Reference no: EM133638420
Case: Sepideh has been an immigration consultant for the past five years. Before starting her own practice, she worked in a law firm assisting with refugee files and family class applications. She now holds the L3 Class of Licence (RCIC-IRB) and practices mainly in the area of refugee law and family class.
One of Sepideh's clients is Ornela, whom she represented before the Refugee Protection Division and the Refugee Appeal Division. Ornela was ultimately recognized as a Convention Refugee and a person in need of protection. With Sepideh's help, she then obtained permanent residence and eventually became a Canadian citizen.
As a result, Ornela holds Sepideh in very high regard and has referred many other clients to her.
One day Ornela called Sepideh with the exciting news that she had married Bujar, an Albanian citizen living in Albania and now wanted to sponsor him. She felt confident enough to do the spousal sponsorship application herself, but wondered if Sepideh could check her application to make sure that everything was done correctly.
Sepideh agreed and thought she could probably do it in a single consultation meeting. If Ornela could bring in her documents and her laptop, they could work together in Ornela's portal to go through her online application. Bujar could attend by Zoom.
Sepideh decided not to charge Ornela for this consultation in recognition of their longstanding relationship. She entered into a written consultation agreement with Ornela and Bujar as required under section 23 of the Code. The purpose and scope of the consultation was to "Advise the parties on their family class sponsorship application".
While looking at the form called Schedule A-Background Declaration regarding Bujar's background during the consultation, Sepideh pointed out that the question about criminal charges had not been answered. The couple indicated they were not sure about it, so wanted Sepideh's advice.
Bujar had been convicted of armed robbery many years ago as a young adult and served six years in jail. The couple assured Sepideh that Bujar completed his sentence fully more than 12 years ago and had been living a very stable lifestyle ever since.
Sepideh was not comfortable advising on this since she did not practice in the area of criminal inadmissibility. She told the couple she was unable to assist with this aspect of their file as she did not have much experience in criminal matters. The couple, especially Ornela, insisted they had full confidence in Sepideh, pointing to her excellent work for Ornela over many years, and pleaded with Sepideh to just give them her best advice for dealing with it.
Under pressure and not wanting to let the clients down, Sepideh agreed to tell the couple what she knew about this part of the system. Plus, she would continue to provide her advice for free.
After doing a bit of a research, Sepideh advised them to answer "Yes" to the criminal question and provide all the details of the conviction and sentence. She told them, to the best of her knowledge, Bujar would fit under the "deemed rehabilitation" rule because more than ten years had passed since his sentence was completed, meaning he would be admissible without needing to make an application for Rehabilitation Approval. That was a good thing, Sepideh said, because that application is lengthy and costly and adds many months to the processing.
The couple took this advice and submitted their application accordingly.
Six months later, they received a letter from IRCC. The officer had reasonable grounds to believe that Bujar was inadmissible due to serious criminality. He would need to submit an Application for Rehabilitation Approval and pay the $1000 fee. Sepideh believed the officer must be mistaken and assured Ornela that, because more than 10 years had passed from the completion of the sentence, Bujar should be deemed to be automatically rehabilitated and they should write the letter of explanation themselves and note this fact.
The couple did so. Two months later, they received a refusal letter from IRCC noting Bujar was inadmissible for reasons of serious criminality under section 36(1) of IRPA.
Sepideh was surprised and referred the couple to her colleague Danika who specialized in criminal inadmissibility. Danika told them IRCC was correct and that Bujar was indeed inadmissible for serious criminality. The deemed rehabilitation provision only applies to an offence of regular criminality and not an offence of serious criminality. Therefore, an application for Rehabilitation Approval would be necessary.
Ornela was very upset over the bad advice, months of lost time, extra costs and more delays. She sent Sepideh a nasty email, very angry that she would now be separated from her husband for many more months, which was entirely Sepideh's fault. As a result, she planned to make a complaint to the College.
Briefly explain the scope of the licence and scope of practice relevant to this scenario.
Is the fact that Sepideh did not charge the clients any fees relevant? Briefly explain with reference to the Code.
Section 19(2)(a) of the Code defines what it means to be competent to handle a matter (experience, knowledge, etc.). It is often necessary for a consultant to assess their ability to meet this standard in a given situation. At what point in this scenario was it necessary for Sepideh to assess her competence to deal with criminal inadmissibility issues?
What do you think are the most relevant factors for Sepideh to consider in deciding whether she was competent to advise the clients on the criminal record and how those factors would apply in this scenario?
What were Sepideh's options under the Code and what was the first point at which those options arose? What do you think was her best option at that time, and why?
Does Ornela have grounds to file a complaint to the College about Sepideh's advice? Why or why not?