FEDERAL COURT COMMENTS ON SO-CALLED IMMIGRATION CONSULTANTS!

The following commentary is intended to provide insight into some of the issues involved in retaining legal counsel in the Canadian Citizenship & Immigration field.

There is no rule of thumb, written or unwritten, which prescribes that one must engage counsel to successfully apply for Canadian permanent residence. Many individuals do apply and succeed on their own, while many who apply on their own incur added delays or even fail.

The process of applying for Canadian permanent residence often arises from a well-planned decision to improve one's livelihood and to provide the applicant with options which are potentially life-long for the accompanying family members involved. The process, in addition to being costly and time consuming, depends, in part, on the subjective assessment of third party person(s) [Visa Officers], who are given the qualified discretion to review and "rate" a number of subjective factors submitted by an applicant - including the interview.

The process of assessment requires a thorough understanding of laws and regulations which are regularly being revised, and policies and procedures which are modified on a weekly basis to meet the objectives of the current Government. The decision-making process which flows from the exercise of such qualified discretion, also requires the consideration of a number of issues, which are the subject of volumes of Government of Canada processing procedure manuals and government operations memorandums, by immigration officers. Indeed, a number of decisions rendered by visa officers are often challenged by effective lawyers and become the subject of volumes of reported case law.

While it is the Immigration Department's preference to propagate the myth that one can apply without representation, the reality is that the rights of applicants are often preserved, and even enhanced, when represented by effective legal counsel. Admittedly, even the Government of Canada acknowledges in its own writings that "When lawyers ... present their clients' cases in a clear and concise manner, processing is expedited and simplified" - (Canadian Embassy, Moscow, "Guidelines For Representatives" - October 28, 1996).

A consultant is any individual who is called on to render advice. A licensed lawyer is an individual lawfully permitted to perform legal functions such as draft legal documents, interpret and apply legal statutes, provide legal advice and represent persons before courts, administrative agencies, tribunals, etc. The practice of law is regulated by each of the provinces. Admission to practice law in a particular province entails the completion of a Bachelor of Law degree at a recognized university, followed by the successful completion of law admission examinations and the completion of a period of training under the guidance of a practising lawyer.

Once admitted to practice law, a lawyer becomes a member of the Canadian Bar Association and his/her conduct is strictly regulated by the provincial Professional Body, which imposes a complex series of rules governing the dealings of member lawyers. These complex rules cover a wide range of issues which, inter alia, include: the requirement to maintain separate bank accounts representing counsel fees paid by clients (Trust Accounts), the relations between lawyer and client, the performing of mandates and the obligations of lawyers towards their clients. Non adherence to the rules of conduct is sanctionable and can result, depending on the nature of the infraction, in the temporary suspension or permanent removal of the lawyer's license.

Due to the increased incidence of non lawyers who calling themselves consultants, have been involved in wide ranging irregularities in the Canadian immigration field, various levels of government are currently reviewing proposals which would regulate the practice of advice-giving in the Canadian immigration
field.

While there have been some examples of lawyers who have been involved in various irregularities, the public at large and/or lesioned persons may seek direct and expedient recourse against such offending lawyers by laying formal complaints with the governing provincial Professional Bodies of Lawyers. In some cases, monetary compensation can be provided by the provincial Professional Bodies of Lawyers from a fund specifically established for such purpose.

All factors considered, it is more advantageous to engage the services of a trained and experienced immigration lawyer, rather than a consultant. This is especially the case at the present juncture, where the Canadian citizenship and immigration field is undergoing significant change in governing legislation, regulations and government policy which merits the insight of a trained Canadian immigration lawyer.

In Canada, this is furthest from the truth. Canada is a parliamentary democracy where the Government, the Legislature and the Judiciary act separately and independently from each other, and where ministers are collectively & individually responsible to Parliament. In the field of Citizenship & Immigration law, as in other areas of Administrative and Public law, the Legislature delegates the power to implement and apply the various laws and regulations which govern the people of Canada, to the Government. In many cases, the application of law entails the exercise of discretion. It is a fundamental principle of law that decisions rendered by public officials must be carried out in a scrupulously impartial fashion and devoid of any outside and distorting influencing factors. Indeed, it is a sanctionable offence in Canada for a) persons in a public position to hold out to the public that decisions are made in a manner which is other than impartial and b) for private individuals to claim that they can influence the use of discretion by a public official.

Recently, one well-known former immigration officer was the object of a National Headquarters memo, directing all visa offices abroad to follow standard channels of communication when dealing with former immigration officers. Prospective applicants are cautioned to contemplate against formalizing any mandate with an individual who, in any way, lays claim to providing an advantage on the basis of current or former ties to government.

