REASONS AND JUDGMENT

I. Overview

[1] The Applicant, Yun Hwangbo, was found inadmissible for misrepresentation due to her failure to disclose a criminal charge in Canada in response to a question on her work permit application. A finding of misrepresentation has serious consequences for Ms. Hwangbo, beyond the refusal of her work permit; it results in a five-year period of inadmissibility, during which she cannot apply for permanent residence and must obtain Ministerial permission to enter Canada (Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], ss 40(2), 40(3)).

[2] Ms. Hwangbo challenges the misrepresentation finding on two grounds. First, she argues that the incompetence of their former representative resulted in a breach of natural justice: but for the incompetence of their former representative, there is a reasonable probability that she would have disclosed her criminal charge in Canada, and no misrepresentation finding would have been made against her. Second, she argues the Officer unreasonably found the omission of her criminal charge in Canada to be a misrepresentation within the meaning of section 40 of IRPA.

[3] I find the breach of natural justice argument determinative. I am satisfied that Ms. Hwangbo’s former representative incompetently advised her that her criminal charge in Canada did not affect her application. I agree with Ms. Hwangbo that but for this incompetence, there is a reasonable probability that her work permit application would not have been refused on this ground.

II. Procedural History

[4] Ms. Hwangbo is a citizen of South Korea. In September 2023, she was charged with a criminal offence in Canada. In January 2024, Ms. Hwangbo applied for a work permit. She was represented on that application by an immigration consultant (“Former Counsel”).

[5] In July 2024, Ms. Hwangbo was advised in a procedural fairness letter that an Officer from Immigration, Refugees and Citizenship Canada [IRCC] had concerns that she had misrepresented on her work permit application by not disclosing a criminal charge in response to the following question:

Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country?

[6] Ms. Hwangbo responded to the procedural fairness letter with the assistance of her Former Counsel. In September 2024, an Officer found Ms. Hwangbo inadmissible for misrepresentation.

[7] In October 2024, Ms. Hwangbo’s current counsel informed her Former Counsel of Ms. Hwangbo’s allegations of incompetent representation in accordance with the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings. Former Counsel responded by way of a letter.

[8] There are significant differences between Ms. Hwangbo’s account and her Former Counsel’s account regarding: the preparation of the work permit application, the details of a phone call in March 2024 and the preparation of the response to the procedural fairness letter. Ms. Hwangbo set out her account in an affidavit filed on judicial review. Despite being advised that leave had been granted, Former Counsel did not file a motion to intervene, nor did he submit evidence to corroborate his account. Ms. Hwangbo was not cross-examined on her affidavit.

III. Issue and Standard of Review

[9] The determinative issue is whether there was a breach of natural justice due to the ineffective assistance of Ms. Hwangbo’s former representative in preparing her work permit application. The general presumption of a reasonableness standard of review does not apply in these circumstances (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 23, 77 [Vavilov]). The question I need to ask is whether the procedure was fair in all the circumstances (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).

[10] The interests at stake are significant given the severe consequences of a misrepresentation finding, including a five-year period of inadmissibility during which Ms. Hwangbo cannot apply for permanent residence and must obtain Ministerial permission to enter Canada (IRPA, ss 40(2), 40(3)). This Court has found that, given these severe consequences, a heightened duty of procedural fairness is owed (Likhi v Canada (Minister of Citizenship and Immigration), 2020 FC 171 at para 27).

IV. Preliminary Issue: Objections to Evidence in this Proceeding

[11] Both parties have objected to evidence filed by the other in this proceeding.

[12] Ms. Hwangbo filed evidence from her criminal lawyer explaining that the charges against her had been dropped in October 2024. This evidence was not before the Officer – at the time the Officer was considering the application, the charges had not yet been dropped. I agree with the Respondent that it is not appropriate for me to consider this new evidence in reviewing the Officer’s decision on judicial review because it was not before the Officer when they made their decision and does not fit within any of the exceptions for admission of new evidence (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20).

[13] The Respondent filed three Electronic Travel Authorization (ETA) applications that were filed by Ms. Hwangbo after submitting her work permit application but before receiving the procedural fairness letter on her work permit application. These documents were not before the Officer and are therefore not in the Certified Tribunal Record (“CTR”). The Respondent is asking the Court to consider these documents in making its factual determinations about whose account to believe – Ms. Hwangbo or her Former Counsel. Though, as I will explain, I am not persuaded as to the relevance of these documents for that assessment, I admitted these documents, not to assess the reasonableness of the Officer’s evaluation, but to potentially assist in evaluating Ms. Hwangbo’s procedural fairness claim.

