REASONS AND JUDGMENT

I. Overview

[1] The Applicant in this matter seeks judicial review of a negative Pre-Removal Risk Assessment [PRRA] decision of an Immigration, Refugees and Citizenship Canada officer, dated October 24, 2024 [Decision]. The deciding officer [Officer] determined that, for lack of sufficient credible evidence, the Applicant had not established that he was a Convention refugee or a person in need of protection under section 96 or section 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[2] The Applicant submits that their former counsel provided inadequate representation, as they failed to advise the Applicant as to, and to obtain and submit with his PRRA application, the evidence and supporting documents required to substantiate his claims of fear and alleged harm in Peru. As such, he contends that the former counsel’s misconduct subjected him to a breach of procedural fairness, as it led to the Officer’s finding that the Applicant had provided insufficient evidence to credibly establish that he would face persecution or, on a balance of probabilities, a risk to his life, of torture or of cruel and unusual treatment or punishment.

[3] For the reasons that follow, I dismiss the application.

II. Background

[4] The Applicant is a citizen of Peru. He alleges that he fears harm in that country from the Tren de Aragua gang, which he states had attempted to extort the cell phone and computer accessory shop that he had operated in the city of Lima, events that led him to flee to Canada in 2023.

[5] I note that the Applicant has previously sought asylum in Canada. In 2005, the Applicant made a different refugee claim, which was rejected by the Immigration and Refugee Board for lacking credibility. The Applicant was then able to obtain permanent residence through a spousal sponsorship, but was later found inadmissible to Canada for misrepresentation, as he had failed to disclose past criminality in the United States. He was subsequently removed from Canada by Deportation Order on July 17, 2014. On October 18, 2015, the Applicant re-entered Canada under an alias, but was eventually reported under IRPA subsection 44(1) in 2018. A warrant was issued, as the Applicant did not appear for his Minister's Delegate Review Interview in 2018, but instead apparently left Canada to return to Peru.

[6] The Applicant states that after he left Canada, he started a storefront business in Lima, Peru selling cell phones and computer accessories. He alleges that a group of men from the Tren de Aragua gang began demanding protection money and extorted him. He claims that when he refused to continue making payments, he was attacked and that he closed his business and fled Peru for Canada, arriving on January 23, 2023.

[7] On March 30, 2024, the Applicant was arrested on DUI charges and then transferred to immigration detention. On April 2, 2024, he had a first detention review hearing, after which he retained his former counsel [Former Counsel] to represent him on his second detention review on April 9, 2024. Following this, he was released from detention and subsequently submitted a PRRA application with the assistance of Former Counsel, in which he asserted that he faced persecution or risk to his life or of torture or cruel and unusual treatment or punishment, were he to return to Peru.

[8] The PRRA Officer issued their Decision on October 24, 2024. The Officer concluded there was no reasonable possibility of persecution per s 96 of IRPA, and that nor did the Applicant face a personalized risk to his life or of cruel and unusual treatment or punishment, or of a danger of torture, as per paragraphs 97(1)(a) or (b) of IRPA. The Decision turned on the issue of the credibility of the Applicant’s claims of danger, with the Officer holding that the Applicant had provided insufficient evidence to establish these claims. The Decision reads, in part:

The applicant has provided little evidence to substantiate his claims of fear and alleged harm in Peru. There is little evidence on file to demonstrate that the applicant would be at risk of harm under sections 96 or 97 of IRPA. The onus is on the applicant to provide sufficient credible evidence to demonstrate that he may face harm in Peru. The applicant has provided insufficient evidence to persuade me that he would face more than a mere possibility of risk under any of the Convention grounds as set out in Section 96 of the Immigration and Refugee Protection Act (IRPA) if he returned to Peru. Further, the applicant has provided insufficient evidence that he would face, on a balance of probabilities, a risk of torture, a risk to life or a risk of cruel and unusual punishment as described in Section 97(1) (a) or (b) of IRPA he was to return to Peru. I find that the applicants are [sic] neither Convention Refugees nor persons in need of protection. Therefore this PRRA application is denied.

