The Federal Court has ordered Ottawa to reconsider dozens of immigration applications from rejected applicants from China who failed to disclose they hired the same unregistered consulting firm.
In a decision released last week, Justice Richard Southcott ruled in favour of the 57 former clients of Beijing-based Flyabroad, saying immigration officials shouldn’t have rejected them without giving each a fair opportunity to respond to the concerns raised.
“Immigration officials should crack down on ghost consultants, but what happened in this case is the government actually went after the clients,” said Wennie Lee, one of six lawyers for the applicants, who applied for permanent residence under the federal skilled workers class.
“The whole point of the legislation (requiring disclosure) is to protect these individuals from falling into the traps of the ghost consultants. The court found it problematic how the government proceeded with this case.”
In what was believed to be Canada’s biggest attempt to crack down on unlicensed consultants, sometimes called “ghost” consultants, operating abroad, Ottawa rejected en masse immigration applications filed from the address of Flyabroad over the last two years on the grounds of “misrepresentation.”
None of the applicants declared the use of Flyabroad in the Immigration Department’s required authorization form, but their applications all included the return address belonging to the company and had other similarities, such as the labelling and style of some documents.
In June 2015, the applicants received a “procedural fairness letter” from the department, accusing them of using the services of an unauthorized immigration representative. In response, some of the clients claimed they hired the company only for its translation and clerical services, but not immigration advice.
In an email to the Star, Flyabroad spokesperson Zhang Hongxia said she felt sorry for what her former clients had endured because of what she called unruliness at the Immigration Department.
“The immigration officers did not treat applicants respectfully or quote immigration law appropriately. Their attitude was really disappointing,” Zhang wrote.
“I felt sorry for them since they themselves endured so much, costing so much both in human capital and to Canadian taxpayers. Everyone is a loser except for the lawyers.”
In a previous note to the Star, Zhang said the services Flyabroad provides include translation, document preparation and notarization that are legal in Canada and China.
Under Canadian laws, only lawyers in good standing and immigration consultants licensed with ICCRC, a national professional regulatory body for consultants, can offer immigration advice for a fee.
A couple of applicants claimed in their defence they had “fallen prey to the fraudulent activities of a ghost consultant” and provided officials with a copy of the instructions and the template, as well as the contract that they signed with Flyabroad.
Based on the applicants’ response to the fairness letters, officials at the Canadian visa post in Hong Kong concluded it’s more than likely the applicants misrepresented themselves by claiming they hired Flyabroad for translation and clerical help. Hence, each of the applicants was deemed inadmissible to Canada for five years.
“Regardless of how closely a particular applicant’s procedural fairness response may mirror the template, or how compelling or untenable the officer’s determination that a particular applicant misrepresented his or her relationship with Flyabroad . . . each of the applicants was entitled to comment on the officer’s concerns before that determination and the inadmissibility finding were made,” wrote Justice Southcott.
Southcott did not cite any wrongdoing on the part of Flyabroad.
Neither did the judge clarify whether paid translation and courier services amount to providing immigration advice, or if applicants are obliged to disclose the use of ghost consultants.
However, he did emphasize the prohibition against unauthorized consultants is an important matter and warned that an applicant using a ghost consultant “has an obligation to answer these inquiries truthfully.”
Lawyer Matthew Jeffery, who represented some of the applicants, hoped immigration officials would not take the court decision as an invitation to pester applicants with the question of whether they used a ghost consultant and reject their applications if they are deemed not forthright.
“Since the immigration minister’s own lawyers conceded that there is no obligation for an applicant to disclose this information, revealing that information should have no impact on the application,” said Jeffery. “But the concern remains that Justice Southcott’s decision does not make that sufficiently clear.”