4. Some consultants try to reassure me of their credentials by referring to their active membership in OPIC. What is OPIC and how should I perceive such assurances?

The Organization of Professional Immigration Consultants (OPIC) is an Ontario-based organization established in the early 1990s by a group of private, non lawyer consultants. Their primary objective was, and continues to be, to "regulate" and "legitimize" the practice of immigration consulting. A large number of its current membership comprise of former immigration officers who have departed from the public service to establish their own immigration consulting businesses.

Membership in OPIC can be procured by the payment of an annual membership fee, the approval of the executive board members, and the adherence to a set of so called loosely worded "rules of conduct", by the individual applicant. Unlike the regulated practice of law, there is no required professional or educational qualification for membership in OPIC.

Moreover, there are no requirements for members to maintain separate bank and trust accounts for the segregation of payments made by clients of OPIC members. As well, there is no meaningful recourse or compensatory measures provided by the organization to the public for offences committed by member consultants.

Canadian immigration laws and its attendant regulations provide for the extensive use of discretionary authority by immigration officers, which must be exercised in precise and well-defined limits. The effective assessment of a visa application and the timely issuance of visas often depends, in part, on the clear and concise written submissions addressing the various issues at hand.

For example, under the skilled worker category, are a number of occupations which are open to prospective immigrants to Canada, without the requirement to obtain an approved offer of employment. A positive selection decision entails the approval of an applicants' prior employment experience and the crediting of the appropriate number of units of assessment under the factor of employment experience, by the visa officer. Effective submissions often serve to ensure that the issues which must be taken into consideration are effectively highlighted, thereby enabling the allocation of a maximum number of units for a particular factor.

Under the Investor provisions an applicant must provide evidence of active experience in directing, controlling or managing a commercial enterprise. "Managing a commercial enterprise" takes on different meaning by individual visa officers. Whereas one officer may conclude that experience in managing a large department in a para-government organization may qualify, another officer may decide otherwise. Competent and experienced counsel in the field will exercise all appropriate means to ensure that the applicant's credentials are effectively presented.

The Canadian citizenship and immigration field is currently undergoing significant change from a legislative, procedural and a policy perspective. Many visa offices have their own post-specific processing requirements, which are not always transparent to an applicant. The favourable outcome of an application often depends on the recognition of these non-transparent factors and the effective and timely submission of an application with the post-specific supporting documentation which address the issues at hand.

In practical terms, experienced and committed legal counsel in the Canadian citizenship & immigration field will effectively prepare submissions which satisfactorily address the issues where discretion is a factor. During the processing of an application, experienced counsel will be able to effectively present to the visa office instances of irregularities in the assessment process, which most often will be corrected, thus avoiding the need to avail the use of the judicial system.

Most important, however, is that the decision to emigrate from one's country of origin is often highly consequential for the family in question. The retaining of legal counsel, in addition to ensuring that the benefits of this decision, will materialize into the desired result for the applicant and can likewise provide for useful guidance in the face of the ongoing issues of concern which come into play once the applicant has become a permanent resident.

The following are some of the issues which may be considered:

a) Specialization - The reality is that the landscape in this area of practice is currently undergoing continuous modification. A practitioner who is exclusively practicing in this area is more likely to be aware of the many issues at hand, than one who is a claimed master of many specialties.

b) Experience - Some immigration lawyers have been around for many years. While this factor, in itself, does not infer acquired expertise, experience can be one of many important factors in selecting an effective immigration lawyer.

c) Contract of engagement - This is an important element required by all provincial Professional Order of Lawyers. Prospective applicants should request from the lawyer, a detailed written contract outlining the duties and responsibilities of the contracting parties.

d) Money back guarantee - The more reputable practitioners have developed a level of expertise which enables them to stand behind the service they are offering and offer a full refund of the fees paid to the lawyer, where the visa application process is unsuccessful.

e) References - Effective and reputable counsel should be willing to provide current references of satisfied individuals who can objectively assess the past services rendered.

f) Internet - Some of the more reliable immigration lawyers in the field maintain an active value added World Wide Web site.

While it cannot be stated that adherence to the foregoing suggestions will ensure the engaging of effective legal counsel, prospective applicants who intend to formalize a mandate with legal counsel should be mindful of the various issues at hand. A thorough review of the important factors will likely however, minimize the incidence of disappointment.

"Let no man weakly conceive that just laws, and true policy, have any antipathy; for they are like the spirits and sinews, that one moves with the other."