V. Analysis

A. Ineffective assistance of counsel test

[14] In order to establish that there has been a breach of natural justice due to ineffective assistance of counsel in an immigration proceeding, this Court has held that three components must be established:

• a)The representative’s alleged acts or omissions constituted incompetence;

• b)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

• c)The representative be given notice and a reasonable opportunity to respond (Guadron v Canada (Minister of Citizenship and Immigration), 2014 FC 1092 at para 11; R v GDB, 2000 SCC 22 at para 26 [GDB]).

[15] There is no dispute that the third component of the test has been met. The Former Counsel was notified and given a reasonable opportunity to respond to the Applicant’s allegations.

B. Incompetence is established

(1) Factual background to incompetence allegation

[16] Ms. Hwangbo argues that there were three points where her Former Counsel was incompetent: i) when preparing the work permit application form, he did not ask her about criminal charges in Canada; ii) when she called to ask Former Counsel about the delay in processing the application and told him about her criminal charge, he did not advise her that her application needed to be updated; and iii) in response to the procedural fairness letter, he advised her to focus her affidavit on the circumstances leading to the criminal charge instead of the reason that this information had not been disclosed.

[17] According to Ms. Hwangbo, she prepared the online work permit application with her Former Counsel over the phone. He would read the question to her and she provided her response. She states in her affidavit that her Former Counsel asked her about criminality in South Korea but asked no questions about any criminal charges in Canada. The online form does not require a signature. The Former Counsel agrees that the online work permit application was prepared in the way that Ms. Hwangbo describes but disputes that he failed to ask her about criminal charges in Canada. The Former Counsel’s account is that Ms. Hwangbo responded that she did not have any criminal charges in Canada and that is the reason it was recorded in this way on the form.

[18] Regarding the phone call that happened in March 2024, both Ms. Hwangbo and her Former Counsel agree that she called in March 2024 and raised the issue of criminality in Canada. This call happened several months before IRCC sent a procedural fairness letter. Ms. Hwangbo states in her affidavit that she told her Former Counsel about her criminal charge in Canada and asked whether that could be the reason that there was a delay in processing her application. According to Ms. Hwangbo, her Former Counsel told her that the criminal charge in Canada would not affect the processing of the application; the Former Counsel did not alert Ms. Hwangbo to the discrepancy with the application form they had filled out or to the need to update her application with this information.

[19] Former Counsel states in his letter that Ms. Hwangbo talked to him about the impact of criminality in Canada in broad terms, referring to a “friend”, and did not raise the issue of a Canadian criminal charge with respect to herself.

[20] The last basis of Ms. Hwangbo’s incompetence allegation relates to the preparation of the response to the procedural fairness letter. Ms. Hwangbo states in her affidavit that her Former Counsel told her to provide details of the circumstances of her criminal charge and did not advise her that the key issue was to explain the reasons for the incorrect response on the work permit application. Former Counsel states in his letter that Ms. Hwangbo was not forthcoming with details of or circumstances surrounding her criminal offence. The statutory declaration that Former Counsel filed in response to the procedural fairness letter is a detailed account of the circumstances leading to the criminal charge. There is no further evidence or explanation provided about the reason for the omission of this information from the work permit application.

[21] I do not find it is necessary or appropriate for me to resolve all points of the dispute between the Former Counsel and Ms. Hwangbo. As the Supreme Court of Canada explained in in GDB: “The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body” (GDB at para 29). Accordingly, I will focus on one of Ms. Hwangbo’s allegations – the failure to update the application after the March 2024 phone call – I find this a sufficient basis to establish incompetence and that there was a miscarriage of justice as a result of it. It is unnecessary for me to comment on Former Counsel’s competence in relation to the other grounds raised by Ms. Hwangbo.

(2) Legal test for incompetence

[22] To satisfy the first prong of the test, the Applicant bears the onus of establishing that their representative’s conduct fell outside the range of reasonable professional assistance. Incompetence is determined on a reasonableness standard with “a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance” (GDB at para 27).

[23] The Respondent asks the Court to accept Former Counsel’s version of March 2024 call set out in his letter that has been attached as an exhibit to affidavit filed by the Applicant. In particular, the Respondent argues that this account is credible because Ms. Hwangbo’s version does not make sense for three reasons: i) Former Counsel had no reason to make up this account and it would be inconsistent with his job to not want to update the application if Ms. Hwangbo had told him about her criminal charge during their phone call; ii) Ms. Hwangbo must have known that she had to disclose her criminal charge and that is why she called Former Counsel about it; and iii) Ms. Hwangbo filed three other ETA applications where her criminal charge in Canada was not disclosed and therefore, she is not unsophisticated with immigration applications.

