Federal Court Orders Redetermination After Consultant’s Omission of Hardship Evidence in H&C Immigration Case Compromises Fairness

Federal Court Orders Redetermination After Consultant’s Omission of Hardship Evidence in H&C Case Compromises Fairness

Summary: On 2025-08-05, the Federal Court in Lin v. Minister of Citizenship and Immigration (2025 FC 1344, IMM-15924-24) held that an immigration consultant’s failure to submit any hardship evidence in a humanitarian and compassionate (H&C) application under IRPA s. 25(1) amounted to ineffective assistance and a breach of procedural fairness, warranting redetermination with new submissions. Date: 2025-08-05 | Source: Court Decision (Federal Court of Canada) | Program Affected: H&C (IRPA s. 25(1)) In a significant ruling for H&C applicants and representatives, Justice Turley granted judicial review after finding that a consultant’s omission of hardship evidence and submissions—a core component of any H&C case—fell below reasonable professional standards and compromised the fairness of the adjudicative process. The underlying application, involving Chinese-Argentinian applicants, had been refused after the officer repeatedly noted insufficient evidence on hardship relating to return to China and Argentina. The Court emphasized that prejudice need not be shown through a likelihood of a different outcome. Relying on Kanthasamy (2015 SCC) and aligned with recent Federal Court decisions (including Bailey 2025 FC and El Khatib 2025 FC), Justice Turley held that the applicants were deprived of a full opportunity to present their case, constituting a miscarriage of justice. The matter was remitted for redetermination with permission to file new evidence and submissions, and notably, no new H&C application is required—avoiding re-queuing. On the ineffective-counsel protocol, the Court exercised discretion to consider the allegations despite partial non-compliance, finding no prejudice to fact-finding and noting that former counsel conceded negligence. The Court applied the three-part test (El Khatib 2025 FC): (1) protocol notice sufficiently satisfied despite delays; (2) performance incompetent, rebutting presumptions of acceptability (GDB 2000 SCC); and (3) prejudice via fairness compromise, not outcome probability (Bailey 2025 FC). The husband was removed from the style of cause as statutorily barred; non-applicants (e.g., barred spouses) lack standing. The Court admitted late consultant correspondence and issued no certified question. Key points
- Ineffective assistance found where a consultant files no hardship evidence in an H&C submission.
- Procedural fairness is the focus; applicants need not show the decision would likely have differed.
- Redetermination ordered with new submissions allowed; no fresh H&C filing required.
- Protocol flexibility: Courts may consider ineffective-counsel claims despite partial protocol non-compliance when fairness is not prejudiced.
- Standing limited: Non-applicants, such as barred spouses, cannot proceed. Independent analysis: potential impacts
- Positive:
- Strengthens procedural safeguards in H&C, underscoring the centrality of hardship evidence.
- Offers practical relief by allowing redetermination with new evidence without re-queuing.
- Signals judicial flexibility in applying ineffective-counsel protocols where fairness would otherwise be undermined.
- Negative:
- May increase remittals and processing burdens for IRCC, potentially lengthening timelines.
- Raises professional liability exposure for immigration consultants and may prompt more ineffective-assistance challenges.
- Applicants still bear the onus to marshal robust hardship records; mere allegations of poor representation will not suffice. What to watch
- Whether IRCC updates guidance to emphasize hardship documentation in H&C files.
- Potential professional standards or training responses within the consultant community.
- Future Federal Court applications invoking fairness-based prejudice without outcome proofs.

Tags: Canada immigration, H&C, IRPA s.25, ineffective assistance, procedural fairness, Federal Court, Kanthasamy, Bailey, El Khatib, GDB, hardship evidence, immigration consultants, judicial review, redetermination, standing, administrative law