Docket: IMM-9345-23
Citation: 2025 FC 48
Ottawa, Ontario, January 8, 2025
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
SUKHWINDER SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Sukhwinder Singh is a citizen of India who came to Canada in 2007. His refugee claim was refused and his application for leave and judicial review was dismissed. A refused pre-removal risk assessment and two previous applications for permanent residence on humanitarian and compassionate [H&C] grounds all lead to a third refused H&C application [Decision], which is the subject of this judicial review application.
[2] Mr. Singh seeks to have the Decision set aside on the basis of procedural unfairness because of the alleged negligence of the immigration consultant who represented him on his third H&C application and whose licence subsequently was revoked by the College of Immigration and Citizenship Consultants [CICC].
[3] The Respondent argues that the Decision is reasonable and that Mr. Singh did not follow the Court’s protocol regarding allegations of incompetent representation. The Respondent notes, and I agree, that Mr. Singh has not challenged the merits of the Decision based on the record that was before the officer.
[4] I find that Mr. Singh has not followed the Court’s protocol in a key respect, namely, service of the order granting leave. Further, he has not met the high threshold for establishing incompetent representation, notwithstanding the revocation of the former representative’s licence by (membership in) the CICC. For the reasons below, the judicial review application thus will be dismissed.
[5] I deal first with a preliminary issue of the inadmissibility of some of Mr. Singh’s material on this judicial review, followed by an analysis of the issue of incomplete compliance with the protocol by Mr. Singh’s current counsel, and the issue of inconclusive evidence of the incompetence of Mr. Singh’s former representative.
II. Analysis
A. Preliminary issue: Inadmissibility of documents that post-date the Decision
[6] I determine that certain of Mr. Singh’s materials on this judicial review post-date the Decision which is dated June 6, 2023. This means, in my view, that, on a balance of probabilities, they were not before the H&C officer and, hence, they are inadmissible. These documents are found within Exhibit “B”
to Mr. Singh’s September 28, 2023 supporting affidavit; they comprise an accountant’s letter dated July 11, 2023 and accompanying corporate tax documents (related to Mr. Singh’s company, NewLife Kitchen and Bath Inc.), corporate and personal bank statements (only one of which pre-dates the Decision), and customer agreements.
[7] As for the remaining corporate documents which comprise Exhibit “B,”
they are not contained in the certified tribunal record and there is no evidence before the Court that they were provided to the former representative. Further, Mr. Singh’s affidavit states that this exhibit includes “reference letters,”
two of which are undated, while the remaining nine letters post-date the Decision and so they too could not have been before the H&C officer. These materials, thus, also are inadmissible.
[8] Mr. Singh has not shown that these documents fall within any of the three exceptions to the general rule against the admissibility of post-decision material on judicial review, as described in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20. These exceptions include (i) general background that does not involve evidence relevant to the merits of the matter decided by the administrative decision-maker, (ii) procedural defects that cannot be found in the record of the administrative decision-maker, and (iii) an absence of evidence before the administrative decision-maker when they made a related finding.
[9] I also agree with the Respondent that all the documents which comprise Exhibit “B”
post-date the period when Mr. Singh was represented by the former representative on the third H&C application (i.e. March 22, 2022 to August 22, 2022). In other words, they are not relevant to the question of the former representative’s competence.
[10] For all these reasons, I have not taken any of this documentation into account.
B. Current counsel’s incomplete compliance with the Protocol
[11] I note that the Applicant’s Application Record, and the permitted Applicant’s Supplementary Record, show incomplete compliance with the Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings dated June 24, 2022 (last amended October 31, 2023) insofar as the guidelines relate to the protocol for Allegations against authorized representatives in Citizenship, Immigration and Refugee Cases before the Federal Court [Protocol]. While the Protocol does not describe consequences for non-compliance, whether any instance of non-compliance will attract judicial scrutiny and repercussion is highly fact-dependent and at the discretion of the judge in each case. Further, in my view, the issue of compliance with Protocol is relevant to the third element of the test for incompetent representation described below.
