Docket: IMM-23142-24
Citation: 2025 FC 1879
Ottawa, Ontario, November 27, 2025
PRESENT: The Honourable Madam Justice Tsimberis
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BETWEEN: |
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ADAM AYOUB ALI |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Mr. Adam Ayoub Ali, is seeking judicial review of a November 13, 2024 decision of the Officer of the High Commission of Canada in Tanzania [Officer] that rejected his application for permanent residence as a member of the Convention refugee abroad class or as a member of the Humanitarian-Protected Persons Abroad designated class [Decision]. The Officer found that Mr. Ali lacked credibility given substantive inconsistencies between his application and the responses given by him during his oral interview, which are directly related to Mr. Ali’s basis of claim [BOC] as a refugee and for the country of asylum class.
[2] Mr. Ali challenges the refusal of his application on the sole basis of a breach of procedural fairness based on ineffective assistance of counsel.
[3] Mr. Ali submits that he was denied natural justice because the Non-Governmental Organization [Former Representative] submitted the wrong case narrative to the Officer on his behalf. As such, the case narrative found in the Certified Tribunal Record [CTR] is that of another person. This error led the Officer to making an adverse credibility finding against Mr. Ali and forms the basis of the refusal of his application. Mr. Ali points out that the correct form he filled out himself is found in his Application Record.
[4] The Minister of Citizenship and Immigration [Minister] submits Mr. Ali has not established a breach of natural justice due to the incompetence of his Former Representative. The Minister argues that Mr. Ali spoke English fluently and clearly, stated at his interview that he completed his application on his own, without assistance, and confirmed the information contained in it to be true.
[5] For the reasons that follow, this Court allows this application for judicial review.
II. Background
[6] Mr. Ali was represented by its Former Representative, Horn of Africa Educational and Economic Development Society, a Non-Governmental Organization in accordance with the Canadian Government’s procedure for the Private Sponsorship of Refugee Program. Mr. Ali notes that the instructions for the program provide that “Once the application is complete, primary sponsors (and authorized paid immigration representatives acting on their behalf) are the only ones who can submit the application in the portal.”
[7] Mr. Ali contends that he filled out his application himself and sent it to the Former Representative who then submitted his application in accordance with the above-noted program instructions. The case narrative submitted by the Former Representative can be found in Part A of Schedule 2 of Mr. Ali’s application in the CTR at pages 33-4. Mr. Ali contends that this submitted case narrative incorrectly indicates that Mr. Ali returned to Somalia in 2020. Mr. Ali explains that in the original version that he submitted to the Former Representative, he had written that he fled Somalia in 2014, after threats from Alsahab and went to Malaysia and then to China (Exhibit A at pages 39-40 of Mr. Ali’s Application Record). Mr. Ali notes that the addresses listed in Schedule A of the original application that he submitted to the Former Representative are accurate and are consistent with the version of the case narrative he submitted to the Former Representative (Application Record at page 29).
[8] On October 9, 2024, Mr. Ali attended an interview with the Officer. It was noted during the interview that Mr. Ali is fluent in English. The relevant notes from the Officer’s interview with Mr. Ali are reproduced below:
DID SOMEONE HELP YOU TO WRITE YOUR APPLICATION? No.
YOU WROTE ALL OF IT YOURSELF? Yes.
NO ONE ELSE HELPED YOU? Correct.
DO YOU CONFIRM THAT EVERYTHING IN YOUR WRITTEN APPLICATION IS TRUE? Yes.
[…]
YOUR APPLICATION SAYS THAT YOU WENT BACK TO SOMALIA AFTER CHINA AND THAT YOU WERE WORKING AT HAMAR-JAJAB HEALTH CENTRE? That is not my application. *I show the applicant the application* I didn’t write this. This isn’t my application.
THIS IS THE APPLICATION THAT YOU SUBMITTED WITH YOUR NAME AND DATE OF BIRTH, WHICH YOU CONFIRMED EARLIER IS ACCURATE? Yes, but it’s not my application.
DO YOU HAVE A REASONABLE EXPLANATION OF WHY SOMETHING YOU DIDN’T WRITE WOULD BE ON YOUR APPLICATION? In the main application, this is not what I wrote. What I submitted in my application is different from what you have. It’s not me. I don’t have a reasonable explanation for this, maybe someone is trying to sabotage me.
