Ortiz Saavedra v. Canada (Citizenship and Immigration) — Federal Court dismissed judicial review of denied Pre-Removal Risk Assessment, finding applicant failed to prove inadequate counsel representation

The Court’s Holding

Justice Thorne dismissed the application for judicial review. The court applied the tripartite test for establishing incompetence of counsel as a breach of procedural fairness: (1) notice to former counsel and opportunity to respond; (2) proof that counsel’s conduct fell below the standard of reasonable professional assistance; and (3) evidence that the outcome would have been different but for the incompetence. Although the first element was satisfied, the court found the applicant failed to meet the high threshold for the performance component.

The court identified significant inconsistencies in the applicant’s account that undermined his allegations. Notably, although the applicant claimed he never received a completed PRRA form, a copy existed in the court record, dated April 19, 2024—ten days after his release from detention on April 9. The police reports the applicant alleged counsel should have submitted were not printed by Peruvian authorities until April 2, 2025, months after the PRRA application was filed. Furthermore, the applicant’s sworn account that he signed a blank form while in detention contradicted his own documentary evidence and the former counsel’s consistent account that the form was completed together after his release and payment arrangement was made.

In the absence of clear evidence regarding actual communications between the applicant and counsel, the court could not determine whether counsel’s minimal submissions resulted from incompetence or from the applicant’s failure to adequately inform counsel of the police reports’ existence. The court emphasized that mere conflicting accounts, without clear and unequivocal evidence, are insufficient to overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Key Takeaways

• Establishing incompetence of counsel requires meeting all three conjunctive elements: notice, performance (conduct below standard), and prejudice (different outcome would have resulted).
• The threshold for proving the performance component is very high due to the strong presumption favoring counsel and the prohibition on second-guessing tactical decisions with hindsight.
• Conflicting accounts between applicant and counsel are insufficient to meet this burden without clear, unequivocal, and specific evidence of negligence or incompetence.
• Applicants bear significant responsibility for communicating case facts and evidence needs to their counsel; mere allegations that documents “exist somewhere” do not establish that counsel had notice of specific evidence.
• Courts will scrutinize inconsistencies in an applicant’s account, particularly when corroborated by documentary evidence, and may consider an applicant’s history of dishonesty in immigration proceedings.

Why It Matters

This decision reinforces the formidable barriers applicants face when challenging PRRA decisions based on alleged counsel incompetence. By requiring clear, unequivocal proof rather than accepting competing narratives at face value, the court protects counsel from unfounded allegations while placing substantial evidentiary burdens on applicants. The ruling has significant implications for how courts assess credibility in counsel competence claims, particularly when applicants have demonstrated prior dishonesty in immigration matters.

The decision also clarifies that applicants cannot succeed on vague allegations that counsel “should have known” about documents without demonstrating they specifically communicated the existence and importance of such evidence. This standard may disadvantage unrepresented applicants or those with language barriers, but it reflects the court’s view that counsel cannot be expected to chase down potential evidence that clients have not clearly identified.