ARCHIVED — Vol. 146, No. 9 — April 25, 2012

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Registration

SOR/2012-77 April 10, 2012

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2012-389 April 5, 2012

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsections 5(1) and 91(6) (see footnote c) and paragraph 150.1(1)(c) (see footnote d) of the Immigration and Refugee Protection Act (see footnote e), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND
REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. The Immigration and Refugee Protection Regulations (see footnote 1) 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:

  1. (a) any information referred to in paragraphs 10(2)(c.1) to (c.3); and

  2. (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:

  1. (a) its most recent annual report;

  2. (b) its most recent financial statement and the auditor’s report on that financial statement;

  3. (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;

  4. (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;

  5. (e) the minutes of each of the general meetings of its members that has been held during its last completed fiscal year;

  6. (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;

  7. (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;

  8. (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;

  9. (i) the minutes of each meeting of its board of directors that has been held during its last completed fiscal year;

  10. (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;

  11. (k) the minutes of each meeting of its executive committees, if any, that has been held during its last completed fiscal year;

  12. (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;

  13. (m) the name and membership number of each of its members;

  14. (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;

  15. (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, country of origin and, in the case of Canada, 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;

  16. (p) information in aggregate form, 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;

  17. (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;

  18. (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;

  19. (s) any training requirements that it imposes on its members; and

  20. (t) information concerning any training made available by it to its members during its last completed fiscal year, including

    1. (i) the professional qualifications required of trainers,

    2. (ii) the identification of the mandatory courses from among those on offer,

    3. (iii) any evaluation methods and applicable completion standards, and

    4. (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 to be compromised, the body must provide to the Minister — within 10 business days after the day on which the body receives from the Minister a notice indicating the existence of such a situation and setting out any information or documents from among those referred to in paragraphs (1)(c) to (t) that 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 — the documents or information set out in the notice.

Redacted information

(3) The information and documents set out in subsections (1) and (2) may be provided in redacted form to exclude from them information that is subject to litigation privilege or solicitor-client privilege or, in civil law, to immunity from disclosure or professional secrecy of advocates and notaries.

Electronic means

(4) 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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

Operating in Canada and abroad, persons who may represent or advise another person for consideration in connection with a proceeding or application under the Immigration and Refugee Protection Act (IRPA) include members in good standing of a law society of a province — including paralegals — the Chambre des notaires du Québec, or of a body designated by the Minister of Citizenship and Immigration. 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 order to ensure the integrity of Canada’s immigration program, legislative and regulatory amendments have been made to ensure immigration representatives act in a professional and ethical manner.

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.

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.

An Act to Amend the Immigration and Refugee Protection Act came into force on June 30, 2011, amending the IRPA by making it an offence for anyone other than a member in good standing of a law society of a province — including a paralegal — the Chambre des notaires du Québec, or of a body designated by the Minister of Citizenship and Immigration to represent or advise a person for consideration, in connection with an application or proceeding (other than before a Superior Court) under the IRPA. This restriction includes the period before a proceeding begins or an application is submitted.

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.

2. Issue

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. Activities can range in seriousness from accepting funds for services then not provided to securing fraudulent documents to facilitate entry into Canada, or to demonstrate continued residency in Canada.

An Act to Amend the Immigration and Refugee Protection Act also enables the Government to make regulations relating to the disclosure of information relating to the professional or ethical conduct of a person who may represent or advise another person for consideration in connection with a proceeding or application under IRPA (other than before a Superior Court) to a body that is responsible for governing or investigating that conduct, 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.

3. Objectives

The Regulations will support the objectives behind An Act to Amend the Immigration and Refugee Protection Act and further the implementation of these amendments to the IRPA and have the effect of ensuring the integrity of immigration programs. More specifically, the Regulations will

  • 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 body that governs immigration consultants 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.

4. Description

The Regulations have been amended to permit CIC, the CBSA and the IRB to disclose information to a body that is responsible for governing and investigating conduct in cases where conduct by one of its members is likely to constitute a breach of that person’s professional or ethical obligations. Examples of relevant conduct 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
  • conduct which would appear to be contrary to the code of ethics (see footnote 2) of the governing body.

Citizenship and Immigration Canada, the CBSA and the IRB are now authorized to disclose any information relating to a representative’s conduct, but — in the case of any information identifying any other person — only to the extent necessary for the complete disclosure of that conduct. 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 conduct.

