By Sukhram Ramkissoon

According to a recent Federal Court decision, a mother and her three children share a relationship with her spouse Mr. X, a permanent resident of Canada. Mr. X was granted refugee protection in Canada in 2015 and permanent residence in 2017; he currently resides in Canada while his family spouse resides in India.

After receiving permanent residence, he filed a family class sponsorship application to sponsor his family, which was refused on the grounds of insufficient evidence provided to support the relationship between Mr. X and his family, who were listed as dependents in the application. As such, his family was given an opportunity to undergo DNA testing.

On October 17, 2017, the officer found that Mr. X’s family did not meet the requirements for permanent residence because they did not respond to the procedural fairness letter nor complied with its DNA testing requirement. The officer rejected their applications

On February 16, 2022, nearly five years after the decision was issued, the family filed an application for Leave and Judicial Review to the Federal Court, alleging incompetence on the part of their former immigration consultant. The family alleged that they were only informed of the decision to refuse their permanent resident applications in January 2022. They claim that they only learned of the decision when Mr. X received a response from Immigration, Refugees and Citizenship Canada (IRCC) in December 2021 after requesting a status in his matter.

In their judicial review application, the family alleged that there was a breach of natural justice as a result of the incompetence of their consultant because she failed to notify the Visa Officer of their intention and willingness to comply with the procedural fairness letter and undergo DNA testing – the only reason why the officer refused the permanent residence applications.

In their bid to have the negative decision set aside, their counsel argued and summarised the framework of analysis for allegations of incompetence on the part of the immigration consultant and quoted several Court decisions with respect to the same.

The Court in its ruling addressed each element of this framework for the case at bar. The judge ruled that continuing with the framework of the “incompetence” analysis, to satisfy the performance component, an applicant must establish that:

• they relied on the conduct of their consultant and
• that this conduct fell below the standard of reasonable professional assistance or judgment.

The family submitted that they relied on their consultant to facilitate communications with the officer regarding their permanent residence applications. The family argued that their consultant not only failed to inform the officer of the family’s intention and willingness to undergo DNA testing, which was the only reason why the officer refused the family’s applications, but also then failed to inform them of the subsequent decision.

In support of the family’s allegations, they submitted to the Court a decision by the College of Immigration and Citizenship Consultants (CICC) Discipline Committee dated September 28, 2022, suspending the consultant’s license as a Regulated Canadian Immigration Consultant until all the disciplinary complaints against her were resolved or adjudicated, citing “serious, systemic and recurring problems” with the consultant’s practice, including “failure to file immigration applications, failure to meet deadlines, failure to communicate decisions of issuing authorities to her clients and filing immigration applications containing false information.”

The CICC is the regulatory body for Immigration Consultants and their Discipline Committee has the ability to suspend or revoke an immigration consultant’s license to practice, amongst other jurisdictional abilities.

In short, the judge ruled that they were satisfied that the framework of analysis applied in this case and found (i) the family relied on the consultant to facilitate communications with the officer regarding their permanent residence applications, and (ii) that the consultant failed to do so, falling short of the standard of reasonable professional assistance. The evidence supported that up until January 14, 2022, the family and Mr. X were not aware of the decision, since it was first sent to a defunct email address in 2017 and again in 2021.

As the family counsel stated, there is a simple outcome that will arise from the granting of this judicial review. The family will simply resubmit new DNA tests along with Mr. X who had already submitted one – albeit late after he was unaware that the family’s file had been closed. At that point, if the tests return positive, indicating that Mr. X is indeed the father of the three dependent applicants, they and their mother will be issued visas as dependents, subject to any other admissibility concerns that might arise. If the tests are negative vis-à-vis a family relationship, the application will simply be refused.

In light of the circumstances, the family’s Judicial Review application was allowed.

SUKHRAM RAMKISSOON is a member of CICC and specializes in Immigration Matters at #3089 Bathurst Street, Suite 219A Toronto, Ontario Phone 416 789 5756.