I STATE MY CONCERNS TO THE APPLICANT: I am concerned that you are not credible because what you have written in your application and what you are telling at interview about your personal circumstances and the nature of your persecution are very different. Stated in your written application that after you studied in China, you returned to Somalia and worked at a clinic, and had problems at that clinic in Somalia. Stated at interview that after China, you went directly to Kenya, then to Uganda, and never returned to Somalia. I am concerned that this means that I cannot believe what you are saying because of the inconsistencies in your physical location, who persecuted you, how you were persecuted, and your circumstances that may affect your admissibility.
RESPONSE: Regarding the application, I filled it myself and I sent it to my sponsor. My sponsor was submitting the application. I filled it and sent it to the sponsor. After that, I don’t understand if there was some kind of manipulation. Regarding the original application, if there are any inconsistencies, I am disappointed that this happened because I don’t know where this came from.
[9] The Former Representative that sponsored Mr. Ali and assisted in the processing of the application acknowledged by sworn affidavit that they made an error, and more specifically, that their staff mistakenly included the information from another applicant in Schedule 2 of Mr. Ali’s application.
III. Decision Under Review
[10] In the Decision, the Officer made an adverse credibility finding against Mr. Ali because his written application was wholly inconsistent with statements he made during his oral interview. The relevant portions of the Decision are reproduced below:
I am not satisfied that you have been truthful or forthcoming with the information you provided in support of this application. At interview, your obligation to be truthful and honest was made clear to you. Concerns over the credibility of the information you were providing was made known to you during the interview and you were given an opportunity to respond. Your response, however, did not allay the concerns.
Having removed all the information with which there are credibility concerns from the assessment of your application, there remains insufficient evidence remaining with which to be satisfied that you are not inadmissible to Canada and that you meet the requirements of the Act as stated above.
[11] The Officer's Global Case Management System [GCMS] notes are part of the reasons for the Decision: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para 44. The Officer’s GCMS notes, in which the Officer explains Mr. Ali’s application was refused based on the adverse credibility finding, are reproduced below:
Applicant interviewed this day. I am not satisfied that the applicant is credible for the reasons set out below.
The statements of the applicant in his written application and the statements of the applicant at interview are substantively and significantly inconsistent. In his written application, the applicant stated that after graduating from university in China, he went to Somalia and started to work at a health centre. Some months later, he was told that staff were being kidnapped from the health centre by Al Shabab, that Al Shabab was looking for him too, and that he saw armed men by his home when going home that night. He then left Mogadishu and went to Kenya.
At interview, the applicant stated that after graduating from university in China, he went to Kenya and then onwards to Uganda to claim refugee status. The applicant confirmed at interview that he wrote the written application. The applicant stated at interview that after he left China, he never went back to Somalia. These are substantive inconsistencies that go directly to the applicant’s basis of claim as a refugee and for the country of asylum class.
I note that the applicant has been accepted as a refugee by UNHCR / Uganda. However, the applicant does not have a refugee referral form from UNHCR, so it is not possible to know what the elements of the applicant’s basis of claim where when the applicant was accepted as a refugee in Uganda. Given the lack of information provided about the basis upon which the applicant was accepted as a refugee in Uganda, I am satisfied that the applicant’s lack of credibility at interview as noted above outweighs the fact that the applicant was accepted as a refugee in Uganda.
Application refused for lack of credibility of the applicant.
Please include the following in the refusal letter:
“I am not satisfied that you are credible because your statements at interview are substantively inconsistent with your statements in your written application regarding when, where and how you state you were persecuted, as well as your personal circumstances and where you were living at various points in time.”
IV. Issue and Standard of Review
[12] The only issue raised in this matter is whether Mr. Ali was denied procedural fairness on the basis of incompetent counsel.
[13] The competency of counsel relates to Mr. Ali’s right to fully present his case, which is a question for procedural fairness: Zhou v Canada (Citizenship and Immigration), 2022 FC 1046 [Zhou] at para 9 citing Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at para 27. The standard of review for allegations of professional incompetence is functionally equivalent to a correctness standard, though strictly speaking, no standard is applied: Zhou at para 9; Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at para 9. Instead, such questions are to be reviewed from the perspective of whether the procedure followed by the decision-maker was fair and just: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35.
