Ruling says ex-counsel failed to file submissions on hardship to be faced in China or Argentina
Canada’s Federal Court has remitted a permanent residence application for a redetermination upon finding that the conduct of the applicants’ former counsel fell below the standard of reasonable professional judgment and assistance and compromised the fairness of the adjudicative process.
In Lin v. Canada (Citizenship and Immigration), 2025 FC 1344, the applicants were citizens of China who hired a registered immigration consultant in October 2022 to prepare a permanent residence application on humanitarian and compassionate grounds (H&C) under s. 25(1) of the Immigration and Refugee Protection Act, 2001 (IRPA).
Their former counsel filed a November 2021 statutory declaration of the principal applicant’s spouse and documents relevant to their establishment in Canada and the best interests of her two dependent children, who were the dependent applicants.
In August 2024, a senior immigration officer denied the H&C application upon determining that the applicants failed to prove that their circumstances justified a s. 25(1) exemption.
The applicants requested a judicial review of the officer’s decision. They alleged their former counsel provided ineffective assistance and incompetent representation, leading to a miscarriage of justice. They claimed that he failed to file evidence or submissions addressing the hardship they would face upon a return to China or Argentina.
The Federal Court discussed the three-part test applicable to allegations of ineffective assistance of counsel made in a judicial review application under the IRPA.
First, the applicants should establish that their former counsel received notice of and a reasonable opportunity to respond to the allegations, in line with the court’s protocol on allegations against authorized representatives in citizenship, immigration, and refugee cases.
Second, the applicants should demonstrate the performance component, specifically that their former counsel was negligent or incompetent.
Third, the applicants should show the prejudice component, namely that their former counsel’s incompetence resulted in a miscarriage of justice.
Ineffective assistance found
The Federal Court granted the judicial review application, remitted the matter to another officer for a redetermination, and gave the applicants an opportunity to submit new evidence and submissions.
Applying the first part of the tripartite test, the court ruled that the applicants’ former counsel received notice of the allegations and an opportunity to respond.
The court accepted that the applicants’ current counsel did not strictly comply with the protocol because she failed to notify ex-counsel before filing the application for leave and judicial review in August 2024 and only gave notice in October 2024, a week before perfecting the application.
However, the court decided to exercise its discretion and address the allegations of ineffective counsel on their merits. The court noted that former counsel conceded his incompetence and negligence.
Second, the court held that the conduct of the applicants’ former counsel fell below the expected standard of reasonable professional judgment.
The court noted that the applicants acknowledged that the November 2021 statutory declaration generally referred to “hardships and plight in Argentina” and claimed that the dependent applicants “suffered a lot in China.”
However, the court said former counsel failed his clients by not filing detailed evidence or submissions specifically tackling the hardship the applicants would face in China or Argentina.
Third, the court decided that the applicants needed a fresh determination of their H&C application because their former counsel’s ineffective representation deprived them of a fair opportunity to present their case, led to a much weaker case, compromised the fairness of the decision-making process, and ultimately caused a miscarriage of justice.
The court said the officer would have considered and weighed the evidence and submissions on hardship in the global assessment of the H&C application if the applicants had provided such. The court noted that hardship was a central pillar of an H&C application.
