

Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Issue

Operating in Canada and abroad, representatives authorized under the Immigration and Refugee Protection Act (IRPA) assist applicants with immigration proceedings and applications. These representatives include immigration consultants, members in good standing of provincial law societies — including paralegals — and members of the Chambre des notaires du Québec. Representatives can support applicants by providing advice, preparing applications, compiling supporting documentation, and assisting in appeals of decisions. Applicants overseas and in Canada seek assistance from representatives for a variety of reasons, including convenience, perceived or real lack of access to information, limited ability in Canada’s official languages, or cultural norms.

In April of 2004, the Immigration and Refugee Protection Regulations (the Regulations) were amended to ensure that no person who was not an “authorized representative” (i.e. recognized through the Regulations) could, for a fee, represent, advise or consult with a person who was the subject of a proceeding or application under the IRPA. This limitation was meant to enhance public confidence in the Government of Canada’s immigration program.

Since then, concerns have remained about the regulation of some representatives, particularly immigration consultants. Reports from immigration officers and the Canada Border Services Agency (CBSA) have consistently demonstrated that the activities of certain unscrupulous immigration consultants are both serious and widespread. This assessment of the severity of the problem has been supported by Reports of the House of Commons Standing Committee on Citizenship and Immigration issued in 2008 and 2009, media reports, and testimonies at public meetings, as well as by an online survey undertaken by Citizenship and Immigration Canada (CIC) during the spring of 2009. These unethical activities can facilitate the entry into Canada, or continued residency, of foreign nationals who do not meet eligibility and admissibility criteria. Activities can range in seriousness from accepting funds for services then not provided to securing fraudulent identity documentation.

As individual representatives can be involved in thousands of applications and proceedings, their illegal and unethical activities present a threat to the integrity of Canada’s immigration programs and leave applicants vulnerable to bad advice, excessive fees and exploitation. This, in turn, contributes to the erosion of Canada’s long-term immigration objectives and undermines the public’s confidence in the Government’s management of the immigration system.

The 2010 Speech from the Throne included a commitment to take steps to shut down unscrupulous representatives in order to better protect would-be immigrants. To that end, the Government introduced legislation (Bill C-35) in June 2010, which, as An Act to amend the Immigration and Refugee Protection Act, received Royal Assent on March 23, 2011.

Bill C-35 came into force on June 30, 2011, amending the IRPA by making it an offence for anyone other than an authorized representative to represent or advise a person, for consideration, in connection with an application or proceeding under the IRPA. This restriction includes the period before a proceeding begins or an application is submitted, and means that anyone who provides paid-for immigration advice or representation in connection with an application or proceeding under the IRPA at the pre-application stage will need to be an authorized representative. Also on June 30, 2011, a ministerial regulation designating the Immigration Consultants of Canada Regulatory Council (ICCRC) as the new regulator of immigration consultants came into force. The intent of the designation is to better protect applicants in immigration processes and enhance public confidence in the immigration system by designating a regulator of immigration consultants that has demonstrated the ability to establish the necessary competence, integrity, accountability, viability and good governance to effectively regulate immigration consultants.

The changes to the IRPA also enable the Government to enact regulations to disclose information relating to the professional or ethical conduct of representatives to their respective governing bodies, and to create an oversight mechanism of the governing body designated by the Minister of Citizenship and Immigration to regulate immigration consultants to ensure that the body is serving the public interest. This mechanism takes the form of reporting requirements to the Minister that are specified in regulations.

Objectives

The proposed Regulations are intended to support the objectives behind Bill C-35 and further the implementation of these amendments to the IRPA and have the effect of ensuring the integrity of immigration programs. More specifically, these proposed Regulations would

  • permit the Government of Canada to assume a greater oversight role over the body designated to govern immigration consultants and help ensure the provision of professional and ethical representation and services in the public interest;
  • protect potential temporary and permanent resident applicants and refugee claimants by ensuring that all representatives and the bodies that govern them are providing professional and ethical representation; and
  • balance the applicant and the representative’s privacy interests with the need to maintain the integrity of the process by establishing clear authority and parameters for the disclosure of personal information or information about which an individual may have a reasonable expectation of privacy.

Description and rationale

Description

This proposal would amend the Regulations to permit CIC, the CBSA and the Immigration and Refugee Board (IRB) to disclose information to a governing body in cases where an alleged act or omission by a representative is likely to constitute a breach of that person’s professional or ethical obligations. Examples of relevant acts or omissions could include

  • false promises made to the applicant;
  • providing false information to clients about Canada’s immigration processes;
  • failing to provide services agreed to between the representative and client;
  • counselling to obtain or submit false evidence; and
  • acts or omissions which would appear to be contrary to the code of ethics (see footnote 1) of the governing body.