Furthermore, the regulations made pursuant to subsection 91(6) of IRPA require that any designated governing body of immigration consultants 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 require the governing body to provide an annual package of documents for use in assessing its effectiveness and viability no later than 90 days following the body’s fiscal year end. As well, the Minister may require information from the governing body within 10 business days after receipt by the designated body of a ministerial notice if 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 will be required include

  1. (a) annual reports and financial statements;

  2. (b) information pertaining to the body’s board of directors and executive committees;

  3. (c) information pertaining to the body’s by-laws, rules that govern the conduct of its members, and membership;

  4. (d) information pertaining to activities, remuneration, other cash benefits or other financial advantages;

  5. (e) information pertaining to training the body’s membership and aggregate information about complaints; and

  6. (f) other prescribed information that would permit the Minister to evaluate whether or not the designated body governs its members in the public interest.

5. Consultation

With regard to the development of the information disclosure regulations, CIC, the CBSA, and the IRB have cooperated closely in the development of the regulations. 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 coming into force of An Act to Amend the Immigration and Refugee Protection Act, 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 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 that was to be proposed.

Pre-publication comments

Following pre-publication of these amendments in the Canada Gazette, Part Ⅰ, on November 26, 2011, a total of 12 comments were received during the 30-day public comment period. Of these submissions, 6 were supportive of the Government’s proposed regulatory proposal, one was neutral in nature, and 5 did not refer to the regulations at hand, rather commenting or requesting clarification on other matters related to immigration consultants. The majority of comments were from immigration consultants, with some comments from lawyers, and the general public. A submission was also provided by the regulator of immigration consultants, the Immigration Consultants of Canada Regulatory Council (ICCRC).

Of the supportive comments received, two simply stated their support for the proposed Regulations, two indicated their support while also referring to other issues not related to the regulations at hand, and two indicated support while also providing additional recommendations on the Regulations.

Recommendations received related to the proposed reporting requirements put in place by the Government on the designated regulator of immigration consultants; a recommended process for the appointment, mandate and powers of future ICCRC public interest directors; and the transmission of information regarding conduct by a representative from CIC, CBSA and the IRB to its respective governing body.

Stemming from comments received, some changes have been incorporated into the Regulations. More specifically, it is now specified that information and documents to be provided by the designated body, as part of its reporting to the Minister of Citizenship and Immigration, may be provided in redacted form in order to exclude from them information that is subject to litigation privilege, solicitor-client privilege — or, in civil law, immunity from disclosure or professional secrecy of advocates and notaries. With respect to the reporting requirement to include the number and types of complaints received by the designated governing body in relation to the conduct of any of its members, the country of origin has been added to the list of information to be provided, in order to account for complaints originating from outside of Canada. With respect to information concerning investigations by the designated governing body into the professional or ethical conduct of its members, the Regulations now specify that this information is to be provided in aggregate form.

6. Small business lens

As previously mentioned, the Regulations will now require the governing body to provide an annual package of documents for use in assessing its effectiveness and viability. As well, the Minister may require information from the governing body within 10 business 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. While now incorporated in the Regulations, similar requirements were already established and agreed to by CIC and the ICCRC, through an agreement related to the body’s designation as regulator of immigration consultants. Therefore, the Regulations are not expected to impose an additional burden on the immigration consultant governing body.

7. Rationale

Amendments to facilitate the sharing of information

In the course of their duties, officials from CIC, the CBSA and the IRB become aware of information that may bring into question the professional or ethical conduct of a representative. The Regulatory Impact Analysis Statement that 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 will now have clear and transparent authority to disclose information relating to such conduct to the appropriate governing body for assessment and appropriate action.

Notice will 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.

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 to enable the review of information regarding the governance structure of the federal regulator of immigration consultants. Enhanced oversight is required of 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 in the immigration context. It is reasonable to expect that the governing body of immigration consultants is to be held to minimum standards with respect to governance and accountability and be required to report such activity to public officials.

The amendments are therefore made under the regulation-making authority provided for in An Act to Amend the Immigration and Refugee Protection Act to require any body designated by the Minister to provide the Minister with specific information as previously described. The information will be used to assist in evaluating that the designated body is governing its members in the public interest.

8. Implementation, enforcement and service standards

With respect to the information sharing amendments, CIC will collect, share and retain information related to conduct 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 minimal and within the existing mandate of CIC, CBSA and IRB officers.

9. Contact

Caroline Riverin Beaulieu
Deputy Director
Social Policy and Programs
Immigration Branch
Citizenship and Immigration Canada
Telephone: 613-954-3483
Fax: 613-941-9014
Email: Caroline.RiverinBeaulieu@cic.gc.ca

Footnote a
S.C. 2008, c. 3, s. 2

Footnote b
S.C. 2001, c. 27

Footnote c
S.C. 2011, c. 8, s. 1

Footnote d
S.C. 2011, c. 8, s. 4

Footnote e
S.C. 2001, c. 27

Footnote 1
SOR/2002-227

Footnote 2
www.iccrc-crcic.ca/admin/contentEngine/contentImages/file/Code_of_Conduct__English.pdf