Day: June 27, 2018

Why IRCC Should Pay Attention to the B.C. Small Claims Case Li v. Dong 2017 BCPC 285 – Re: Custodian and Unauthorized Immigration Practice

Background of the Case

Li v. Dong, 2017 BCPC 285 (CanLII), <http://canlii.ca/t/h6ftb>  was a five-day small claims matter between two educational agents, Ms. Chunmei LI and Mr. DONG.

Without delving too much into the myriad of messy facts – Mr. Dong was an educational agent and Ms. Li was a sub-agent. They had primarily verbal and one written agreement between them to split the cost of recruitment fees and percentage of tuition fees for minor students recruited from China.

Among part of this play was the fact Ms. Li charged students (who were from her own English language institute in China) $5000 to $6000 for “supervisory services” including custodianship. Ms. Li (new to Canada as a PR) wanted to better understand the educational market in Canada and therefore assisted Mr. Dong for various amounts per school. Some schools offered their own student services/custodianship services but this did not dissuade Ms. Li from charging her pretty penny.

Mr. Dong also benefited by charging CDN $300 for a custodian notarize fee from Ms. Li and CDN $1200 for a custodian fee of the CDN $5000 wanted to charge the students she referred to Mr. Dong.

Adding another layer to the mix, was Ms. Cindy Lii, who testified on behalf of Mr. Dong at Small Claims Court, discussed the fact she prepared documents for student visas and school applications for the students. She would refer students to Mr. Dong and also collect a cut [side note: there is no one last name Lii on the ICCRC registry]. Ms. Lii also took fees from Ms. Li to help prepare study permit applications.

Why should IRCC care about this?

From my perspective, the current rules around minor children – where, unlike with Universities there is no #DLI or sense that a student has to meet certain bona fide requirements in order to qualify – is broken. With no regulation of educational consultants and the cross-border movement of children and money, the natural consequence is the type of taking advantage of (I would deem it exploitative to call it mildly) that is ultimately being done at the expense of young children and their unbeknownst parents.

In the same way that a recruiter cannot charge both the employer and the employee, somehow in the business of minor students and educational agents, we have lost all control. This same problem affects post-secondary students but at least there are some safeguards and students themselves can advocate for themselves in a complaint.

Why are educational agents charging funds to have an immigration (custodianship document) signed?

Given notaries are all able to sign them (they don’t require any s.91 rep) – who is keeping track?

How is someone who is presumably not a designated immigration representative able to not only charge students to do visas, but charge other agents to do visas on their behalf and simultaneously collect funds from the very schools these students are obtaining visas for through agents?

I actually wrote this in part of a s.44 submission to CBSA not so long ago – but the fact is these agents are being inherently authorized by allowing to practice (without investigation by authorities), given business licenses, and provided advertisement space. How much fault can you really pin on the end user when 90% of what is provided in your own language in front of you is falsely claiming to be legitimate.

Why are schools not being regulated in the amounts they can charge for services and what these services are directed at?

We talk so much about big money – and rightfully so – through casinos and real estate, but the impact of money being washed through innocent children in the name of the education should raise some sort of moral conundrum that IRCC would want to step in on.

I would suggest IRCC make major clarifications to the custodianship process and indeed require clear third-party legal advice prior to accepting the form.

To go a step further, I would suggest that with the looming influx of minor students that will become university students and later put upward pressure on our economic immigration system, that schools be issued quotas for minor international students consistent with a prescribed ratio – based on Canadian students, with an emphasis on schools outside metropolitan areas that may require economic assistance or greater diversity.

Schools should also require designations in order to ensure minimum standards are met prior to enrolling minor international students. Private Schools, especially should have to provide some sort of compliance update to the Ministry.

Whether the Provincial/Federal Government knows it or not – education has become an exportable commodity. Therefore just like goods require taxes, tariffs, and customs law – so does education and especially international education. I think the Governments should reach out to one another and strike up a working group. I know I’d sign up given the stories I have been hearing and the type of preventable catastrophes that are looming around the corner.

Hopefully IRCC puts focus on this issue as I definitely see the snowball and these type of cases increasing without clearer guidelines and stronger deterrents.

Lessons from Losses – Importance of Good Interpretation in Immigration

I recently was counsel on a multi-layered case named Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 (CanLII), <http://canlii.ca/t/hs2j6>

In Zhang, the client (my client) attended an in-Canada spousal  interview with former counsel and as well with an interpreter who former counsel had assumed was certified, but was actually not.  In-Canada spousal interview have a heightened level of procedural fairness. Only a few cases to through to this interview stage. Without appeal rights, this interview serves as the final decision, and often with clients that have status issues, a refusal could be a trigger point for enforcement and possibly long-term separation.

