The Federal
Court reviewed the refusal of permanent residence applications made by a mother
and her three children, who were dependants of a Canadian PR and protected
person. The applications were refused after the family failed to respond to a
procedural fairness letter requesting DNA testing. The Court granted judicial
review because their former immigration consultant’s negligence deprived them
of the opportunity to complete the testing and delayed their knowledge of the
refusal for several years.
Key
Principle
Ineffective representation may amount to a breach of natural justice
where the applicant proves both deficient professional performance and
resulting prejudice. Where a representative fails to communicate a procedural
fairness request, prevents applicants from responding to the sole concern
underlying a refusal, and fails to notify them of the refusal itself, the
resulting miscarriage of justice may justify setting the decision aside.
Background
The
applicants applied for PR together with the principal applicant’s spouse and
father of the children, who later became a Canadian PR as a protected person.
IRCC questioned whether the claimed family relationships were established and
offered the applicants an opportunity to complete DNA testing. No response was
received, and the applications were refused in 2017. The applicants maintained
that they only learned of the refusals in January 2022.
Court
Findings
• Former
Consultant Had a Sufficient Opportunity to Respond
Although
current counsel did not strictly follow the Court’s protocol for allegations
against former representatives before commencing judicial review, the Court
accepted that exceptional circumstances justified the timing. The consultant
was later notified of the allegations and given a reasonable opportunity to
respond, satisfying the protocol in substance.
•
Consultant’s Conduct Fell Below Professional Standards
The
applicants relied on the consultant to communicate with IRCC regarding their PR
applications. The consultant failed to advise IRCC that the applicants were
willing to undergo DNA testing and failed to ensure compliance with the
procedural fairness request. The Court found this conduct fell below the
standard of reasonable professional assistance.
•
Consultant’s Negligence Caused Serious Prejudice
The failure
to respond to the DNA request was the sole reason the PR applications were
refused. The consultant’s conduct therefore deprived the applicants of an
opportunity to answer the officer’s concern and potentially establish their
family relationship through objective testing.
• Failure to
Communicate the Refusal Also Compromised Judicial Review Rights
The
consultant also failed to notify the applicants that their applications had
been refused. This prevented them from promptly pursuing judicial review and
contributed to an almost five-year delay before the refusal was challenged. The
Court found this further supported a miscarriage of justice.
• Evidence
Supported the Applicants’ Lack of Knowledge
The Court
accepted that the family did not know about the 2017 refusal until January
2022. The Canadian sponsor had lost access to the Yahoo email account
originally used and continued contacting IRCC for updates, conduct inconsistent
with knowledge that the applications had already been refused.
•
Redetermination Allowed the Core Issue to Be Properly Tested
The Court
noted that the practical result of granting judicial review would be
straightforward: the applicants could complete DNA testing with the Canadian
sponsor. The results could then objectively confirm or disprove the claimed
family relationship, subject to any other admissibility concerns.
Outcome
The Federal
Court granted judicial review because the consultant’s negligence resulted in a
miscarriage of justice. No question was certified and no costs were awarded.
Case
Citation:
Devi v. Canada (Citizenship and Immigration), 2023 FC 328 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
