The
Federal Court reviewed a decision finding a South Korean work permit applicant
inadmissible for misrepresentation after she failed to disclose a pending
criminal charge in Canada on her work permit application. The Court granted
judicial review, concluding that the omission resulted from incompetent legal
representation, which deprived the applicant of procedural fairness and created
a reasonable probability that the outcome would have been different.
Key
Principle
A
finding of misrepresentation will be set aside where an applicant establishes
that ineffective assistance of counsel breached procedural fairness, and there
is a reasonable probability that, but for counsel’s incompetence, the adverse
decision would not have been made.
Background
Yun
Hwangbo, a citizen of South Korea, applied for a Canadian work permit after
being charged with a criminal offence in Canada. The application incorrectly
answered “No” to the question asking whether she had ever been
charged with a criminal offence. After receiving a procedural fairness letter,
IRCC found her inadmissible for misrepresentation under section 40 of the Immigration
and Refugee Protection Act, resulting in a five-year period of
inadmissibility. Ms. Hwangbo argued that her former immigration consultant
failed to properly advise her regarding disclosure of the criminal charge and
the need to update her application.
Court
Findings
- Ineffective Assistance of Counsel Established
The Court accepted the applicant’s sworn evidence
that she informed her representative about her criminal charge during a phone
call months before IRCC issued the procedural fairness letter. Instead of
advising her to disclose the information or amend the application, the
representative incorrectly advised that the charge was irrelevant to the work
permit application. The Court held that this advice fell below the standard of
reasonable professional assistance.
- Reasonable Probability of a Different Outcome
Justice Sadrehashemi found that had the applicant
been properly advised, she would have disclosed the criminal charge before IRCC
rendered its decision. There was therefore a reasonable probability that the
application would not have been refused for misrepresentation, satisfying the
prejudice requirement for ineffective assistance of counsel.
- Procedural Fairness Breached
Given
the severe consequences of a misrepresentation finding—including a five-year
inadmissibility period and restrictions on future immigration applications—the
Court held that a heightened duty of procedural fairness applied. The applicant
successfully established that the ineffective assistance of counsel resulted in
a breach of natural justice.
Outcome
The
Federal Court granted the application for judicial review, set aside the
misrepresentation finding and work permit refusal, and returned the application
for reconsideration by a different officer. The Court also confirmed that the
applicant may choose to withdraw the work permit application entirely if she
wishes.
Case Citation: Hwangbo v. Canada (Citizenship and Immigration), 2026 FC 771 (CanLII)