V. Analysis
A. Legal Framework
[14] Negligent representation by a former representative may result in a breach of procedural fairness when it results in a miscarriage of justice: R v GDB, 2000 SCC 22 [GDB] at para 28. To succeed on a procedural fairness violation stemming from incompetent representation, Mr. Ali must establish that all elements of the following tripartite test are met:
The representative's alleged acts or omissions constituted incompetence;
There was a miscarriage of justice in the sense that, but for the alleged conduct, there is a reasonable probability that the result of the original hearing would have been different; and
The representative be given notice and a reasonable opportunity to respond.
(Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 11, referring to Pathinathar v Canada (Citizenship and Immigration), 2013 FC 1225 at para 25 and Nagy v Canada (Citizenship and Immigration), 2013 FC 640 at para 25).
[15] Incompetence of a former representative must be sufficiently specific and clearly supported by the evidence: Shirwa v Canada (Minister of Employment and Immigration), 1993 CanLII 17477 (FC), [1994] 2 FC 51 at p 60; MN v Canada (Citizenship and Immigration), 2023 FC 663 at paras 76-77, and will only constitute a breach of natural justice in extraordinary circumstances: Memari v Canada (Citizenship and Immigration), 2010 FC 1196 at para 36. As noted at paragraph 27 by the Supreme Court in GDB:
Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.
[16] The onus is therefore on Mr. Ali to prove every element of the test for negligent representation, including rebutting the strong presumption that Former Representative acted competently and proving that a miscarriage of justice resulted: GDB at para 27.
B. Is the tripartite test for breach of procedural fairness based on incompetent representation established?
[17] In my view, the test for breach of procedural fairness based on incompetent representation is established in this matter as all elements of the tripartite test are met.
(1) Element 1 - Did the Former Representative’s alleged acts constitute incompetence?
[18] In the case before the Court, the impugned act is the error made by the Former Representative in submitting the wrong case narrative to the Officer. The Former Representative admits in the sworn affidavit of their chairperson that this was an error on their part, explaining that when staff of the Former Representative filled out Schedule 2 in Mr. Ali’s application, they made a mistake and used the information from another applicant. The chairperson of the Former Representative adds that they did not realize that the wrong Schedule 2 information was sent until the application was refused, stating that this was an honest mistake on their part and that there was no intention to mislead.
[19] While the Court was missing the Exhibit “A”
to the Affidavit of the chairperson, counsel for Mr. Ali filed the missing Exhibit “A”
as part of the sworn Affidavit of Pardis Karimi in response to the Court’s Direction dated November 17, 2025. In her affidavit, Ms. Karimi swears that: “The affidavit of [the chairperson] makes reference to Exhibit "A" which is missing from the affidavit. I attached as Exhibit "A" to my affidavit the copy of the document that was sent by our office to [the chairperson] for his signature which includes the said Exhibit "A".”
The Exhibit A is a Schedule 2 that is duly signed (in cursive) by Mr. Ali and contains a case narrative that confirms what Mr. Ali claims is his original and correct case narrative with information that he fled Somalia in 2014, after threats from Alsahab and went to Malaysia and then to China (and never returned to Somalia). This Exhibit “A”
is the same as what Mr. Ali reported he sent to the Former Representative in his affidavit.
[20] The Minister submits that Mr. Ali has not demonstrated that the above-described act amounts to incompetence by the Former Representative. The Minister contends that Mr. Ali is fluent in English, signed the forms himself, including the erroneous Schedule 2 and as such, would have been aware of what was filled out in these forms and attested to the accuracy and completeness of the information therein.
[21] Furthermore, the Minister highlights that the Officer specifically asked Mr. Ali during the interview about the completion of his application, where Mr. Ali confirmed he wrote his application himself and that everything in the written application was true. The Minister argues the affidavit from the Former Representative thus contradicts Mr. Ali’s own evidence at the interview that he prepared his application by himself.
[22] The Minister relies on Ahmed v Canada (Citizenship and Immigration), 2020 FC 107 at paras 32-34 and Wang v Canada (Citizenship and Immigration), 2023 FC 62 at para 53 to argue that the onus is on Mr. Ali to ensure that all information submitted in the application forms is truthful, accurate and complete, regardless of whether or not he was assisted by a representative.