Citizenship and Immigration Canada, the CBSA and the IRB would be authorized to disclose any information relating to a representative’s conduct, but — in the case of any information identifying any other person — only if and to the extent necessary for the complete disclosure of that conduct. Examples of the types of information to be disclosed include

  • the name of the representative;
  • the representative’s contact information (address, phone number, etc.);
  • the name of the governing body and membership number of the representative; and
  • details pertaining to the alleged act or omission.

Notice would be provided to both the representative and the applicant indicating that information may be disclosed to the governing body and that they can contact the Privacy Commissioner if they believe that their personal information has been unlawfully disclosed.

Furthermore, regulations are proposed pursuant to subsection 91(6) that would permit the Minister to require any designated governing body of immigration consultants to provide the Minister with information that could be used to assist in evaluating whether the designated body is governing its members in the public interest so that they provide professional and ethical representation and advice. Such an evaluation may be, in part, based upon the financial viability of the body and an assessment of its governance, accountability and transparency mechanisms.

The Regulations would require the governing body to provide an annual package of documents for use in assessing its effectiveness and viability no later than 90 calendar days following the body’s fiscal year end. As well, the Minister may require information from the governing body within 10 days after receipt of a ministerial notice where it appears that the ability of the designated body to govern its members in a manner that is in the public interest has been compromised. The types of information that would be required include

  • (a) financial information;
  • (b) audit and evaluation statements;
  • (c) information pertaining to activities, remuneration, other cash benefits or other financial advantages of the Board;
  • (d) information pertaining to training the body’s membership and aggregate information about complaints; and
  • (e) other information that would permit the Minister to evaluate whether or not the designated body governs its members in the public interest.
Rationale
Proposed amendments to facilitate the sharing of information

In the course of their duties, officials of CIC, the CBSA and the IRB become aware of acts or omissions by representatives that may bring into question their professional or ethical conduct. The Regulatory Impact Analysis Statement, which was published with the aforementioned 2004 regulatory amendment, indicated that government officials would disclose information relating to an applicant and their representative, with the appropriate governing body, should there be concerns regarding the conduct of the representative. For those instances, therefore, where there is a reasonable basis for concluding that the activities of an intermediary bring into question their professional or ethical obligations, CIC, the CBSA and the IRB are seeking clear and transparent authority to disclose information relating to such alleged conduct to the appropriate governing body for assessment and appropriate action.

Proposed amendments to request information from the designated governing body

The 2004 Regulations did not include any governance criteria or oversight mechanisms with respect to any entity designated to serve as the regulator of immigration consultants, which may have contributed to some of the concerns noted above by the House of Commons Standing Committee on Citizenship and Immigration. The 2008 and 2009 independent reports of this Committee were considered in the decision to bring about change in the governance structure of the federal regulator of immigration consultants. Enhanced oversight is required from the designated governing body because, unlike provincial law societies and the Chambre des notaires du Québec, the body designated to serve as the regulator of immigration consultants is not currently subject to legislative requirements to ensure that it is meeting the standards that have been set for it. It is reasonable to expect that the governing body of immigration consultants will be held to minimum standards with respect to governance and accountability and be required to report such activity to public officials.

The proposed amendments would therefore exercise the regulation-making authority provided by Bill C-35 to require any body designated by the Minister to provide the Minister with specific information as previously described. The information would be used to assist in evaluating that the designated body is governing its members in the public interest.

Consultation

With regard to the development of proposed information disclosure regulations, CIC, the CBSA, and the IRB have cooperated closely in the development of this regulatory proposal. Consultations were also undertaken at that time with provincial and territorial governments, provincial and territorial law societies, the Chambre des notaires du Québec, the Canadian Society of Immigration Consultants, the Federation of Law Societies of Canada, the Canadian Association of Professional Immigration Consultants, and the Canadian Bar Association. Comments received were generally positive and the primary concern was ensuring the applicant’s right to privacy. Citizenship and Immigration Canada provided a Privacy Impact Assessment (PIA) report, which is available upon request, to the Office of the Privacy Commissioner of Canada during the development of information disclosure regulations. An update to the PIA was recently completed following the coming into force of specific statutory authority to create such regulations under the IRPA.

The recent coming into force of Bill C-35, which provided the statutory authority under the IRPA to regulate the provision of information to the Minister from the designated regulator, followed extensive consultation throughout the legislative process. In addition, these proposed Regulations were informed by an existing agreement between CIC and the designated regulator of immigration consultants, the Immigration Consultants of Canada Regulatory Council, and from further consultations with the governing body with respect to the regulatory direction being proposed.

Implementation, enforcement and service standards

With respect to the information sharing amendments, CIC intends to collect, share and retain information related to alleged acts or omissions by representatives, that may bring into question their professional or ethical conduct, in secure systems already in existence. The costs associated with this activity are anticipated to be minimal and within the existing mandate of CIC, CBSA and IRB officers.

