Client says ex-counsel did not properly advise them of proceeding’s purpose
The Federal Court has granted a motion to stay the deportation of an applicant alleging that they would have presented evidence of their queer sexual orientation to the pre-removal risk assessment (PRRA) officer, if not for their former counsel’s incompetence.
The applicant, who used they/them pronouns, was a Nigerian citizen who came to Canada as a student and received an exclusion order due to overstaying. The case of Osuji v. Canada (Citizenship and Immigration), 2025 FC 1207, arose after they applied for a PRRA under s. 112(1) of the Immigration and Refugee Protection Act, 2001.
On May 29, the PRRA officer refused the application. The applicant, ordered to report for removal from Canada on July 8, filed an application for leave and judicial review of the refusal decision. The applicant then sought to stay the removal until this application’s final determination.
First, the applicant claimed that Nigeria persecuted people of diverse sexual orientation, as the country conditions documents showed. According to the applicant, the Immigration, Refugees, and Citizenship Canada’s refusal to reconsider their case would lead to their deportation to a country that posed a serious possibility of persecution due to their queer sexual orientation.
Next, the applicant alleged that they experienced mental health issues when they were applying for a PRRA and failed to inform their former counsel about their sexual orientation since the lawyer did not explain the context and purpose of a PRRA proceeding, which revolved around possible deportation risks.
The applicant noted that their ex-counsel gave general instructions and urged them and their husband to draft letters explaining their personal circumstances, reasons to remain in Canada, and any supporting information strengthening their position.
The applicant argued that their former counsel’s incompetence amounted to procedural unfairness and prevented the PRRA officer from having the information needed to determine the risks of returning the applicant to Nigeria.
Removal stayed
The Federal Court agreed to stay the applicant’s removal from Canada until the final determination of their underlying application for leave and judicial review. The court ruled that the applicant fulfilled the tripartite test to stay the removal.
First, the court held that the applicant established the existence of a serious issue when they alleged incompetence on the part of their former lawyer as the primary issue of the proceeding.
The court explained that the allegations of their ex-counsel’s incompetence were not frivolous, vexatious, or meritless, given that the applicant deserved the opportunity to raise the known risk factor in their PRRA application.
Second, the court decided that the applicant would suffer irreparable harm if they lost the right to pursue a meaningful remedy in the underlying proceeding and had to move to Nigeria, where sexual minorities faced a serious risk of persecution, as the evidence on the country revealed.
The court found a rational connection between the serious question for trial and the potential irreparable harm. Specifically, the court saw a direct link between counsel’s alleged incompetence, resulting in the PRRA ruling’s failure to address the applicant’s sexual orientation, and the possibility of persecution.
Third, the court concluded that the balance of convenience weighed in the applicant’s favour. The court noted that the only potential inconvenience to the citizenship and immigration minister would be the delay of the applicant’s scheduled deportation from Canada.
On the other hand, the court identified the possible prejudice to the applicant as the significant and irreparable loss of their right to an effective remedy, which outweighed the public interest in timely implementing the removal order. The court added that the public interest did not support deportation to a country where a person could experience persecution.
