Docket: IMM-15435-24
Citation: 2025 FC 1951
Toronto, Ontario, December 10, 2025
PRESENT: Madam Justice Go
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BETWEEN: |
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HUSEYIN TURGUT |
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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] Huseyin Turgut [Applicant], a citizen of Türkiye, made a refugee claim alleging fear of the Turkish mafia after the Applicant reported them to the police for drug dealing in his neighbourhood.
[2] During his testimony before the Refugee Protection Division [RPD], the Applicant added that he fears persecution by the Turkish government due to his political opinion. The RPD found the Applicant’s statements about his political opinion not credible. The RPD concluded that the Applicant had a viable Internal Flight Alternative [IFA] and as such he is neither a Convention refugee nor a person in need of protection.
[3] On appeal to the Refugee Appeal Division [RAD], the Applicant argued procedural unfairness because he received inadequate representation during his RPD proceeding. To support this argument, he submitted an affidavit attaching correspondences with his former counsel. The Applicant also submitted an arrest warrant by the Turkish police and requested the RAD to admit this new evidence pursuant to subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c. 27.
[4] In a decision dated July 23, 2024 [Decision], the RAD accepted the documents about the Applicant’s former counsel as new evidence but refused to admit the police warrant. The RAD found the Applicant’s allegations against the former counsel were not made out. The RAD confirmed the RPD’s rejection of the Applicant’s refugee claim and dismissed the Applicant’s appeal.
[5] The Applicant seeks judicial review of the Decision, submitting that it was unreasonable and procedurally unfair. For the reasons set out below, I dismiss the application.
II. Preliminary Issues
[6] While reviewing the record, I noticed the Applicant’s Memorandum of Argument [MOA] contained non-existing case law, thus raising a concern that counsel for the Applicant may have used Artificial Intelligence [AI] to generate his MOA without any accompanying declaration, contrary to the Federal Court Practice Direction The Use of Artificial Intelligence in Court Proceedings dated May 7, 2024.
[7] I issued a direction, prior to the hearing, requiring counsel for the Applicant to confirm whether AI has been used in the creation of the Applicant’s MOA. I also directed the Applicant’s counsel to either provide copies of the cases in question or provide an explanation for including non-existent caselaw in the Applicant’s MOA. I directed counsel to respond by November 24, 2025, 12:00 noon EST.
[8] Counsel for the Applicant did not submit a response until after the deadline has passed. In his letter, counsel explained: “Those citations were based on precedents from older practice materials I used previously; however, upon reviewing them again, they do not correspond to the correct reported Federal Court decisions. I sincerely apologize for the oversight and appreciate the Court bringing this to my attention.”
Counsel confirmed that he would be withdrawing the portions of the MOA that rely on the disputed case citations and would not advance those arguments in their current form. In addition, counsel provided an updated list of substitute authorities, and confirmed that they are drawn from “real, accessible Federal Court or Federal Court of Appeal decisions available on CanLII.”
[9] While the response was filed late, the Court appreciates counsel’s admission of his mistake. Having said that, I find it somewhat ironic that counsel for the Applicant relied on precedents without verifying their accuracies in a matter that raises the issue of procedural fairness breach due to the Applicant’s former counsel’s incompetence.
[10] Although there is no evidence before the Court that counsel used AI to generate the MOA, his reliance on non-existing case law nevertheless reflects poorly on counsel. Such conduct undermines counsel’s ability to represent his client competently. It also calls into question whether counsel is fulfilling his duties, with full candor, both to the Court and to the administration of justice.
[11] As the Ontario Superior Court noted in Ko v Li, 2025 ONSC 2965 [Ko]:
[14] Irrespective of issues concerning artificial intelligence, counsel who misrepresent the law, submit fake case precedents, or who utterly misrepresent the holdings of cases cited as precedents, violate their duties to the court.
[12] In Lloyd’s Register Canada Ltd. v Choi, 2025 FC 1233 [Lloyd], Justice Southcott found the undeclared use of AI in the preparation of documents filed with the Court, particularly when they include the citation of non-existent or “hallucinated”
authorities, a serious matter, citing Ko. Justice Southcott went on to note that the lawyer in Ko took full responsibility for her actions and expressed appropriate contrition, but the self-represented respondent in Lloyd did neither. The Court granted the applicant’s motion to remove the respondent’s motion record, finding it to be a “very modest sanction”
in order to “preserve the integrity of the Court's process and the administration of justice:”
Lloyd at paras 11-12. The Court also awarded costs to the applicant in an all-inclusive amount of $500.
[13] In the case before me, counsel for the Applicant has taken full responsibility for his actions. The Court decides not to impose any sanction on counsel. However, the Court reminds counsel the importance of reviewing cases before submitting them to the Court and not submitting case law that does not exist. The Court may not look upon such conduct so kindly should counsel were to engage in similar conduct again in the future.
III. Issues and Standard of Review
[14] In the MOA, the Applicant raises the following issues:
[15] At the hearing, counsel for the Applicant confirmed that he would no longer challenge the RAD’s IFA finding.
[16] While the Applicant frames the issue of incompetent counsel as a procedural fairness issue, I agree with the Respondent that the Applicant is challenging the RAD’s finding that the Applicant’s allegations were not made out, which is subject to the reasonableness standard of review as per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65. The RAD’s decision to refuse to admit new evidence is similarly subject to a reasonableness standard of review.
A. The RAD’s finding that the allegations of incompetent counsel were not made out was reasonable
[17] The Applicant submits that the RAD failed to address the impact of the inadequate representation he received from his former legal counsel on the procedural unfairness that he suffered in his RPD proceeding. Specifically, the Applicant argues that the RAD failed to meaningfully assess how the former counsel’s failure to prepare and submit essential evidence led to adverse credibility findings and gaps in his evidence. He cites Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 [Raza] to argue that the RAD should conduct a thorough review of the quality of legal representation.
[18] The Applicant submits that ineffective assistance of counsel and lack of preparation by counsel could amount to a denial of procedural fairness, citing Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian].
[19] While I agree with the Applicant that ineffective assistance of counsel could amount to a denial of procedural fairness, neither Raza nor Mohammadian dealt with the issue of incompetent counsel.
[20] As the Respondent points out, the tripartite test for procedural fairness violation resulting from incompetent representation is set out in Guadron v Canada (Citizenship and Immigration), 2014 FC 1092 at para 11, namely:
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The representative’s alleged acts or omissions constituted incompetence;
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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;
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The representative be given notice and a reasonable opportunity to respond.
[21] The onus lies with the Applicant to establish both the incompetence of the former counsel and the miscarriage of justice as a result. Further, as the Respondent submits and I agree, the Applicant must refute the strong presumption that the counsel’s conduct fell within the wide range of reasonable professional assistance: Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17; Mckenzie v Canada (Citizenship and Immigration), 2015 FC 719 at para 58.
[22] In the case before me, the RAD appropriately considered all three elements of the tripartite test. It noted that the Applicant followed the Practice Notice – Allegations Against Former Counsel [Practice Notice] by putting most of his allegations to former counsel and obtaining their reply. Noting that the Applicant failed to provide a copy of his memorandum and a link to the Practice Notice, the RAD nevertheless found the former counsel did obtain sufficient information in order to respond to most of the allegations, and where this was not the case, this was noted and considered by the RAD.
[23] The RAD considered the specific allegations the Applicant made against his former counsel: a) counsel failed to adequately prepare the Applicant for the RPD proceeding; b) counsel failed to prepare the documents for the hearing; c) counsel’s actions at the hearing showed incompetence; and d) counsel misrepresented himself about where he practised law. The RAD provided detailed analysis of the evidence and reasons for finding the allegations not made out. Among other things, the RAD provided reasons for preferring the response of the former counsel indicating efforts to schedule meetings with the Applicant and former counsel’s evidence in the form of an email confirming a scheduled meeting. The RAD also pointed to the Applicant’s testimony at the RPD hearing indicating that he did not tell the former counsel about documentation that he alleges counsel should have prepared.
[24] While the Applicant continues to assert that he received inadequate representation from his former counsel, and that the RAD erred in its insufficient assessment, the Applicant fails to point to any specific error in the RAD’s findings to substantiate his assertion.
[25] At the hearing before me, the Applicant raised several new points to argue that the former counsel failed to abide by the rules of disclosure before the Immigration and Refugee Board [IRB]. The Applicant pointed to the letter from former counsel stating that he phoned the Applicant and his interpreter over the phone on October 10, 2023, eight days before the RPD hearing, and discussed the Basis of Claim [BOC] form and the supporting documents that we could use in support of the Applicant’s claim. The Applicant submitted that since the IRB rules require disclosure at least ten days before the hearing, calling the Applicant eight days before the hearing would not have given the Applicant enough time to submit new documents.
