Canada’s Immigration Department – Overstepping its Authority
By Author: Admin | March 24, 2012
The current (as of July 2011) form (numbered “IMM 5476”) that Canada’s immigration department requires to be submitted in many applications states as follows: “a representative is someone who has provided advice or guidance to you prior to submitting your application and/or someone who has your permission to conduct business on your behalf with CIC and CBSA.”
The IMM 5476 is thus required to be submitted even if you have consulted a Canadian immigration lawyer, or, indeed, if you have consulted anyone and received advice from them regarding an immigration application. The reason for this rule is to help eliminate the ‘ghost consultants’ – those unlicensed immigration consultants who for a significantly reduced fee, often fill out forms, often in a sloppy manner. This sloppy, price-discounted form filling often ends in a refused case, and also, leads to irreparable damage to a person who is seeking the Canadian government’s permission to enter Canada.
The problem with the wording used in the IMM 5476 is that captures those smart, prudent people, who are on a budget, and seek advice from a Canadian immigration lawyer; those people who seek only advice about an immigration matter, and then engage Canada’s immigration department un-represented after obtaining said advice.
Under Canadian law, every person has the right to seek advice from a lawyer in absolute confidence. The questions asked of the lawyer and the advice given by the lawyer to a client are confidential. Even the mere seeking of advice of an opinion from a lawyer is absolutely confidential. The current Immigration regulations, however, ignore this fact. The current Immigration regulations state as follows:
- (2) The application shall, unless otherwise provided by these Regulations
- (c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;
- (c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person; and
In other words, the current regulations purport to oblige applicants to disclose the names of any lawyer they consult in the course of preparing their application to the immigration department. I have often been consulted on spousal applications (which are characterized by very complicated forms) where the couple, armed with my advice subsequently file the application themselves. I have also been consulted for ‘second opinions’ by persons who had seen one Canadian immigration lawyer but were not fully comfortable with the advice provided by the first Canadian immigration lawyer. The above section can slap a person who did not declare their seeking advice with a finding of a “material misrepresentation”, or a rejection of the entire application on the basis of being incomplete. The misrepresentation results in a two year ban from Canada, and a significantly more difficult time re-entering Canada after the two years has expired.
Every legitimate Canadian immigration lawyer and consultant agrees with Canada’s immigration department about the blight that ghost consultants cause. However, the above regulation as it is written is too overreaching; it should be amended or interpreted to focus more on the real culprits – ghost consultants.
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