Representation deficient and resulted in miscarriage of justice – judge


Immigration Matters  By: Sukhram Ramkissoon

Representation deficient and resulted in miscarriage of justice – judge

 The Federal Court of Canada  has recently set aside a negative decision on an application for humanitarian and compassionate (H&C) review on behalf of a 59 year old citizen of Grenada who has lived in Canada ” out of status” for more than 20 years.

The negative decision on his H&C application made by an immigration officer was set aside and his application was granted a further review by another immigration officer. I will refer to the applicant as David (not his real name.)

David who has a severe speeech impediment, had retained a well-known immigration consultant, who was a former Senior Immigration Officer, to assist him with his application. His brother accompanied him  to meetings with the consultant who I will refer to as his counsel and answered all the questions which his consul had asked with respect to the application.

 Acting on  his (David’s) brother’s instructions, his counsel did not include in the H&C application information about David’s long-term common-law relationship with a woman in Canada, or his role in the life of the woman’s granddaughter.   His counsel also omitted information regarding David’s employment in Canada, and evidence of his speech impediment or any possible cognitive impairment.

After David’s application was turned down, he (David) retained a lawyer to file an Application for Leave and Judicial Review in the Federal Court. The lawyer gave the counsel notice of his intention to argue before the Court that the representation he provided to David in his H&C application was inadequate.

In  his response to the notice,  David’s counsel’s did not dispute the essential allegations against him. Instead, he   “deflected any blame” to David’s brother, whom he described as the “villain” in the situation.

In the negative H&C decision, the immigration officer acknowledged that David has an extended family network in Canada, including his niece’s daughter who is teaching him to read and write. The Officer ascribed only moderate weight to this, noting that David also has a sister in Grenada on whom he could rely for emotional support.

The officer noted David’s ability to maintain employment and support himself in Canada, despite not being able to read or write. He also agreed  that the high unemployment rate in Grenada may make it difficult for him to find work in that country, particularly given his speech impediment and the lack of educational opportunities. Nevertheless, the officer found that David had presented insufficient evidence of his degree of impairment or the absence of resources in Grenada.

The officer also attributed low value to David’s lengthy stay in Canada, observing that this was not due to matters beyond his control.  He also noted that David had provided little evidence that he had ever worked legally or paid taxes in Canada.

David’s lawyer challenged both the fairness and the reasonableness of the officer’s decision.   In preparation for application for leave and judicial review, David’s lawyer arranged for him to undergo a psychological assessment which was filed with his submissions in the court application.  The assessment indicated in part, that “given David’s struggles with language, memory, and abstract thought, it is extremely unlikely that he would have been able to understand and appreciate the nature of the legal proceedings associated with his immigration case without the assistance of a designated representative.”

In the written submissions that his counsel filed in support of the H&C application, he did not mention any possible cognitive impairment, this, not did the counsel enquire about David’s brother authorization to speak on his behalf.  Nor, did the counsel explore the brother’s reasons for not wanting to disclose his common law relationship.

The  judge ruled that in light of this conclusion, regarding the inadequacy of David’s representation respecting his H&C application, it is unnecessary to consider other grounds of the appeal.  

In allowing the judicial review, the  judge pointed out that the submissions prepared by David’s consultant omitted any mention of his  common-law relationship with a woman in Canada; his relationship with the woman’s granddaughter; information regarding his employment in Canada, including reference letters from his employers; and evidence of his speech impediment.

The judge further stated that despite David’s difficulty in communicating, the consultant did not examine his capacity to understand and answer questions.  The  judge also commented that the written submissions of the consultant were rife with grammatical errors and extraneous arguments.

The judge said that he was persuaded that David’s counsel’s representation in the H&C application was clearly deficient and resulted in a miscarriage of justice.

The application was  therefore allowed and the matter remitted to a different immigration officer for reconsideration.

Good luck, David.

 

SUKHRAM RAMKISSOON   is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario.  Phone 416 789 5756.