Arguing Incompetence of Counsel in Judicial Reviews

When an immigration application is refused, applicants may seek judicial review in Federal Court. In some cases, applicants may wish to argue that their previous counsel was incompetent, which contributed to the refusal. This article explores when and how such arguments can be made, and the legal standards that apply.

Legal Framework

The Federal Court has established clear standards for what constitutes incompetence of counsel. Simply making an error or losing a case does not constitute incompetence. Rather, the court looks for conduct that falls below the standard of a reasonably competent counsel in similar circumstances.

When Can Incompetence Be Argued?

Incompetence of counsel arguments are typically raised in judicial review applications where:

• The previous counsel failed to provide adequate representation
• Critical evidence was not submitted due to counsel's oversight
• Important deadlines were missed due to counsel's negligence
• Counsel failed to advise the client of important legal options

Standards Applied by the Court

The Federal Court applies a two-part test:

1. Competence Standard: Did the counsel's conduct fall below the standard of a reasonably competent counsel?
2. Prejudice: Did the incompetence cause prejudice to the applicant, such that the outcome might have been different?

Practical Considerations

When considering whether to raise incompetence of counsel arguments, applicants should:

• Gather all relevant documentation from previous counsel
• Document any communications that demonstrate incompetence
• Consider whether the incompetence actually affected the outcome
• Consult with new counsel about the strength of such arguments

Conclusion

Arguing incompetence of counsel in judicial reviews is a serious matter that requires careful consideration. While such arguments can be successful in appropriate circumstances, they must meet the high standards established by the Federal Court. Applicants should seek professional legal advice before pursuing such arguments.