The Federal Court dismissed an IFA appeal on October 9, 2026, finding that the applicant had not shown a reasonable probability that different submissions by his former immigration consultant would have changed the Refugee Appeal Division’s result.
Case background and decision under review
In Hussein Harb v. Canada (Citizenship and Immigration), 2026 FC 1257, Justice Battista reviewed a Refugee Appeal Division (RAD) decision that upheld the refusal of the applicant’s refugee protection claim by the Refugee Protection Division (RPD).
The applicant, a Jordanian citizen, based his claim on a fear of harm from the Al-Rubaihat clan following a car accident in which a clan member was seriously injured. He had provided a tribal declaration stating that the clan had agreed to “shed his blood.”
The RPD found that the applicant had a viable internal flight alternative (IFA) in Aqaba, Jordan. It concluded that the clan did not have the motivation or means to locate him there. The RAD agreed, finding that the applicant had not identified errors in the RPD’s conclusions about the clan’s ability to find him in Aqaba or the reasonableness of relocating there.
Applicant alleged ineffective representation at the RAD
The judicial review did not directly challenge the IFA findings on their merits. Instead, the applicant alleged that he had been denied procedural fairness because his former representative before the RAD, immigration consultant Amro Hayek, had provided incompetent representation.
Justice Battista noted that the consultant’s RAD submissions contained generic legal statements without applying them to the RPD decision or referring to specific evidence from the RPD record. The applicant had notified the consultant of the allegations under the Federal Court’s protocol for allegations against former counsel or authorized representatives. The consultant responded that his submissions addressed the core issues and were appropriate and procedurally sound.
Where ineffective assistance is raised for the first time on judicial review, the Court said that no standard of review applies. The issue was whether the alleged conduct resulted in a miscarriage of justice.
Court found no reasonable probability of a different result
The Court dismissed the application because the applicant had not established a miscarriage of justice. Justice Battista considered whether there was a reasonable probability that the RAD would have reached a different result had the consultant made the submissions the applicant now proposed.
The Court found that those proposed arguments did not address the determinative finding: that the Al-Rubaihat clan lacked the means to locate the applicant in Aqaba, even if it had a motivation to do so. The RPD had given the tribal declaration no weight as proof of the clan’s means and motivation because it conflicted with documentary evidence about such declarations. It had also considered and rejected scenarios in which the applicant could be discovered in Aqaba.
The RAD had endorsed those findings, and the Court held that the applicant had not provided evidence undermining them. As a result, he had not shown a reasonable probability that competent representation would have changed the appeal outcome.
Application dismissed without costs order
The Federal Court dismissed the application for judicial review. There was no question for certification and no order regarding costs.
The decision concerns the specific allegation that ineffective representation affected the applicant’s RAD appeal. It does not overturn the underlying IFA findings of the RPD and RAD.
Source: Federal Court Decisions