[9] The Applicant now judicially reviews this Decision, arguing that but for the incompetent representation of his Former Counsel, the outcome of his PRRA application would have been different.

III. Issue and Standard of Review

[10] The issue at play in this matter is whether the decision under review was tainted by procedural unfairness, resulting from the alleged incompetence of the Applicant’s Former Counsel.

[11] This Court has held that, strictly speaking, no standard of review applies to the question of incompetence of counsel raised for the first time on judicial review: El Khatib v Canada (Citizenship and Immigration), 2025 FC 49 at para 5 citing Brown v Canada (Citizenship and Immigration), 2024 FC 105 at para 16 and Discua v Canada (Citizenship and Immigration), 2023 FC 137 at para 31. However, the Court’s review is akin to the correctness standard: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54 – 56 [Canadian Pacific Railway Company]; Ramanathan v Canada (Attorney General), 2023 FC 1029 at para 41; Ayaz v Canada (Citizenship and Immigration), 2026 FC 598 at para 22. This requires the Court to analyze whether the procedure followed was fair, having regard to all the circumstances: Kawasaki v Canada (Attorney General), 2025 FC 936 at para 13 citing Canadian Pacific Railway Company at para 54. The reviewing court determines whether the applicant “knew the case to meet and had a full and fair chance to respond”: Elykova v Canada (Attorney General), 2025 FCA 97 at para 5 citing Canadian Pacific Railway Company at para 56.

IV. Analysis

A. The Applicant has not established a breach of procedural fairness or natural justice

Allegations of incompetent representation

[12] As noted, the Applicant argues that he was provided with incompetent representation by his Former Counsel. He states that after he had retained this party, it had been difficult to reach them or receive communication. He essentially alleges that the Former Counsel did not properly advise and represent him in his PRRA application, as they: 1) submitted the Applicant's PRRA application with only a simple type-written narrative that was missing details and failed to include critical information and written submissions; and 2) failed to gather and submit certain supporting documents that would have been helpful establishing his claims. The Applicant alleges that he told Former Counsel “that there were documents supporting his narrative, but they were in Peru”, and that Former Counsel did nothing with this information. In particular, he now states that these documents were police reports that his mother had filed with the Peruvian authorities about threats from the gang relating to the protection money debts owed by the Applicant. The Applicant also states Former Counsel had him sign a blank copy of the PRRA form while he was in detention, prior to his April 9, 2024 release, and told him that they would prepare the application, but that he was never provided with a completed copy of the PRRA forms for his review.

[13] Former Counsel denies the allegations and has submitted three separate documentary responses. They essentially state that it was the Applicant who was unresponsive in their dealings, and that they did not have the Applicant sign a blank PRRA for them to fill in later. Former Counsel notes that it was only after the Applicant’s release from detention that he came to their office, where they both had worked on his forms together, with the Applicant providing answers to the form’s questions and even writing some answers on the form himself. Counsel says that that this corresponds with the fact that the PRRA form is signed and dated April 19, 2024. They state that the Applicant originally came into their office a day after he was released from detention but said he did not have the funds to pay for legal assistance with the PRRA, and that he would return with those later. They assert he then returned only two days before the initial deadline for the PRRA to be submitted, and never mentioned anything about the Peruvian police reports, but rather told Former Counsel only that the police there would not protect him as they were corrupt. They further assert that, in any case, it was the Applicant’s responsibility to obtain any documentation that he wanted to submit from Peru, and that they had no way to secure such documents independently, even if they had known about these. Former Counsel states that a few days after the PRRA application was submitted, the Applicant had called to ask if that was done, and that after he had been told it was, he disappeared and did not return calls from Former Counsel’s office.

Determination

[14] Upon review of the record, I cannot find that the test for incompetence of counsel amounting to procedural fairness has been satisfied in this matter.

(1) Legal Framework

[15] By way of background, incompetence of counsel amounting to a breach of procedural fairness involves a tripartite conjunctive test. The analysis also begins with the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance" and incompetence of counsel resulting in a breach of natural justice will occur only in “extraordinary circumstances”: Rendon Segovia v Canada (Citizenship and Immigration), 2020 FC 99 at para 22; Memari v Canada (Citizenship and Immigration), 2010 FC 1196 at para 36.