[24] The overarching problem with the Respondent’s position is the lack of any evidence from Former Counsel and the failure to cross-examine Ms. Hwangbo on her sworn allegations (see discussion in Brown v Canada (Citizenship and Immigration), 2024 FC 105 [Brown] at paras 44-47).

[25] Further, I do not find any of the Respondent’s concerns detract from the credibility of Ms. Hwangbo’s account. First, as explained by Justice Norris in Brown, a former counsel in these circumstances has a direct stake in the outcome and therefore their “written representations are not entitled to any special consideration by virtue of [their] professional status: see Pluri Vox Media Corp v Canada, 2012 FCA 18 at paras 5-7.” (at para 46). Second, there is nothing inherently incapable of belief or inconsistent about Ms. Hwangbo’s account. Ms. Hwangbo stated that she reached out to her Former Counsel approximately five weeks after filing the application because of the delay in receiving any response from IRCC. She explains that at that point she told her Former Counsel about her criminal charge and asked if that could have impacted the processing time. She was not raising it because she thought it ought to have been disclosed but rather, because she thought the criminal charge was delaying her application. Lastly, the ETA applications on their own do not suggest that Ms. Hwangbo’s account is not credible. These were filed prior to the procedural fairness letter being issued. I have little information about these applications. For example, I do not know if counsel assisted on these applications.

[26] As was the case in Brown, the Former Counsel only provided his account in a letter to Ms. Hwangbo’s counsel in response to the allegations of incompetence. Ms. Hwangbo’s counsel then provided this letter in their Application Record. Former Counsel was notified that leave was granted and chose not to intervene or to file any evidence. Despite arguing that Ms. Hwangbo’s account was not credible, the Respondent did not take the opportunity to cross-examine her on her affidavit. In these circumstances, I accept Ms. Hwangbo’s unchallenged and uncontradicted account of the March 2024 phone call.

[27] In particular, I accept that Ms. Hwangbo told her Former Counsel in the March 2024 phone call that she had been criminally charged in Canada. I also accept that Former Counsel advised her that this was not relevant to the processing of her work permit application and he failed to take steps to update her application with this information. I am satisfied that Ms. Hwangbo’s allegations of incompetence are “sufficiently specific and clearly supported by the evidence” (Brown v Canada (Minister of Citizenship and Immigration), 2012 FC 1305 at para 56).

[28] When Former Counsel became aware of a criminal charge in Canada, there was an obligation to inform Ms. Hwangbo that this was relevant information that had to be disclosed to IRCC. In failing to advise Ms. Hwangbo that the criminal charge was relevant and that she was at risk of a misrepresentation finding for not disclosing it, the Former Counsel’s representation fell below the standard of reasonable professional assistance.

C. Prejudice due to the incompetence is established

[29] The second component, the prejudice component of the test, is met where the Applicant demonstrates that, but for the alleged conduct, there is a reasonable probability that the original result would have been different (Guadron at para 11; GDB at para 26).

[30] I am satisfied, based on Ms. Hwangbo’s sworn evidence, that she would have disclosed her Canadian criminal charge had her Former Counsel advised that the disclosure was necessary. As I explained above, I did not make findings of fact about the incompetence allegation related to preparing the application form. I find that, even accepting that the misrepresentation at the time of the application submission was not the result of incompetence, had Ms. Hwangbo disclosed the Canadian criminal charge in March 2024 — approximately four months prior to the Officer issuing the procedural fairness letter — there is a reasonable probability that the Officer would not have refused the application due to misrepresentation at that stage. I also note that it may have also been open to Ms. Hwangbo, at that time, months prior to the procedural fairness letter being issued, to withdraw her application altogether (Mohammadizadeh v Canada (Citizenship and Immigration), 2024 FC 1276 at para 19). I am satisfied Ms. Hwangbo has met her onus of establishing the prejudice component of the ineffective representation test.

D. Disposition

[31] Ms. Hwangbo has established that her procedural rights were breached due to the incompetent representation of her Former Counsel. The application for judicial review is granted. The decision dated September 6, 2024, denying her work permit application and finding her inadmissible due to misrepresentation is set aside. Similar to the remedy issued in Brown, Ms. Hwangbo’s application for a work permit is sent back to be redetermined, if she so chooses. For greater certainty, Ms. Hwangbo is permitted to withdraw that application in its entirety, if so advised.

[32] Neither party raised a question for certification and I agree none arises.

JUDGMENT in IMM-17347-24

THIS COURT’S JUDGMENT is that

1. The application for judicial review is allowed;

2. The decision dated September 6, 2024 is set aside;

3. The applicant’s work permit application is sent back to be redetermined if the Applicant chooses; and

4. For greater certainty, the applicant is permitted to withdraw the work permit application in its entirety if so advised.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCE:

SOLICITORS OF RECORD: