Undoing the damage done by an incompetent immigration consultant or lawyer

Act & Gavel

Author / Daniel Kingwell / Partner, Immigration Lawyer

When it comes to hiring counsel to represent you in a refugee claim, the decision can be bewildering. Of course, if you are a claimant having just arrived in Canada, and know no one, you are likely to rely on members of your community for advice, who may not have your best interests at heart. However, even if you are settled in Canada and asked to help a friend or relative find a lawyer or consultant, it is not at all clear how you should go about doing so.

The consequences of getting this wrong can be devastating. Just ask my client, “Tara”. Tara had come to Canada to make a refugee claim, fleeing threats from her community due to her sexual orientation. Unlike many other refugees, she had been to Canada many times before, and had family and friends here. When Tara expressed a fear of return to her family, they reached out to the community to find someone to represent her, and were referred to a counsel, “Mr Thompson”. They believed that Mr Thompson could assist her competently, because he had represented many other refugee claimants in Canada.

Unfortunately, he did not. Tara never felt comfortable with Mr Thompson. Careful preparation of the written statement is key to winning a refugee claim, and yet he did not advise her of this or help her explain fully and accurately all of the experiences she had had, including her failed efforts to seek police protection. Claimants must also document their case to the fullest extent possible, and depend on counsel to advise them of what evidence they should provide, but again, he did not help her do so. Lastly, claimants are expected to testify at their refugee hearing, and depend on their counsel to prepare them for what questions they will be asked, but he gave her no guidance before the hearing.

As a result, when the day of her hearing at the Refugee Protection Division finally arrived, Tara was totally unprepared. The Board Member tried her best to understand Tara’s case through questions, but Tara was confused, nervous, and testified in a disjointed stream of consciousness. While Tara felt relieved to finally be allowed to tell her story, and believed that the Member would understand, the Member could not follow her testimony. The Member was also concerned that Tara revealed many details of her problems in Jamaica that were not included in her initial statement, and as a result, felt that she was making these up. In addition, the Member was bothered by Tara’s failure to provide evidence available to her, including evidence of relationships, and of attempts to seek police protection.

As a result, the Member refused Tara’s refugee claim, finding that she was not credible. Unfortunately, Tara repeated her mistake and hired Mr Thompson again to represent her in her appeal to the Refugee Appeal Division. Not surprisingly, Mr Thompson made no effort to fix the problems, and did not explain why Tara had failed to properly present clear testimony and all relevant evidence. Tara’s refugee appeal was denied.

Luckily, Tara had one final appeal to the Federal Court, and hired new counsel – our firm – to represent her. In our arguments to the Court, we explained that she had been denied a fair consideration of her refugee appeal, due to Mr Thompson’s failure to properly represent her. On consent of the Minister, the Court allowed her appeal, and returned it to the Refugee Appeal Division for reconsideration.

On reconsideration, Tara was allowed to explain why she had failed to present clear testimony and evidence at the Refugee Protection Division. She was also able to present evidence to support her claim, including proof of her relationships, witness statements, and evidence of a police complaint. Unfortunately, the previous counsel’s mistakes continued to haunt her: while the Board Member agreed that she had been poorly represented by Mr Thompson, she nonetheless could and should have provided the evidence at that time, and so could not present it in her appeal. The Member also blamed Tara for her own poor testimony, finding that she should have been clear despite the poor initial representation. As a result, the Member refused her refugee appeal a second time. Tara was devastated.

Almost out of options, we filed one last appeal to the Federal Court, arguing that the Refugee Appeal Division Member should have accepted her reasons for failing to provide evidence or clear testimony. Thankfully, in a decision that strongly criticized both the Refugee Appeal Division and the previous counsel, the Court allowed her appeal and ordered the Refugee Protection Division to conduct a full re-hearing of her claim. The Court accepted that all of the problems she had in presenting her claim from the outset were caused by the poor representation of her initial counsel, and that fairness required she be given another chance. In particular, the Court was very concerned that she might be sent back to Jamaica to face serious harm or death, and ordered that she have a fair hearing before this could occur.

While Tara is thankful for the decision, she is also exhausted. After many years of legal battles, she will finally have a fresh, fair hearing of her claim. Properly prepared and with evidence in hand, there is an excellent chance that she will finally be granted refugee status and allowed to remain.

Had Tara hired better counsel at the outset, she might already be a permanent resident and well on her way to becoming a Canadian citizen. Nonetheless, Tara is one of the lucky ones: while she has been given a second chance, countless claimants have been refused and deported to face danger in their home country, all because they hired the wrong person to represent them.

Whether you are a refugee claimant, or have another legal immigration issue, a few lessons can be learned from Tara’s experience when hiring a counsel. First, do your due diligence. Ask to speak to former clients. Read any online reviews. Find out if the counsel has a history of discipline. And above all, trust your instincts. I have heard from many clients that they never felt comfortable with their previous counsel, and could see that he or she was not interested in working on or understanding their case,
but they stuck with the counsel because they had already paid their fee, and hoped that it would all work out. Your life and your future in Canada is worth more than any money you have lost.

Clients have also often told me that they felt that they could wait and hire a better lawyer to win an appeal if they lost their initial claim or application. This can be a terrible mistake. It is far easier to a succeed in the initial presentation of a case, than to win an appeal of case that was poorly prepared. In most appeals, your ability to present new evidence is limited, and your poorly prepared testimony will follow you. At best, you have wasted time and money; at worst, your case will be irreparably damaged. Hiring proper counsel at the outset can be the difference between winning and losing your case, whether or not you appeal.

In the end, in immigration law as in life, an ounce of prevention is truly worth a pound of cure.

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