Ahuja v. Canada (Citizenship and Immigration), 2025 FC 33 : Judicial Review of Alleged Procedural Breach and Incomplete Counsel Actions

Introduction

The Federal Court reviewed the rejection of Harpreet Kaur Ahuja’s Canadian Experience Class permanent residence application as incomplete. The application included an expired medical examination for her non-accompanying spouse instead of a valid upfront examination. The applicant argued that her former counsel’s incompetence caused the rejection and amounted to a breach of natural justice. The Court dismissed judicial review because the cumulative test for ineffective assistance was not established and current counsel did not fully comply with the Federal Court’s protocol governing allegations against former representatives.

Key Principle

An allegation that former immigration counsel was incompetent requires proof that counsel’s conduct constituted incompetence or negligence, that a miscarriage of justice resulted because there was a reasonable probability of a different outcome, and that former counsel received a fair opportunity to respond. All three requirements must be met. Counsel’s conduct is presumed to fall within a broad range of reasonable professional assistance, and incompetence sufficient to breach natural justice will arise only in extraordinary circumstances. Current counsel must also strictly observe the Federal Court’s protocol by providing the former representative with the allegations, supporting evidence, the prescribed response period, the perfected record, and the order granting leave.

Background

The applicant received an invitation to apply for permanent residence through Express Entry. Her non-accompanying spouse’s previous medical examination had expired, but counsel submitted it with a request that IRCC advise if a new examination was necessary.

IRCC rejected the application as incomplete because a valid upfront medical examination for the non-accompanying spouse was required when the application was filed. A reconsideration request was also refused.

The applicant alleged that former counsel failed to advise her properly and submitted an incomplete application despite having time to obtain a new examination. Former counsel responded that the applicant knew an upfront examination was required, wanted the application filed urgently, and agreed to submit the expired examination with an explanation while arranging a new one.

Current counsel did not provide former counsel with all supporting evidence, gave seven rather than ten days to respond, and did not establish that the order granting leave was provided.

Court Findings

• Protocol Compliance Was Incomplete

The protocol exists to ensure fairness to former representatives facing potentially serious professional allegations. The failure to provide supporting evidence and the leave order undermined the fairness of the process.

• Different Result Was Reasonably Probable

The Court accepted that the application likely would not have been rejected as incomplete if a valid medical examination had been included.

• Incompetence Was Not Established

Submitting the expired examination with an explanation, while anticipating that an updated examination could follow, was not shown to fall clearly outside the range of reasonable professional judgment.

• Evidence Showed Awareness of the Requirement

Email correspondence indicated that the applicant and her employer knew that an upfront medical examination for the spouse was required.

• New Allegations Could Not Be Raised Without Notice

Claims made at the hearing that former counsel had lied about filing dates and webform submissions had not been put to former counsel and therefore could not be considered.

Outcome

The Federal Court dismissed the application for judicial review, finding that the applicant had not proven the required elements of counsel incompetence. No question was certified.

Case Citation:

Ahuja v. Canada (Citizenship and Immigration), 2025 FC 33 (CanLII)