[12] The Protocol mandates that, before making allegations against a former authorized representative, an applicant’s current counsel must be satisfied that there is a “clear and reasonable factual foundation”
for the allegations. The current counsel then must notify the former representative in writing, providing a concise summary of the allegations, along with any supporting evidence (emphasis added). The Protocol describes that one of its purposes is to ensure a procedurally fair process for the parties involved, including the former representative.
[13] Consistent with the above fairness considerations, the Protocol further stipulates that if, following current counsel’s investigation, an applicant’s perfected record contains allegations of incompetence, the record must be served on the former representative, with proof of service filed with the Court. The former representative then has 10 days to submit to the parties a written reply or supporting affidavit.
[14] The requirement to provide a former representative with supporting evidence is a new addition to the October 2023 version of Protocol that was not part of the June 2022 version. Mr. Singh’s current counsel advised the former representative in writing on November 10, 2023 [Notice] of the change in representation and of the judicial review application presently before the Court containing allegations against the former representative. Regardless of which version of the Protocol (i.e. June 2022 or October 2023) applies in the circumstances, it is clear from the 2014 version, on which the current counsel relies, that the current counsel must provide the former representative “in writing with sufficient details of the allegations”
and provide seven days (as opposed to the current 10 days) for a response.
[15] The Notice states that current counsel forwarded a signed letter of authorization directing the release of any privilege attached to the former representative’s representation. The Notice also forwards a copy of the 2014 Protocol. The Notice does not indicate, however, that there were any other attachments or enclosures, such as supporting evidence.
[16] That said, the Notice outlines three points of alleged negligence, namely that the former representative: (i) failed to submit, with the H&C application, documentation consisting of financial statements and business ownership documents along with business details, that the former representative requested on March 23, 2022 and Mr. Singh’s son-in-law forwarded to the former representative on March 29, 2022; (ii) misidentified the status of Mr. Singh’s daughter as unmarried, instead of married; and (iii) failed to update IRCC (i.e. Immigration, Refugees and Citizenship Canada) with the status of Mr. Singh’s wife and son, after Mr. Singh requested this be done in May 2023.
[17] The former representative responded within the seven days stipulated in the Notice (consistent with the 2014 Protocol) and conceded the mistake concerning the daughter’s marital status. Regarding the first point, the former representative indicated that Mr. Singh did not provide all required documents but only income tax returns which were submitted with the H&C application. (The latter is confirmed by the contents of the thin certified tribunal record.) Regarding the third point, the former representative did not recall Mr. Singh having provided the information about his wife and son, and requested proof he did so.
[18] In reply to the former representative’s response, Mr. Singh’s current counsel sent a follow up email describing the attachments to the March 29, 2022 email, which email was acknowledged by the former representative at that time with a simple “Thank You,”
and indicating that they were attached as exhibit A. This exhibit was not included in the Applicant’s Supplementary Record, however, and, thus, is not before the Court. In other words, the Court cannot determine whether any supporting evidence was supplied to the former representative. Further, the follow up email does not reply to the former representative’s request for proof that Mr. Singh provided information about the status of his wife and son.
[19] There is no evidence that the former representative responded to the current counsel’s follow up email. Nor is there any evidence that Mr. Singh’s current counsel provided the former counsel with the Court’s order granting leave to commence the judicial review.
[20] Both the June 2022 and the October 2023 versions of the Protocol mandate that, upon leave being granted, current counsel must provide a copy of the order granting leave and setting the matter down for hearing to the former representative. Under the October 2023 version of the Protocol this must be done within five days. The reason for this step is clear in both these versions of the Protocol, namely, to provide the former representative with an opportunity to request leave to intervene in the judicial review.
