Tapia Fernandez v. Canada (Citizenship and Immigration), 2020 FC 889 : Decision Set Aside After Counsel Failed to Defend Jockey Against Work Permit Misrepresentation Allegation

The Federal Court reviewed an Immigration Division decision finding Oscar David Tapia Fernandez inadmissible for misrepresentation and issuing an Exclusion Order. Mr. Tapia held a work permit authorizing employment as a jockey but was found working as a groomer at a racetrack. At his admissibility hearing, his former counsel presented no evidence, called no witnesses, and abandoned an intended challenge to the Minister’s evidence. The Court granted judicial review because counsel’s failures amounted to incompetence and created a reasonable possibility that the outcome would have been different.

Key Principle

Ineffective representation can breach procedural fairness where an applicant proves both that counsel’s performance fell outside the range of reasonable professional assistance and that the incompetence caused prejudice or a miscarriage of justice. The applicant need not establish that a different outcome was certain. A reasonable probability that competent representation could have affected the result is sufficient, particularly where serious consequences such as a five-year inadmissibility period follow.

Background

Mr. Tapia, a Mexican citizen, had held work permits as a jockey since 2013. In 2019, CBSA officers encountered him during an investigation at Hastings Racecourse. Although his permit authorized work as a jockey, his British Columbia Gaming Commission identification card described him as a groomer.

He was arrested and appeared at an admissibility hearing two days later. His former counsel met him for the first time that morning and initially indicated an intention to challenge the CBSA officer’s declaration. Counsel later abandoned that challenge, presented no evidence, called neither Mr. Tapia nor his sister-in-law, and made no substantive response to the misrepresentation allegation. The ID consequently found him inadmissible and issued an Exclusion Order.

Court Findings

• Counsel’s Performance Fell Below Professional Standards

By agreeing to represent Mr. Tapia, counsel assumed full professional responsibilities despite having met him only shortly before the hearing. The Court found that counsel’s cumulative omissions, including failing to present available testimony, documentary evidence, witnesses, cross-examination, and relevant legal arguments, fell outside reasonable professional judgment.

• Failure to Present Evidence Caused Serious Prejudice

The ID Member prompted counsel about evidence, witnesses, and the previously announced challenge to the CBSA declaration. Counsel nevertheless presented nothing. Mr. Tapia had evidence concerning his jockey credentials, prior immigration compliance, working conditions, and his employer’s control over his duties. His sister-in-law was also present and prepared to testify. With no contrary case presented, the ID Member effectively had no alternative evidence before her.

• Employer Compliance Was a Material Unexplored Issue

The Court considered particularly significant the possibility that Mr. Tapia’s employer, rather than Mr. Tapia himself, was responsible for assigning groomer duties inconsistent with his work permit. The IRPR imposes obligations on employers to provide employment in the occupation specified in the offer of employment. Counsel failed entirely to explore this potential explanation or distinguish misrepresentation from unauthorized work or breach of permit conditions.

Outcome

The Federal Court found a reasonable possibility that competent representation could have produced a different result. Given the five-year consequences, the cumulative incompetence rendered the hearing procedurally unfair. Judicial review was granted and the matter was returned for a new hearing before a different decision-maker. No question was certified.

Case Citation:

Tapia Fernandez v. Canada (Citizenship and Immigration), 2020 FC 889 (CanLII)