Operational Bulletin 401 – April 10, 2012

The Coming into Force of Information Sharing Regulations (“Authorized Representatives”)

Summary

The authorities made an amendment to the Immigration and Refugee Protection Regulations (IRPR). This amendment came into force on April 10, 2012.

Under the terms of this amendment, officers of the following organisations would need to disclose information concerning the professional or ethical conduct of representatives, authorised under the Immigration and Refugee Protection Act (IRPA), to their respective governing bodies:

• Citizenship and Immigration Canada (CIC)
• The Canada Border Services Agency (CBSA) and,
• The Immigration and Refugee Board (IRB)

These organisations would disclose the information in cases where the officer determines that the conduct of the person is likely to constitute a breach of the person’s:

• Professional obligations or,
• Ethical obligations

Issue

This Operational Bulletin (OB) provides guidance to officers of:

• Citizenship and Immigration Canada (CIC) and,
• The Canada Border Services Agency (CBSA)

It directs them on how and when to report information to the governing bodies of immigration representatives on the professional or ethical conduct of their members. This activity would help in supporting the strengthened oversight of immigration representatives.

Background

Bill C-35, An Act to Amend the Immigration and Refugee Protection Act, came into force on June 30, 2011. This bill made it an offence for anyone other than an authorised representative to advise or represent a person. That too, for a fee or any other consideration. This was especially the case in connection with:

• An application under the Immigration and Refugee Protection Act (IRPA) or,
• A proceeding under the Immigration and Refugee Protection Act (IRPA)

On the same day, the authorities also brought a Ministerial regulation into force. This Ministerial regulation designated the Immigration Consultants of the Canada Regulatory Council (ICCRC) as the new regulator of immigration consultants.

This statutory change enabled the Government to make regulations. These regulations pertained to:

• The disclosure of information concerning the professional or ethical conduct of representatives to their respective governing bodies and,
• Create an oversight mechanism of the governing body designated by the Minister of Citizenship and Immigration to regulate immigration consultants for ensuring that the body is serving the public interest

The authorities have put the new regulatory provisions into place. These provisions empower officers of:

• Citizenship and Immigration Canada (CIC)
• The Canada Border Services Agency (CBSA) and,
• The Immigration and Refugee Board (IRB)

The regulatory provisions enable the officers of these organisations to disclose the information in cases where the officer determines that the conduct of the person is likely to constitute a breach of the person’s:

• Professional obligations or,
• Ethical obligations

The officer would disclose this information to the appropriate governing body for assessment and appropriate action where the officer determines that the conduct of the person is likely to constitute a breach of the person’s:

• Professional obligations or,
• Ethical obligations

The authorities have also updated IMM 5476 (Use of a Representative). IMM 5476 now provides a notice both the representative and the applicant that:

• The officers might disclose the information to the governing body and,
• They could contact the Privacy Commissioner if they believe that the officers have unlawfully disclosed the representative’s or the applicant’s personal information

The authorities have also put in place certain other regulatory provisions. These provisions require the designated body of immigration consultants to provide the Minister with certain information. This information would help the Minister assess whether the designated body is governing its members in the best public interest.

The Regulations require the governing body to provide an annual package of documents. These documents would be useful in assessing the governing body’s effectiveness and viability. The governing body would need to provide this annual package of documents no later than 90 calendar days after the end of the body’s fiscal year.

In some situations, the Minister might require information from the governing body within 10 business days, after receiving a ministerial notice. In this situation, the ministerial notice might indicate that the designated body has seriously compromised its ability to govern its members in a manner that is in the best public interest.

The Instructions

The regulatory provisions empower officers of:

• Citizenship and Immigration Canada (CIC)
• The Canada Border Services Agency (CBSA) and,
• The Immigration and Refugee Board (IRB)

The regulatory provisions enable the officers of these organisations to disclose the information in cases where the officer determines that the conduct of the person is likely to constitute a breach of the person’s:

• Professional obligations or,
• Ethical obligations

Some typical examples of relevant acts or omissions could include scenarios such as:

• Making false promises to the applicant
• Providing false information to clients about Canada’s immigration processes
• Failing to provide the services agreed to between:
• The representative and,
• The client
• Counselling for obtaining or submitting false evidence and,
• Other acts or omissions that would appear to be contrary to the code of ethics of the governing body

Officers would need to go through sections 10.3 and 10.4 of IP 9. This contains further details about professional and ethical misconduct.

Situations could arise where a client complains to an officer about the general misconducts of a representative. In this scenario, the officer would need to encourage the client to:

• Visit the CIC’s web page on the topic and,
• Contact the respective regulatory body directly

Similarly, situations could also arise where officers receive information about the professional or ethical conduct of a representative. After examining the situation, the officers might determine that the conduct of the person is likely to constitute a breach of their professional or ethical obligations. In this scenario, the officers would need to forward the information to the National Head Quarters (NHQ). The National Head Quarters (NHQ) would transmit the information to the appropriate governing body. However, the National Head Quarters (NHQ) would encrypt the information before transmitting it.

The authorities will also provide further updates to IP 9 shortly.

The Contact Process

Situations might arise where officers require further information on any of the procedures mentioned in this OB. In this scenario, officers would need to contact the Operational Management and Coordination Branch.

Note 

While no longer referenced in IRPA and its Regulations, for ease of reading, the term “authorized representatives” is used throughout this document when referring to members in good standing of a Canadian provincial/territorial law society – including paralegals, the Chambre des notaires du Québec, or of a body designated by the Minister of Citizenship and Immigration (the Immigration Consultants of Canada Regulatory Council).

Source: Citizenship and Immigration Canada (CIC)