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BlogChoosing an Immigration Professional: Responsibilities and Remedies

31 July 2023

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What can you do when things go wrong with your immigration representative?

The Canadian immigration law landscape has changed dramatically over the past few years. New programs and guidelines are being introduced at a fast and furious pace and many of the old rules that govern immigration processing have either been amended or discarded entirely. More than ever it is crucial to recognize the important role that immigration representatives play in our immigration system to advise clients on suitable immigration strategies based on the current legal landscape and to represent them in their applications and in their immigration hearings.

At our immigration law firm, we have regularly cautioned the public against hiring unauthorized and unscrupulous immigration representatives. Each client has a responsibility to ensure that their immigration representative is licensed and to play an active role in reviewing their own immigration matters because clients are fully accountable for all the work that is done on their behalf. Failure to do so can have serious consequences, including a refusal of your application and a five-year ban from making any future immigration application to Canada.  Please refer to our previous blogs on misrepresentation and the importance of choosing a licensed representative:

We often meet with clients who have received poor advice and service and they want to know what can be done about their situation. The sooner you raise these concerns the better. There are many cases where time is of the essence and it can be difficult, if not impossible, to correct your immigration issues without adequate time. Ultimately, it is your decision whether you wish to change your representation, which you can do at any time, and there are at least three options for you to address your complaints regarding the representation that you have received:

File a complaint with their licensing body

Under Canadian immigration law, only licensed representatives may represent clients in immigration matters for a fee. Licensed representatives include immigration lawyers who are subject to oversight by Canadian provincial and territorial law societies, as well as immigration consultants who are subject to oversight by the College of Immigration and Citizenship Consultants (CICC).

All licensed representatives are subject to codes of conduct that require them to act professionally and competently with respect to their representation of your case. These codes set standards on many aspects of representation, including when and how frequently your representative should communicate with you, and they establish standards of competency when representing your immigration matter.

When filing a complaint with a licensing body, it is important to note that their primary role is to review the conduct of the licensed representative. Their main mission is to protect the public by holding licensed representatives accountable to professional standards of work.  As such, licensing bodies have the power to order that the representative undergo remedial training, for instance, and they may even suspend or revoke a license in the most egregious cases. However, they are not generally in the business of deciding monetary issues such as whether you should be entitled to any refunds for services rendered or to assess whether you have suffered financial losses because of poor or incompetent representation.

File a court claim

For concerns that are primarily monetary in nature, clients should seek legal advice to determine if they have a valid court claim for the fees they have paid and/or for professional negligence or breach of contract against a licensed representative.

Licensed representatives are professionals who owe a responsibility to clients to perform their work in a competent and ethical manner. In legal terminology, we refer to this responsibility as a “duty of care” to you as a client. In immigration matters where the stakes are high, licensed representatives have been found to owe their clients a duty of care because they have advanced knowledge about immigration matters that are not generally known to the public. However, in order for clients to be financially compensated they must establish in court that the conduct of the licensed representative fell below the professional standard required and that they suffered a loss as a result of this breach.  Financial losses may include, for instance, the loss of employment income due to poor advice or late application filings.

Ultimately, court claims of this nature are highly complicated and should be pursued with adequate legal advice and after careful consideration of the time and expense that will be involved in pursuing the claim in a court of law.

Overturn a decision in Federal Court

Most clients who have suffered due to poor representation are first and foremost concerned with correcting their immigration legal issues. In many cases, the clients may have already exhausted many legal options by the time they seek legal advice from another party. In such cases, the final forum to challenge immigration decisions rests with the Federal Court and more and more we are seeing the Court intervene to assist clients who have fallen victim to poor representation.

For example, in a 2021 decision called “Xiao”, the Federal Court intervened to overturn a decision rendered by the Immigration Appeal Division (IAD). The case involved incompetent representation by an immigration consultant who failed to submit an application to sponsor the client’s daughter before she turned 22 years old and became ineligible to be sponsored due to her age. To make matters worse, the consultant did not advise the client about this situation until much later and then agreed to represent the client at the IAD appeal of the sponsorship application refusal, which placed him in a position of having to defend his own incompetence.

The Court in Xiao made the following key findings:

  • It was incompetent for the consultant not to file the sponsorship application on time and unethical to mislead the client about when the application was filed.
  • The consultant’s incompetence led to a miscarriage of justice because the client was denied a fair opportunity to seek proper legal advice and to try to remedy the mistake of the late filing.

As a result, the Court ordered the IAD to reopen the client’s appeal on grounds that the client was denied fairness in the IAD appeal.

In the current immigration landscape where changes occur rapidly and often with little notice, it is crucial to work with a licensed representative that you are comfortable with and trust to provide quality service. If you are thinking about hiring the services of a licensed representative then you should take the time to consult with one or more representatives about your facts and carefully consider your options. Your decision to hire a licensed representative is consequential and may make the difference between having a smooth immigration experience and a tumultuous and costly one.

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Sas and Ing Immigration Law Centre LLP

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