The Officer in the matter decided to proceed, even know the interpreter was unqualified. This lack of qualification was not shared with the Applicant, only the Sponsor, who himself conducted his portion in English. For the Applicant, the Officer asked merely if she “understood the intepreter.”

While Justice Phelan did not rule our way, I found it interesting how this case and my recent experiences with my new Firm have really opened up my eyes to interpretation and the importance of certified interpretation.

Interpreters can truly make and break cases. Even for something as seemingly simple as a client consultation (and where you yourself may have a working understanding of the language), having a certified interpreter present is crucial.  Even where an assistant may be fluent in a language, having an independent certified interpreter available to provide accurate accounts and swear required affidavits. I have seen in too many cases the haphazard signing of affidavits in the English language where the affiviant has little clue of the content.

The case law around interpretation, from my preparation on the file, is very scattered. I won’t go into too much detail here, but it appears that it is only in cases where Tribunals or Government’s are providing the interpreter, where the interpretation is not clear and contemporaneous, and where the Applicant attempts to draw this to the attention at the earliest possible time that procedural fairness/Charter rights are ultimately triggered.

In Huang, the Federal Court set out the requirement as follows:

[8]                The Applicant has a right, under section 14 of the Charter, to continuous, precise, competent, impartial and contemporaneous interpretation. The Applicant is not required to show that he has suffered actual prejudice as a result of the breach of the standard of interpretation in order for this Court to interfere with the decision of the Board (Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 435 (QL) ; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 ).

Huang v. Canada 2003 FCT 326 at para 8

However, this is contrasted by another decision, Baloul, that applies a much higher standard for mistakes made by the Applicant (any by extension, their counsel) themselves:

[22]… The applicant had sufficient time to obtain an interpreter, but chose not to. The risks associated with this choice were spelled out in unequivocal terms and the applicant chose to assume these risks. I would add that the onus placed on the applicant to provide an interpreter has been upheld by this Court (Kazi v Canada (Minister of Citizenship and Immigration), 2002 FCT 733(CanLII) at paras 16 -18, [2002] FCJ 969).

[23]  When it became apparent the applicant was having difficulties understanding and answering the immigration officer’s questions, for the benefit of the applicant and though she was not required to, the officer offered to invite a colleague to interpret. The applicant agreed to this suggestion of her own volition and cannot now question the quality of this interpretation when she was well aware of the consequences of not arranging for her own professional interpreter. Furthermore, it is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Oei v Canada (Minister of Citizenship and Immigration), 2002 FCT 466 (CanLII) at paras 40 and 42, [2002] FCJ 600; Kompanets v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15377 (FC), [2000] FCJ 726 at para 9, 196 FTR 61; which the applicant did not do in this case.

I don’t change my own legal position (that I presented) that this requirement should run both ways. For an Applicant who does not speak English and a Counsel who does not speak the Applicant’s first language, interpretation is a complicated exchange. I do believe that there needs to be a clear instruction to IRCC Officers that if the interpreter is not qualified and upon confirmation that this was not a bad faith error, that the Sponsor and Applicant should be fully advised of the fact and asked to sign a document either confirming a new appointment or waiving the requirement for certified interpretation.

This level of heightened procedural fairness is consistent with IRCC’s position at the Port of Entry.

OP4 of IRCC’s Port of Entry Manual states:

A border services officer who is using a non-accredited interpreter to conduct an examination should suspend the examination if it becomes apparent that the person may be inadmissible. The examination can be continued once a competent interpreter is available. This is important for the following reasons:

• When making a decision on admissibility, the border services officer needs a reliable and trustworthy interpreter in order to be sure that information provided by the client is accurately translated. Inaccurate translation could result in a decision based on misinformation, which is detrimental to the person. This would constitute a breach of natural justice.
• Information obtained at examination is often used as evidence in admissibility hearings and, less frequently, in criminal prosecutions. If a competent interpreter is not used, the evidence can be discredited or rendered inadmissible.
• All immigration decisions relating to admissibility are subject to judicial review by the Federal Court. The Federal Court reviews the fairness of the process leading to the decision and will strike down any decision based on evidence obtained through an interpreter whose competency is in doubt.

Not ironically, in a June 2018 update not long after my case was published, IRCC put an additional section regarding complaints about an interpeter.