Contact

Justine Akman
Director
Social Policy and Programs
Immigration Branch
Citizenship and Immigration Canada
Jean Edmonds Tower South, 8th Floor
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Email: Justine.Akman@cic.gc.ca
Telephone: 613-941-9022

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsections 5(1) and 91(6) (see footnote a) and paragraph 150.1(1)(c) (see footnote b) of the Immigration and Refugee Protection Act (see footnote c), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Justine Akman, Director, Social Immigration Policy and Programs, Immigration Branch, Department of Citizenship and Immigration, Jean Edmonds South Tower, 8th Floor, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-941-9022; fax: 613-941-9014; email: Justine.Akman@cic.gc.ca).

Ottawa, November 17, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION
AND REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. The Immigration and Refugee Protection Regulations (see footnote 2) are amended by adding the following after section 13:

DIVISION 4

DISCLOSURE OF INFORMATION

Authorized disclosure

13.1 If a member of the Board or an officer determines that the conduct of a person referred to in any of paragraphs 91(2)(a) to (c) of the Act in connection with a proceeding — other than a proceeding before a superior court — or application under the Act is likely to constitute a breach of the person’s professional or ethical obligations, the Department, the Canada Border Services Agency or the Board, as the case may be, may disclose the following information to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct:

  • (a) any of the information referred to in paragraphs 10(2)(c.1) to (c.3); and
  • (b) any information relating to that conduct, but — in the case of any information that could identify any other person — only to the extent necessary for the complete disclosure of that conduct.

DIVISION 5

DESIGNATED BODY — INFORMATION REQUIREMENTS

General requirement

13.2 (1) A body that is designated under subsection 91(5) of the Act must provide to the Minister, within 90 days after the end of each of its fiscal years, the following information and documents:

  • (a) its most recent annual report;
  • (b) its most recent financial statement and the auditor’s report on that financial statement;
  • (c) its instrument of incorporation, with an indication of any changes that have been made to that document since the last time it provided that document to the Minister in accordance with this section;
  • (d) its by-laws, with an indication of any changes that have been made to those by-laws since the last time it provided them to the Minister in accordance with this section;
  • (e) the minutes of each of the general meetings of its members that has been held during its last completed fiscal year;
  • (f) the terms of reference of its board of directors, if any, with an indication of any changes that have been made to those terms of reference since the last time it provided them to the Minister in accordance with this section;
  • (g) the conflict of interest code for its directors, if any, with an indication of any changes that have been made to that code since the last time it provided the code to the Minister in accordance with this section;
  • (h) the name, professional qualifications and term of office of each of its directors, with any change in the board of director’s composition that has occurred since the last time it provided the names of its directors to the Minister in accordance with this section;
  • (i) the minutes of each meeting of its board of directors that has been held during its last completed fiscal year;
  • (j) the name, terms of reference and composition of each of its executive committees, if any, as well as the name and professional qualifications of each of their members;
  • (k) the minutes of each meeting of its executive committees, if any, that has been held during its last completed fiscal year;
  • (l) any sums disbursed to its directors and officers as remuneration and any cash benefits or financial advantages granted to them, during its last completed fiscal year;
  • (m) the name and membership number of each of its members;
  • (n) the rules that govern the conduct of its members, with an indication of any changes that have been made to those rules since the last time it provided them to the Minister in accordance with this section;
  • (o) information, made anonymous, concerning the number and type of any complaints that it received during its last completed fiscal year in relation to the conduct of any of its members, including the distribution of those complaints by type and province of origin, the measures that it took to deal with those complaints and any decision that it rendered and sanction that it imposed as a consequence of those complaints;
  • (p) information, made anonymous, concerning any investigation by it, during its last completed fiscal year, into the conduct of any of its members if that conduct likely constitutes a breach of their professional or ethical obligations;
  • (q) the amount of any fees charged by it to its members, including its membership fees, with any change in those fees that has occurred since the last time it provided that information to the Minister in accordance with this section;
  • (r) the nature and amount of its entertainment, hospitality, meal, transport, accommodation, training and incidental expenses, if any, that were incurred by any person during its last completed fiscal year, as well as the name of the person;
  • (s) any training requirements that it imposes on its members; and
  • (t) information concerning any training made available by it to its members during its last completed fiscal year, including
    • (i) the professional qualifications required of trainers,
    • (ii) the identification of the mandatory courses from among those on offer,
    • (iii) any evaluation methods and applicable completion standards, and
    • (iv) the name and professional qualifications of each trainer.

Special requirement

(2) If the ability of the designated body to govern its members in a manner that is in the public interest so that they provide professional and ethical representation and advice appears compromised, the body must provide to the Minister — within 10 business days after receipt by the body of a notice from the Minister mentioning the existence of such a situation and setting out the information or documents required — any information or documents from among those referred to in paragraphs (1)(c) to (t), that are referred to in the notice and are necessary to assist the Minister to evaluate whether the body governs its members in a manner that is in the public interest so that they provide professional and ethical representation and advice.

Electronic means

(3) Despite subsection 13(1), any information or document set out in subsection (1) or (2) may be provided to the Minister by electronic means.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

[48-1-o]