Singh v. Canada (Citizenship and Immigration), 2024 FC 576 : Work Permit Refusal Based on Misrepresentation Set Aside Due to Ineffective Legal Representation

The Federal Court allowed an application for judicial review after a spousal open work permit was refused and the applicant was found inadmissible for misrepresentation under section 40(1)(a) of the Immigration and Refugee Protection Act (IRPA). The visa officer concluded that the applicant had failed to disclose his previous immigration history in the United Kingdom, including that he had been ordered to leave the UK following an overstay. The applicant argued that he had fully disclosed his immigration history to his immigration consultant, who failed to include the information in the application and never allowed him to review or sign the completed forms before submission. The Court held that the applicant’s right to procedural fairness had been violated because the consultant’s ineffective assistance directly resulted in the finding of misrepresentation.

Key Principle

A finding of inadmissibility for misrepresentation may be set aside where it results from ineffective assistance of counsel or an immigration consultant. To establish a breach of procedural fairness, an applicant must demonstrate that the representative’s conduct fell below the standard of reasonable professional assistance, that the incompetence caused prejudice affecting the outcome, and that the representative was given notice and an opportunity to respond. Immigration representatives have a professional duty to accurately elicit material information from their clients, ensure application forms are complete, and provide applicants with an opportunity to review their applications before submission.

Background

The applicant applied for a spousal open work permit to join his wife in Canada. During processing, IRCC issued a procedural fairness letter alleging that he had failed to disclose that he had previously been ordered to leave the United Kingdom after overstaying his visa. The applicant maintained that he had fully disclosed his UK overstay, his Canadian visa refusal, and his U.S. visa refusal to his immigration consultant, but the consultant failed to record this information in the application. He further asserted that he was never asked to review or sign the completed application before it was submitted and only discovered the omissions after receiving the procedural fairness letter. The consultant disputed these allegations and claimed that the applicant had failed to disclose the relevant immigration history.

Court Findings

• The Immigration Consultant Provided Ineffective Assistance

The Court found that the consultant’s conduct fell below the standard of reasonable professional assistance. The consultant’s intake questionnaire asked only about previous visa refusals and failed to ask whether clients had ever been ordered to leave another country, despite this being a mandatory question on the IRCC application form. The Court concluded that the consultant failed to properly obtain the information necessary to prepare an accurate application and failed to ensure that the applicant reviewed the completed forms before submission.

• The Applicant Suffered Prejudice

The Court held that the consultant’s omissions directly resulted in the finding of misrepresentation. The sole basis for refusing the work permit and imposing a five-year inadmissibility bar was the failure to disclose the applicant’s UK immigration history. Had the application been properly completed, there was a reasonable probability that the outcome would have been different. The Court also emphasized the significant prejudice arising from the five-year inadmissibility period, which prevented the applicant from reuniting with his spouse in Canada.

• The Misrepresentation Finding Should Not Be Reconsidered

Having concluded that the applicant’s procedural fairness rights were breached through ineffective representation, the Court held that the issue of misrepresentation should not be reconsidered on redetermination. The applicant should not continue to suffer the consequences of omissions attributable to the consultant rather than to any lack of candour on his part.

Outcome

The Federal Court allowed the application for judicial review, set aside the refusal of the spousal open work permit, and remitted the matter to a different decision-maker for redetermination. The Court further held that the allegation of misrepresentation should not be reconsidered because it resulted directly from the ineffective assistance of the applicant’s former immigration consultant rather than any misconduct by the applicant himself.

Case Citation:

Singh v. Canada (Citizenship and Immigration), 2024 FC 576 (CanLII)