Who can “advise” on immigration law under s. 91(1) of Immigration Refugee Protection Regulation?

Since it was enacted on June 30th, 2011, section 91(1) of Immigration Refuge Protection Act (IRPA) limits who can give immigration legal advice – those with proper legal licence as a lawyer or legal consultant. 

This section still outlines those individuals/groups who cannot give legal advice for immigration matters, such as friends, relatives and non-profit organizations.  However, it does not define either (1) “advice” or (2) “consideration”. 

What is “advice”?

  • If someone gives a printout from the Citizenship and Immigration Canada website, such as an application form, is it a legal advice under this section?
  • If he “chooses” that application for the third party, it may be considered as legal advice.
  • If a human resource staff at a company is “giving telephone instruction on what to say at the border” when a new employee comes in from US, it is a legal advice under this section.

What if an international student adviser “uploads” an extension of study permit for a foreign student who does not have an access to an internet, it is considered  legal advice?  The word “Advice” is not defined, but if the act including oral or written communication has any component of choosing or making judgment under IRPA, it is more likely than not giving a legal advice under IRPA, contrary to s.95(1).

What is “consideration”, then?

legal rightsTypically, consideration is a monetary sum to be paid in exchange for goods or services.  Hence, a HR staff in a company or an international student adviser may argue that they do not receive any consideration from a new foreign worker or a foreign student in the above situation.  However, an HR staff is paid by a company to look after having a new foreign worker and an international student adviser is paid by the educational institution.  In fact, both of them may even be in a bigger dilemma, if their employer, being a private company or an educational institution, finds a conflict of interest with a foreign worker or a foreign student, they now have “served” two masters – employer/educational institution v. foreign worker/foreign student.

Finally, this section also carries a significant penalty including a fine in the amount of no more than $100,000.00 for anyone who is convicted on indictment under this section.

If you have any individual questions or concerns, please contact our office for more customized consultation for your unique situation.  Please note that this posting is for general information only and is not to be considered binding or official legal counsel since situations will vary and can be complicated. The content in this post is current as of the day of entry. Due to the changing nature of Immigration law, the information in this entry may or may not still be applicable.

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