[23] I disagree with the Minister.
[24] The signed forms referenced by the Minister in the CTR do not contain the signature of Mr. Ali in cursive, but the name “A. Adam”
appearing in printed handwriting. Mr. Ali responds that his signature in cursive handwriting can be properly found on the correct version of the documents he claims to have submitted to his Former Representative, which can be found at pages 26 and 30 of the Application Record: Applicant’s Further affidavit at para 4.
[25] As such, I am not convinced that this is such a case where an applicant failed to properly review a form prepared by a representative. The circumstances of this case are distinguishable from the cases relied on by the Minister. The information before me indicates that Mr. Ali had to rely on his Former Representative to submit his form to the Officer and cannot be characterized as a misrepresentation. In his affidavit, Mr. Ali explains that, because he was unaware of the error in his case narrative made by the Former Representative, he could not understand the problem and was not able to fully express himself before the Officer at his interview. Mr. Ali adds that it is only after receiving the Decision that he came to understand that the written case narrative that was sent was not his story but that of someone else.
[26] While Mr. Ali could have noticed his Former Representative’s mistake earlier, that does not diminish the Former Representative’s negligent omission. As Justice Manson held in Yang, while the applicant was partially to blame for the omissions from the submitted form, the applicant’s “failures do not diminish the responsibilities of her representatives”
: Yang v Canada (Citizenship and Immigration), 2019 FC 402 [Yang] at para 40.
[27] Before the hearing, I issued a Direction to the parties bringing their attention to the recent decision of Justice Pentney in Bailey v Canada (Citizenship and Immigration), 2025 FC 1299 [Bailey] where the Court concluded that the applicant in that matter had been denied procedural fairness based on an inadvertent failure of former representative to file key documents in support of her H&R application:
[26] By any measure, it was counsel’s obligation to include these documents with the Applicant’s H&C application. Former counsel No. 2 does not claim that their omission from the package of materials was the result of any strategic choice. It appears to have been the product of inadvertence and miscommunication within the law firm. I find that former counsel’s failure to include them fell short of the standards of professional competence. I make this finding based on: the importance of the materials to central features of the Applicant’s H&C application, and the acknowledgement that former counsel had possession of them and had intended to include them in support of the Applicant’s H&C request, but did not do so through inadvertence and a failure to confirm with former counsel No. 1 that he had previously submitted them.
[28] The Minister explains the onus is on Mr. Ali to provide clear evidence of incompetence and argues it was not done in this case. The Minister explains that the evidence led by Mr. Ali is not sufficiently clear to meet the high threshold of incompetence required and this distinguishes Mr. Ali’s case from the Bailey decision brought to the attention of the parties by the Court.
[29] The Minister further argues that Mr. Ali has failed to provide clear evidence of incompetence by his Former Representative. The Minister notes that the Former Representative’s affidavit contradicts Mr. Ali’s own evidence during the interview when he confirmed he “wrote all of [his application] himself”
. Moreover, the chairperson’s affidavit states that information for schedule 2 was provided, without explicit mention of the other forms in Mr. Ali’s application. Therefore, the Former Representative has only admitted to incompetence as it relates to the submission of schedule 2. The Minister observes that Schedule A of the application is not consistent with the case narrative Mr. Ali is now submitting.
[30] I disagree with the Minister. While the Former Representative did submit the application on behalf of Mr. Ali, the evidence does not suggest the Former Representative helped Mr. Ali write his narrative, but that Mr. Ali provided a “summary of why he was forced to flee from his country”
and this summary can be found in the case summary in the Application Record and as Exhibit “A”
to the Affidavit of Pardis Karimi.
[31] I agree with Mr. Ali that the Former Representative did not act with the care expected of reasonably competent counsel by submitting the case narrative of another applicant instead of his own. The Former Representative has admitted to this fact themselves. In my view, there is no question that such conduct was below the standard expected of competent counsel.
