Court says it can’t weigh through lens of hindsight whether counsel gave ineffective assistance
In proceedings in pursuit of refugee status in Canada, the Federal Court dismissed a Sri Lankan family’s judicial review application alleging that their former counsel had provided ineffective assistance before the Immigration and Refugee Board’s Refugee Protection Division (RPD).
The principal applicant, his wife, and their minor son – the applicants in Sumudu Udayakantha Abeysundara v. Canada (Citizenship and Immigration), 2026 FC 1034 – came to Canada on visitor visas on Dec. 15, 2022.
In their refugee protection claim, the applicants alleged fear of harm in Sri Lanka by a powerful government minister and complicit police authorities.
Refugee Protection Division denies refugee claim
On Sept. 24, 2024, the RPD rejected the applicants’ refugee protection claim. The RPD determined that the applicants were not credible witnesses, not Convention refugees, and not persons in need of protection.
On Dec. 2, 2024, represented by new counsel before the Refugee Appeal Division (RAD), the applicants sought to submit new evidence and claimed incompetence on the part of their previous counsel.
Refugee Appeal Division agrees with RPD
On Mar. 6, 2025, the RAD dismissed the applicants’ appeal and the RPD decision. The RAD decided that the applicants were not credible witnesses and that the events did not happen as narrated by the principal applicant.
The applicants applied for judicial review of the RAD ruling.
Federal Court sees no counsel incompetence
In denying the judicial review application, the Federal Court found no reviewable error in the RAD’s rejection of the applicants’ argument that their prior counsel before the RPD acted incompetently.
Under the legal test relevant to alleged counsel incompetence, the court explained that it could not examine the representative’s performance through the lens of hindsight.
The court ruled that the applicants’ former counsel had no duty to anticipate future findings that the applicants lacked credibility by preemptively supporting each detail of the applicants’ narrative with corroborating documents.
According to the court, finding otherwise would place an impossible burden on refugee claimants and their counsel.
The court pointed out that the applicants had provided additional evidence in response to the RPD’s invitation to submit further documents to support their claim of fear of persecution.
The court added that an erroneous credibility finding by the RPD on some issues would not mean that the applicant’s former counsel took an unreasonable approach in the circumstances.
No fault in treatment of proposed new evidence
The Federal Court also confirmed the RAD’s conclusions regarding the applicants’ proposed new evidence.
The court noted that the RAD rejected the evidence since it failed to satisfy the test for new evidence under s. 110(4) of the Immigration and Refugee Protection Act, 2001, not just because the applicants failed to prove counsel incompetence.
Federal Court upholds credibility findings
According to the Federal Court, the RAD reasonably dismissed the appeal and affirmed the RPD ruling upon finding the applicants not credible. Specifically, the court explained that the RAD reasonably reached the following conclusions:
- The principal applicant failed to provide credible testimony regarding his alleged interactions with police on Mar. 15, 2022, and May 1, 2022
- There was no abduction of the principal applicant on June 5, 2022
- The applicants did not face ongoing harassment after the alleged abduction
Federal Court’s previous immigration law cases
Here are some of the Federal Court’s other recent immigration law decisions with counsel incompetence claims.
In a Peruvian citizen’s challenge against an unfavourable pre-removal risk assessment decision, the court issued a July 16 decision holding that he failed to meet the test for counsel incompetence and thus failed to establish a breach of procedural fairness or natural justice.
In a refugee protection application challenging findings that a Jordanian national had viable internal flight alternatives, the court made 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.
On Jan. 23, the court determined that the RAD 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.
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