Background
Jing Lu, a 48-year-old Chinese citizen, and her son Yuchun Sun applied for permanent residency under Ontario’s Immigrant Nominee Program in November 2022. They retained an immigration representative to manage their application. In September 2024, an Immigration, Refugees and Citizenship Canada (IRCC) officer refused their PR application, finding misrepresentation under the Immigration and Refugee Protection Act. The specific basis: the son failed to disclose a visitor visa that was refused in 2023.
The applicants challenged the officer’s decision by seeking judicial review. Their central claim was that their immigration representative had acted incompetently, causing them to omit the visa refusal, and that “but for” this incompetence, their application would have been approved. The applicants argued the representative failed to adequately communicate the requirement to disclose all previous visa refusals despite receiving three procedural fairness letters from the officer that explicitly flagged this issue.
The Court’s Holding
Justice Ahmed dismissed the application for judicial review, holding that the applicants failed to satisfy the high threshold for establishing incompetence of legal representation. The court applied a three-part conjunctive test: (1) the representative’s acts or omissions constituted incompetence; (2) a miscarriage of justice resulted (reasonable probability the outcome would differ); and (3) the representative was given reasonable opportunity to respond. The applicants met none of these elements.
The court found substantial evidence that the applicants were adequately alerted to verify their documents. The applicants signed the Background Declaration form three times, each time declaring the information “truthful, complete and correct.” Text messages showed the representative’s assistant repeatedly requested the applicants to “verify,” “check,” or “confirm” documents before submission. After the third procedural fairness letter, the assistant reviewed the form directly with the son and verified information over the phone. Crucially, the court found no evidence that the applicants had disclosed the visa denial to their representative—there was no basis to conclude the representative knew about it.
The court emphasized that applicants have a duty to ensure documents they sign are correct, and that providing the procedural fairness letters directly to the applicants would not have changed the questions on the Background Declaration form itself. The court rejected speculation that further explanation from the representative would have made a difference, noting the evidence showed the representative’s team actively sought verification of the information.
Key Takeaways
- Applicants bear personal responsibility for verifying the accuracy and completeness of forms they sign in immigration applications, even when represented by counsel.
- The threshold for establishing incompetence of immigration representatives remains high; mere miscommunication or lack of emphasis does not suffice without evidence the representative knew of material facts.
- Procedural fairness obligations on the officer do not eliminate the applicant’s independent duty to review and correct their own disclosures, particularly when multiple opportunities are provided to address deficiencies.
- Clients who freely choose representation must accept the consequences of that representation, subject only to narrow exceptions for demonstrated incompetence causing miscarriage of justice.
Why It Matters
This decision reinforces that immigration applicants cannot rely solely on their representatives to catch omissions or errors, even in complex disclosure requirements. While the IRCC officer here went above and beyond by issuing three escalating procedural fairness letters, the court made clear that an applicant’s duty to disclose material facts and verify application forms is non-delegable. For immigration practitioners, the decision underscores the importance of working directly with clients on verification steps, as representation does not shield applicants from personal accountability for the truth and completeness of their submissions.
The ruling also sets a cautionary precedent for applicants relying on representatives to manage procedural requirements. A finding of incompetence requires not merely poor communication or misunderstanding, but a clear failure that causes demonstrable prejudice. The decision emphasizes that in immigration law, due diligence by the applicant is expected and required, particularly where disclosure forms explicitly call for truthfulness and completeness.