Federal Court

Administrative Law

Incompetent representation led to violation of procedural fairness

Foreign national was 73-year-old citizen of El Salvador who had three children, two of whom were Canadian citizens who fled El Salvador in 1980s, and third who fled country in 2010 and was granted refugee protection in Canada in 2012. Foreign national came to Canada in 2011, on visitor’s visa. In 2012, foreign national filed unsuccessful Humanitarian and Compassionate (H&C) application under s. 25(1) of Immigration and Refugee Protection Act (Can.), as means of obtaining permanent residence in Canada. Application was prepared using services of immigration consultant who was intervener in judicial review application. Foreign national alleged that incompetence of immigration consultant in omitting crucial evidence regarding four key areas of her case led to failure of meritorious H&C application. Application granted; matter sent back to CIC for redetermination. Court’s role in judicial review context not to take place of professional regulator. Court must determine whether omissions resulted in prejudice to foreign national without which, on basis of reasonable probability, outcome would have been different. Tripartite test satisfied. Incompetent representation led to violation of procedural fairness. It was beyond question that four missing items, had they been jointly included in submissions, could well have led to different H&C result.

Guadron v. Canada (Minister of Citizenship and Immigration) (Nov. 19, 2014, F.C., Alan Diner J., File No. IMM-1484-13) 247 A.C.W.S. (3d) 648.

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