[16] The three criteria, which must all be met, are for an applicant to: (1) corroborate the allegation by giving notice to the former counsel and providing them with an opportunity to respond; (2) establish that the former counsel’s act or omission constituted incompetence, without the benefit and wisdom of hindsight (also called the performance component); and (3) establish that the outcome would have been different but for the incompetence (also called the prejudice component): Rady v Canada (Citizenship and Immigration), 2024 FC 1733 at para 15; Reyes Contreras v Canada (Citizenship and Immigration), 2023 FC 1453 at para 38 [Reyes] citing Abuzeid v Canada (Citizenship and Immigration), 2018 FC 34 at para 21; Badihi v Canada (Citizenship and Immigration), 2017 FC 64 [Badihi] at para 17, citing Galyas v Canada (Citizenship and Immigration), 2013 FC 250 at para 84.

[17] Further, to demonstrate incompetence, “[t]he burden is on the applicants to establish the performance and the prejudice components of the test to demonstrate a breach of procedural fairness”: Reyes at para 39 quoting Badihi at para 18.

[18] In addition, the Applicant must follow the Court’s Protocol, Allegations against Counsel or other authorized representative in Citizenship, Immigration and Protected Person cases before the Federal Court (March 7, 2014), now included in paras 49-57 of this Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (December 31, 2025). This includes the obligation to notify former counsel of the allegations against them and seek their response.

(2) Analysis

[19] I find that the first element of the tripartite test is met. Former Counsel was advised of the allegations and provided with an opportunity to respond. As noted, they did so, providing three detailed reply documents, which are included in the Applicant’s Record.

[20] With respect to the second element of the test, in which the Applicant must demonstrate that Former Counsel’s conduct was negligent or incompetent, the Applicant is required to discharge a two-fold burden. They must establish the facts on which they rely in impugning the conduct of the Former Counsel and must further establish that the alleged conduct fell below the standard of reasonable professional assistance or judgment: see R v GDB, 2000 SCC 22 at para 27 [GDB].

[21] In doing so, the Applicant is required to meet a high threshold to establish the performance component of an allegation of ineffective assistance, given the strong presumption that the former counsel’s conduct fell within the wide range of professional assistance: GDB at para 27. This Court’s jurisprudence has clearly stipulated that a reviewing court is to be careful to avoid second-guessing the tactical decisions of counsel and that the wisdom of hindsight is to have no place in the assessment. Moreover, expressions of general dissatisfaction with counsel’s conduct are insufficient; the allegation of negligence or incompetence must be specific and clearly supported by the evidence: Shirwa v Canada (Minister of Employment and Immigration), 1993 CanLII 17477 (FC), [1994] 2 FC 51 (CA) at para 12.

[22] In the current matter, the central point of contention between the Applicant and his former counsel relates to the allegations that Former Counsel failed to gather and submit the documentary police report evidence from Peru, despite being advised of this by the Applicant, and thus that Former Counsel had prepared an insufficient PRRA application that led to the Officer’s negative Decision. As noted above, Former Counsel disputes this, asserting the Applicant came to him at the last moment, did not tell him about any police reports, and that the claim that they had the Applicant sign a blank form, which counsel later filled out was untrue, as the Applicant had specifically worked on that form with them when he came to the office.

[23] I note that counsel for the Respondent points to a series of inconsistencies in the Applicant’s account. They highlight that while the Applicant states he never received a completed copy of the PRRA Application, a copy of this document is nonetheless in the Applicant’s record. They note that while the Applicant has sworn in his affidavit that he signed and dated the blank form while he was in detention, the Applicant was released from detention on April 9, 2024, but the form in the record is dated April 19, 2024. They also note that it was consistent with the Former Counsel’s account that the form would have been signed then, since Former Counsel had not agreed to work on the file until after the Applicant was able to provide payment. Respondent’s counsel points out that supporting this account is the fact that it is not only the PRRA Application which is dated and signed April 19, 2024, but also the attendant Counsel Representation form. Respondent’s counsel also cautions that the Court is not to blindly accept a statement in an affidavit as simply establishing the matter claimed. Rather, they state that the sworn statement by the Applicant should be weighed in light of the evidence as a whole, and considering the Applicant’s “repeated history of dishonesty with and in the Canadian immigration system and [that he has] breached other laws of Canada”. They also point out that the Applicant has not filed a complaint against Former Counsel with the Law Society of Ontario.