[26] I reject the Applicant’s new argument for three reasons. First, the argument was never put before the RAD; the Applicant cannot rely on it now to impugn the RAD’s finding. Second, I note the letter from counsel indicated that he asked the Applicant “multiple times about any potential documents that he could provide to support his claim”
and the Applicant provided him with only the medical note, which former counsel included in the disclosure package. In other words, the former counsel was not relying on the one phone call on October 10 as the only instance to request documents from the Applicant. Third, the Decision reveals that the RAD considered the former counsel’s explanations as contained in the letter before finding his evidence more compelling. The Applicant is improperly asking the Court to reweigh the evidence.
[27] Given that the Applicant bears the onus of establishing incompetence of former counsel, and given the RAD’s detailed analysis in refuting the Applicants’ allegations, I find the Applicant failed to discharge his onus of demonstrating that the RAD erred in finding his allegations of incompetent counsel were not made out.
B. The RAD did not err in refusing to admit the arrest warrant as new evidence
[28] The Applicant submits that the RAD erred by rejecting the arrest warrant as new evidence. He submits that the RAD’s decision was unreasonable and did not adequately consider the circumstances that prevented him from presenting the warrant earlier. The Applicant raises two main arguments in this regard.
[29] First, the former counsel failed to inform him the importance of obtaining and submitting this document during the RPD proceeding and a claimant should not be penalized for the counsel’s failure. The Applicant cites Singh v Canada (Minister of Citizenship and Immigration), 2016 FCA 96 and Raza to assert that new evidence should be considered in light of the circumstances surrounding its unavailability. Once he became aware of its relevance, the Applicant promptly obtained and submitted the warrant, demonstrating that the document was not intentionally withheld.
[30] Second, the RAD rejected the warrant based on speculative credibility findings. The RAD suggested that the timing of the warrant’s submission was suspicious, implying that the warrant might have been fabricated or obtained specifically to bolster the appeal with no evidence to support this speculation.
[31] I reject the Applicant’s arguments.
[32] This Court has confirmed as reasonable, the RAD’s rejection of new evidence on the basis that the timing of the evidence was “fortuitous:”
see, for instance, Liaquat v Canada (Minister of Citizenship and Immigration), 2024 FC 1950 at para 37.
[33] In the case before me, while the RAD noted the timing of the arrest warrant submission, being within days after the Applicant’s refugee claim was denied, as one reason for rejecting the new evidence, the RAD made no credibility finding about the document itself, contrary to the Applicant’s argument. Rather, the RAD pointed to the lack of reasonable explanation provided by the Applicant for any change in circumstances allowing him to obtain the document at that time, or why he knew the importance of providing it to his counsel for the appeal but not for the refugee claim. The RAD also noted the Applicant did not provide any evidence that he could not have engaged a counsel in Türkiye to obtain the document before the RPD decision. It was based on the totality of these findings that the RAD concluded it was more likely that the Applicant chose not to obtain and submit the document until after his claim was denied.
[34] Moreover, the RAD provided four additional reasons for rejecting the warrant as new evidence:
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First, the RAD pointed to a medical document that the Applicant submitted in support of his claim, showing he knew and did take action to obtain documents.
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Second, the RAD noted that the Applicant had a hearing before the RPD prior to retaining counsel, at which time he told the RPD that he believed the hearing was just to submit documents. The RPD member then advised the Applicant the process for translating and submitting documents.
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Third, the RAD noted the Applicant confirmed that his BOC form was translated to him. The BOC specifically refers to documents in support of the claim can include police documents, suggesting that the Applicant was aware an arrest warrant should have been obtained and submitted.
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Fourth, the RAD noted the Applicant’s former counsel stating that he asked the Applicant multiple times any potential documents he could provide and provided an email showing the Applicant providing one document to that counsel.
[35] Other than disputing the RAD’s comment about the timing of the submission of the warrant, the Applicant makes no attempts to challenge the remainder of the RAD’s analysis. I find the RAD’s findings reasonably supported by the evidence before it and I find no reviewable error arising from these findings.
[36] The application for judicial review is dismissed.
[37] There is no question for certification.
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