[21] Mr. Singh’s further submissions note (at paragraph 7), and the record before the Court contains evidence, that the former representative was served with the Applicant’s Supplementary Record. It was incorrect to state, however, that, because no further information was received from the former representative within ten days of service, no further notification to the former representative was required. The 2014 Protocol, as well as the June 2022 and October 2023 versions, all are clear that if leave is granted, the current counsel is required to provide the former counsel or representative with a copy of the leave order.
[22] As this Court previously has held, the failure to provide former counsel with a copy of the leave order is a sufficient basis for the Court not to deal with the issue of alleged incompetent representation: Nik v Canada (Citizenship and Immigration), 2022 FC 522 at para 26. I nonetheless turn to this issue next, in part because of the response to the Notice, but also because Mr. Singh has based his arguments in this matter essentially on the allegation of incompetent counsel. I note that the Respondent addressed the reasonableness of the Decision in written submissions and indicated reliance on the written submissions on the issue of reasonableness at the oral hearing.
C. The Applicant has not established incompetence of the former representative
[23] I am not convinced that the former representative’s representation of Mr. Singh rises to the level of incompetence warranting the judicial remedies he seeks, namely, a directed decision granting his H&C application or setting aside the Decision with the matter remitted for redetermination by a different officer within 30 days.
[24] Natural justice or procedural fairness issues invite a correctness‑like standard of review: Rendon Segovia v Canada (Citizenship and Immigration), 2020 FC 99 [Rendon Segovia] at para 9. Regardless, the focus of the reviewing court is whether the process was fair in all the circumstances: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 23, 77; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54-56; Chaudhry v Canada (Citizenship and Immigration), 2019 FC 520 at para 24.
[25] Rendon Segovia enumerates (at para 22) the conjunctive tripartite test, for establishing the incompetence of counsel amounting to a breach of natural justice or procedural fairness, as comprising the following elements: (i) prior counsel’s acts or omissions constituted incompetence or negligence; (ii) a miscarriage of justice occurred, meaning that, but for the alleged conduct, there is a reasonable probability there would have been a different result; and (iii) the representative had a reasonable opportunity to respond to an allegation of incompetence or negligence. See also Kandiah v Canada (Citizenship and Immigration), 2021 FC 1388 at para 48.
[26] The test is cumulative, meaning that an applicant has the burden of proving all the components of the test for the Court to conclude that an authorized representative was incompetent: Twizeyumukiza v Canada (Citizenship and Immigration), 2024 FC 974 at para 31.
[27] As this Court noted in Rendon Segovia (at para 22), a consideration of counsel’s alleged incompetence begins with a strong presumption that acceptable counsel conduct falls within a wide range of reasonable professional assistance and, further, incompetence of counsel resulting in a breach of natural justice will occur only in “extraordinary circumstances.”
These principles are consistent, in my view, with the general rule that applicants bear the consequences of their choice of adviser: Cove v Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at para 6; El Ghazaly v Canada (Citizenship and Immigration), 2007 FC 1329 at para 20; Shirzad v Canada (Citizenship and Immigration), 2022 FC 89 at para 37.
[28] In addition, establishing former counsel’s act or omission constitutes incompetence must be done “without the benefit and wisdom of hindsight”
: Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at para 84b. See also Kim v Canada (Citizenship and Immigration), 2012 FC 687 [Kim] at para 1.
[29] Bearing these principles in mind, and leaving aside the third element of the test which in my view has not been met because of the incomplete compliance with the Protocol, notably, the lack of service of the leave order on the former representative, I am not persuaded that the first and second elements of the test have been met.
[30] Regarding the former representative’s alleged acts or omissions, I agree with the Respondent that just because the former representative was disciplined by the CICC does not mean, in itself, that the representation of Mr. Singh was negligent. Exhibit “C”
to Mr. Singh’s supporting affidavit dated September 28, 2023 is comprised of the May 30, 2023 decision of the CICC revoking the representative’s membership. According to paragraphs 6-9 to the decision, many of the instances of misconduct in connection with approximately 60 files involved failing to meet or missing deadlines. There is no evidence that the former representative missed any deadlines in respect of the instant matter or that the instant matter was one of the files at issue in the CICC’s decision.