[24] Respondent’s counsel also points out that the Peruvian police reports did not physically exist at the time of the April 19, 2024 PRRA Application, as the Reports record having been printed by the authorities on April 2, 2025. In response to this, Applicant’s counsel argues that the police reports list the date of the mother’s initial complaint as February 14, 2024, and that they could have been generated earlier by the authorities and submitted with the Application, had Former Counsel been diligent. Respondent’s counsel, in turn, notes that the Applicant’s evidence indicates that he never specifically told Former Counsel about the police reports, but, at best, had merely said that useful documents existed in Peru. Respondent’s counsel notes that even if the veracity of the police reports are taken at face value, there is no evidence that the Applicant was not aware of his mother's complaints before the PRRA Application was submitted, and that it is not reasonable that he would not have directly told his Former Counsel about the police reports. Respondent’s counsel notes that question 51 in the PRRA Application form specifically asks what protection the Applicant sought from the authorities in his country, and that rather than mentioning the police reports made by his mother, the Applicant had instead written only: “Unable to seek protection from the police because of their ties to the gangs who threatened me.” Respondent’s counsel also notes that this is consistent with the account of Former Counsel. They argue that all three of the mother’s police complaints (dated February 14, 2024, March 22, 2024 and August 24, 2024, respectively) were suspiciously made only after the Applicant had departed to Canada. Finally, Respondent’s counsel points out that the Applicant’s affidavit, which was sworn on February 3, 2025 paradoxically attaches as an exhibit one of the complaints from his mother, which itself records that it was first generated and printed by the authorities months later, on April 2, 2025.

[25] Ultimately, this matter involves competing accounts offered by the Applicant and former counsel. In such circumstances, I note the words of my colleague, Justice Fothergill, in Oppong-Sagoe v Canada (Citizenship and Immigration), 2025 FC 1154: “The burden of proof to demonstrate the incompetence of counsel is a heavy one. The evidence must be so clear and unequivocal and the circumstances so deplorable that the resulting injustice caused to the claimant is blatantly obvious”: para 26. Justice Fothergill concluded in that decision that “the evidence of incompetence consists of counsel stating one thing and the Applicant stating another. This is insufficient to meet the high threshold of incompetence”, citing Vardalia v Canada (Citizenship and Immigration), 2022 FC 300 at paras 35-38, citing Khan v Canada (Citizenship and Immigration), 2016 FC 855. Though Former Counsel did not particularly submit an affidavit in this matter, I nonetheless find that the case at bar is similar, and ultimately, I come to the same conclusion. Though it is clear that the Applicant’s former counsel did precious little on his behalf, and definitely failed to submit much of anything in the way of supporting evidence, it is not clear whether this was because of incompetence and lack of initiative on the part of Former Counsel, or because the Applicant had not alerted Former Counsel to the existence of the mother’s police reports and otherwise provided sufficient information. I also note that the multiple inconsistencies and contradictions in the Applicant’s account, especially in relation to the documents submitted, call into question their allegations as to incompetence.

[26] Given this, upon the record before me, and in the absence of clear evidence as to the exchanges between the Applicant and former counsel as to these matters, I find that the high bar of the second, performance, prong of the test has not been satisfied. As the tripartite test requires that all three of its requirements must be fulfilled, I therefore find that the Applicant has not established that he was subject to a procedural fairness violation due to incompetent counsel representation.

V. Conclusion

[27] For the foregoing reasons, this application for judicial review is dismissed. I note that the parties proposed no question for certification, and I agree that none arises.

JUDGMENT in IMM-24258-24

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There are no questions to be certified.

3. No costs are awarded.

"Darren R. Thorne"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: