Immigration Consultant Fraud in Canada: When a Consultant Has Ruined Your Case

Who may legally represent you

The Immigration and Refugee Protection Act (IRPA) restricts paid immigration help in s. 91(1). A person who knowingly gives that help, or offers to, for payment or other consideration, in connection with an application or proceeding under the Act is covered, whether the help is direct or indirect. Section 91(2) lists who falls outside the restriction (s. 91 also contains a few narrower exceptions, such as supervised students-at-law and entities acting under an agreement with the Government of Canada):

• A lawyer in good standing with a provincial law society, or a notary in good standing with the Chambre des notaires du Québec
• Another member in good standing of a provincial law society or of that Chambre, including a paralegal
• A licensed consultant who is a good-standing member of the College of Immigration and Citizenship Consultants (the "College")

Breaking the rule is an offence under s. 91(9). The maximum on conviction on indictment is a $200,000 fine or two years in prison, or both. On summary conviction it is a $40,000 fine or six months, or both. These figures are as of the date of this article; confirm the current amounts.

The rule is about work done "for consideration," meaning payment or something of value. IRCC's own guidance notes that anyone who is paid in any way counts as a paid representative and must be authorized. IRCC also says the representative form must be submitted even when the helper is unpaid.

The warning signs

IRCC's guidance on choosing a representative lists several cautions. Among them:

• A representative who says you do not need to give IRCC their information is wrong
• Be careful of anyone who will not answer your questions
• IRCC advises against signing blank forms or forms the applicant cannot read
• IRCC advises against leaving original documents or photos with a representative
• A paid representative should be able to show a written contract that lists the services and the fee
• Each payment should come with a signed receipt
• Promises that seem unrealistic call for caution, and IRCC says hiring a representative gives an application no special treatment
• A representative who encourages you to give false information is a serious red flag
• Some representatives say they are unpaid on the form and then ask for a fee later

IRCC also directs people to check whether a representative is authorized through its own page, and notes that most law societies offer an online check of whether a member is in good standing.

What actually goes wrong

What follows from a representative's conduct depends on the facts and on what the officer decides. Some examples of the kinds of problems that come up:

The uncomfortable law

Because of that, a reply to IRCC in this situation typically has two parts. One deals with the misrepresentation concern itself, using accurate facts and documents. The other may describe the circumstances, for example that the applicant never reviewed the form or that someone else controlled the account.

Circumstances are usually presented as evidence and supported with documents. Whether they affect the outcome depends on the file and is a question for a lawyer who has read it.

What a person in this position usually looks at

1. The file itself. Our guide to requesting the officer's file notes explains one way to see what was submitted and recorded under the applicant's name.
2. Who is on the file. IRCC explains that a representative can be changed or cancelled at any time by submitting the Use of a Representative form (IMM 5476) through its web form. For an unauthorized representative already on the file, IRCC says to update the application as soon as possible.
3. Records. Messages, receipts, transfers, contracts and web pages may matter later, so many people keep copies.
4. Pending IRCC letters. If IRCC has asked for a reply, our guide on replying to a fairness letter covers how those replies work.
5. Reporting. IRCC's complaint page says complaints about consultants go to the College, complaints about lawyers or notaries go to their law society or the Chambre, and a suspected fraud can be reported to IRCC through its web form and to the Canada Border Services Agency. IRCC adds that an unauthorized representative who breaks the law could be charged under IRPA, under the Citizenship Act, or under the Criminal Code.
6. Speaking to IRCC. What to say, and when, depends on the facts and on whether a misrepresentation finding is in play. A lawyer can advise first.

Recovering what you paid

Apart from the immigration file, a person may have civil options against a representative, depending on the facts and on what was agreed. Whether it is worth pursuing depends on the amount involved, the evidence of what was agreed and paid, and whether the other person can actually pay a judgment. A lawyer can advise on which court or process fits, and on the monetary limits that apply to it.

A complaint to a regulator is a separate route. IRCC's page names the College and the law societies as the bodies that receive complaints about their members. IRCC's page does not say whether a complaint can lead to repayment.