[31] Further, while the former representative admitted in response to the Notice that the marital status of Mr. Singh’s daughter was misstated in the H&C application, the Decision nonetheless correctly states that Mr. Singh’s daughter resides with him in Canada. In my view, this error is not an extraordinary circumstance that falls outside the wide range of reasonable professional assistance described in Rendon Segovia.
[32] There also is no evidence that Mr. Singh provided information about the status of his wife and son to the former representative. This leaves the issue of the documentation Mr. Singh’s son-in-law forwarded to the former representative on March 29, 2022, the receipt of which was acknowledged.
[33] Mr. Singh relies on this Court’s finding in Kim (at para 24) that where an H&C officer refers specifically to a lack of evidence and where the submissions by the consultant are limited, the failure to submit evidence causes prejudice and amounts to a miscarriage of justice. I find that Kim is distinguishable, however, because there was no information showing how the applicants in that case supported themselves since their arrival in Canada. Here, the former representative submitted some income tax documentation with the H&C application.
[34] Mr. Singh has established the former representative’s request for additional documentation before the H&C application was filed, to which his son-in-law responded. He also has shown that the former representative acknowledged receipt. He has not shown to the Court’s satisfaction, however, that but for the failure to file the additional material, the result would have been different.
[35] Mr. Singh’s evidence shows that the former representative requested on March 23, 2022 his (personal and company) 2021 taxes, utility bills of the last month, and bank statements, as well as photos of the work he does. The March 29, 2022 reply email from Mr. Singh’s son-in-law shows that certain PDF documents were enclosed with photos of Mr. Singh in a work environment. Copies of the documents, however, are not in evidence in this proceeding. Apart from incomplete titles of the documents attached to the email, there otherwise is no meaningful description of the contents of the documents.
[36] Even if it can be said that the non-submission of this documentation with the H&C application falls below what might be expected of a competent representative, I am not convinced that it is an extraordinary circumstance giving rise to procedural unfairness. Even if the documentation were responsive to the former representative’s March 23, 2022 email, at best it would reflect aspects of Mr. Singh’s situation in Canada in 2021-2022, that is, just before the H&C application was received by IRCC in April 2022.
[37] As noted in the Decision, however, Mr. Singh has resided in Canada since 2007. The officer summarizes Mr. Singh’s work history since that time until the present, including the time when Mr. Singh began working for his company, NewLife Kitchen and Bath in May 2021. Based on the evidence submitted with the H&C application, the officer accepted that Mr. Singh was employed from 2009 to 2012 and from 2017 until the present.
[38] The officer notes, however, that the Applicant has not provided pay stubs or T4s from any of the companies at which he worked throughout the 16 years he has resided in Canada. The officer concludes that there is insufficient evidence to establish a history of stable employment and a pattern of sound financial management. The officer further finds that the Applicant has provided few financial documents throughout the 16 years he has resided in Canada to corroborate his earnings and self-sufficiency. According to the officer, the Applicant has not provided bank account summaries outlining his assets and liabilities, or sufficient documentation indicating his earnings throughout most of this period (emphasis added). The officer nonetheless was prepared to give modest weight to Mr. Singh’s employment history.
[39] Given the officer’s focus on Mr. Singh’s entire period in Canada, I find that Mr. Singh has failed to show that the unsubmitted documents, which at best spanned 2021-2022, would have changed the result. When considered against the lack of evidence about the contents of these documents and the lack of evidence that any supporting evidence was provided to the former representative with the Notice, I am unable to determine that Mr. Singh has met the test for establishing incompetent representation.
III. Conclusion
[40] For the above reasons, the judicial review application will be dismissed.
[41] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
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