[32] Findings of incompetent representation have been made in cases where representation by an immigration consultant failed to lead any meaningful or persuasive evidence: Rodrigues v Canada (Minister of Citizenship and Immigration) (FC), 2008 FC 77 at paras 39-40; El Khatib v Canada (Citizenship and Immigration), 2025 FC 49 at paras 30-31. Similarly, in this case, it is clear from the evidence that the Former Representative failed to submit Mr. Ali’s proper case narrative along with his application. This narrative was of central importance to Mr. Ali’s application and failure to submit this information meets the threshold of incompetence needed under this prong of the test.
[33] Mr. Ali submits that, as in the Bailey decision, the Former Representative admitted to making the mistake in their affidavit and the mistake of the Former Representative is similar in both cases: Bailey at para 26. Mr. Ali argues he has met his onus of providing clear evidence of incompetence of his Former Representative. He explains he provided the correct information to his Former Representative and had to rely on them to upload the correct information. Their failure to do so could not have been prevented by Mr. Ali.
[34] For similar reasons provided by Justice Pentney in Bailey, I find that the error made by the Former Representative in submitting/uploading the wrong case narrative to the Officer falls short of the standards of professional competence. I make this finding based on the importance of the case narrative to the central features of Mr. Ali’s application, and the acknowledgement that the Former Representative had possession of them and had intended to include them in support of the Applicant’s application for permanent residence but did not do so through inadvertence.
(2) Element 2 – Did the incompetent act amount to a miscarriage of justice?
[35] On this second element of the tripartite test, the Minister simply states that “Mr. Ali has not established a miscarriage of justice in the present case.”
[36] In this case, it is apparent from the Decision that the only basis for which Mr. Ali’s application for permanent residence was refused was the adverse credibility finding, which in turn is based on the “substantive inconsistencies”
between the case narrative submitted by the Former Representative and Mr. Ali’s oral interview. Without the incompetent act of the Former Representative, there would have been no adverse credibility finding based on the inconsistencies raised by the Officer.
[37] As the adverse credibility finding was at the center of the Decision, there is a reasonable probability that the Officer would have decided differently such that the reliability of the result is compromised: El Khatib v Canada (Citizenship and Immigration), 2025 FC 49 at para 48. Mr. Ali thus has established prejudice that flowed from the negligent act of his Former Representative, which I deem to be a miscarriage of justice.
[38] Mr. Ali explains that in his case, the Former Representative’s mistake resulted in the wrong information being put before the Officer, placing Mr. Ali back in Somalia after 2014 when he was never there. The information Mr. Ali provided to his Former Representative states he was never in Somalia after 2013.
[39] During the hearing, Mr. Ali highlighted, as Justice Pentney held in Bailey, that it matters not if the outcome would have been different. What is relevant is that “but for”
the Former Representative’s mistake, the correct case narrative would have been before the Officer and would have weighed in the Officer’s analysis of Mr. Ali’s application. Regardless of the outcome, “fairness dictates that the Applicant should have had the opportunity to have this evidence weighed by the Officer”
: Bailey at para 32. I agree that fairness in this matter dictates that Mr. Ali should have the opportunity to have his evidence weighed by the Officer.
(3) Element 3 – Was the Former Representative provided notice and given an opportunity to respond?
[40] The third element of the tripartite test is not being seriously challenged. The Former Representative filed a sworn affidavit admitting its error. Although the Minister does finish their written submissions at paragraph 26 of its Further Memorandum of Argument by stating “the Applicant has not established any of the elements necessary to demonstrate representative incompetence which could have led to a breach of natural justice”
, the Minister does not explain how the representative was not given notice and a reasonable opportunity to respond, given the sworn affidavit of the Former Representative’s Chairperson admitting to the error.
[41] In my view, it is clear that the Former Representative was notified, was given an opportunity to respond, and did in fact respond to the allegation by admitting their error.
VI. Conclusion
[42] This application for judicial review is granted. Mr. Ali has established a breach of procedural fairness based on incompetent representation. I find that there is clear evidence in this case that the Former Representative uploaded the forms of another individual instead of the forms prepared by Mr. Ali. I find that Mr. Ali has met his burden to provide clear evidence of incompetence by his Former Representative and that as a result of this incompetence, Mr. Ali did not have a fair opportunity to have his case heard, resulting in a miscarriage of justice. I find this is one of the exceptional cases justifying judicial intervention.
[43] The matter will be remitted for redetermination by a decision-maker not previously involved in this matter.
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