Federal Court rules against Peruvian citizen’s challenge of pre-removal risk assessment decision
In a Peruvian citizen’s challenge against an unfavourable pre-removal risk assessment (PRRA) decision, Canada’s Federal Court held that he failed to meet the test for counsel incompetence and thus failed to establish a breach of procedural fairness or natural justice.
In Ortiz Saavedra v. Canada (Citizenship and Immigration), 2026 FC 952, the applicant alleged that he:
- sold cell phones and computer accessories through a storefront business in Lima, Peru
- experienced an attack when he refused to keep paying protection money to Tren de Aragua gang members who were trying to extort him
- closed his shop and fled to Canada, where he arrived on Jan. 23, 2023
On Mar. 30, 2024, authorities arrested the applicant on driving under the influence (DUI) charges and placed him in immigration detention.
The applicant had his first detention review hearing on Apr. 2, 2024, then retained his former counsel to act on his behalf at his second detention review hearing on Apr. 9, 2024. Authorities eventually released him from detention.
Pre-removal risk assessment
In a PRRA application prepared with former counsel’s help, the applicant claimed that returning to Peru would expose him to persecution, a risk to his life, torture, or cruel and unusual treatment or punishment.
On Oct. 24, 2024, a PRRA officer found that the applicant failed to provide sufficient, credible evidence to establish that he was:
- a Convention refugee
- a person in need of protection under s. 96 of the Immigration and Refugee Protection Act, 2001 (IRPA), because of a reasonable possibility of persecution
- someone needing protection under s. 97(1)(a) or (b) of the IRPA due to a personalized risk to his life or a risk of cruel and unusual treatment or punishment or a danger of torture
Applicant’s arguments
In an application for a judicial review of the negative PRRA decision, the applicant argued that his former counsel provided inadequate representation as they failed to advise him regarding the evidence and supporting documents needed to prove his claims of fear and harm in Peru, and failed to obtain and submit the relevant Peruvian police reports alongside the PRRA application.
The applicant asserted that his former counsel’s misconduct constituted a breach of procedural fairness, resulting in the officer’s finding that the applicant failed to give adequate, credible evidence to prove his claims.
The applicant added that the PRRA outcome would have been different if not for his former counsel’s incompetent representation.
Test for counsel incompetence
The Federal Court laid out the tripartite test for alleging counsel incompetence. Under the test, the applicant should fulfill all of the following criteria:
- Corroborate the allegation by notifying the former counsel and giving them an opportunity to respond
- Without the benefit and wisdom of hindsight, show that former counsel’s conduct was negligent or incompetent by establishing the facts of the alleged conduct and establishing the failure to meet the standard of reasonable professional assistance or judgment
- Prove that the result would have been different but for the incompetence
Incompetent representation not proven
The Federal Court dismissed the judicial review application upon determining that the applicant failed to meet the test for counsel incompetence amounting to procedural unfairness.
Regarding the test’s first element, the court accepted that the applicant advised former counsel of the allegations and provided an opportunity to respond. The court noted that former counsel submitted three detailed reply documents.
Regarding the second element, the court ruled that the applicant failed to meet the high bar, given the lack of clear evidence about the exchanges between the applicant and his former counsel regarding these matters.
The court pointed out that the applicant and his former counsel offered competing accounts. The court saw multiple inconsistencies and contradictions in the applicant’s account, which called into question his counsel incompetence allegations.
The court acknowledged that former counsel did little on the applicant’s behalf and did not submit much supporting evidence.
However, the court was unclear whether it should attribute former counsel’s conduct to their incompetence and lack of initiative, or to the applicant’s failure to inform former counsel about the existing police reports.
Previous immigration law cases
Here are some of the Federal Court’s other recent immigration law decisions with counsel incompetence claims.
In a refugee protection application challenging findings that a Jordanian national had viable internal flight alternatives, the Federal Court issued a Feb. 9 decision finding that he failed to establish a reasonable probability that the outcome would have been different, but for his ex-representative’s alleged misconduct.
The Federal Court made a Jan. 23 decision determining that the Refugee Appeal Division reasonably refused to admit the new evidence of applicants who were Colombian citizens, despite an applicant’s argument that his former counsel’s incompetence prevented the presentation of the new evidence.
The Federal Court issued a July 8, 2025, decision staying the deportation of a Nigerian citizen alleging that they would have submitted evidence of their queer sexual orientation to the PRRA officer, if not for their previous counsel’s incompetence.
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