**Update. I wrote the below post about a month ago; some days ago the Federal Court rendered a decision in the case where we argued that the actions of former counsel should be grounds for the setting aside of the decision itself.
Choose your counsel/representative carefully. Prevention, as they say, is the best medicine. It is essential that you and those close to you ask questions to ensure that your representative has the necessary skills, knowledge and experience to present your case. In terms of immigration, your application, hearing or appeal may be your only shot to enter, stay or bring your family members to join you in this country. While difficult, you may be able to set aside a refusal if it results from incompetence of counsel.
It isn't that easy to set aside a refusal based on alleged oversight or incompetence by counsel. The Federal Court has a Protocol in place: Download Procedural-protocol_7march2014 Current counsel will need to determine whether there is actual foundation for the allegation and must notify former counsel and include their response, if any, in their filed materials (the Applicant's Record). If leave is granted, former counsel must be served with the perfected materials and they can seek leave to intervene.
Errors and omissions by former counsel have to fall outside the realm of reasonable professional judgment. This is not about hindsight being 20/20 and a ex post facto redetermination of litigation strategy. It's not about human or administrative error and misstep.
In a recent case, now before the Federal Court, my client suffered from serious intellectual delay and disability. She married and had a child with her husband. Her sponsorship was refused, and my client and her family retained an immigration consultant to handle the sponsorship appeal before the Immigration Appeal Division.
That appeal was denied. Former counsel failed to call a third witness (a near requirement in such appeals where the applicant -the sponsored person's -testimony is not easily tested in relation to the sponsor's testimony; see Chohan v. MCI where a mutual family member testified or Kaler v. MCI and Mali v. MCI where the sponsor's sister testified in support of the appeal). A third witness would have been able to provide evidence and clarification as to the factors that are assessed in such appeals (such as the intention of the parties in entering the marriage, the due diligence taken in arranging the match, and the origin and development of the relationship).
The former representative also failed to provide an updated psychological report, presenting instead an outdated report obtained for a far different purpose. Further, a review of the transcript revealed that former counsel did a deficient direct examination (not understanding basic concepts including not asking leading questions) and clearly did not review or apply the principles from the jurisprudence in this particular subset of marriage appeals. He also provided evidence in submissions -and thus did not understand the difference between the two.
In Lee v MCI, the Federal Court set out the (relatively straightforward) framework of analysis:
 In R v G.D.B., above, the Supreme Court stated:
26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O’Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel’s acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.
 This Court explained the principle in these terms in Memari v Canada (Minister of Citizenship and Immigration), 2010 FC 1196, 378 FTR 206:
 However, in proceedings under the IRPA, the incompetence of counsel will only constitute a breach of natural justice in “extraordinary circumstances” (Huynh v. Minister of Employment and Immigration (1993), 65 F.T.R. 11 at 15 (T.D.)). With respect to the performance component, at a minimum, “the incompetence or negligence of the applicant’s representative [must be] sufficiently specific and clearly supported by the evidence” (Shirwa, above, at 60). With respect to the prejudice component, the Court must be satisfied that a miscarriage of justice resulted. Consistent with the extraordinary nature of this ground of challenge, the performance component must be exceptional and the miscarriage of justice component must be manifested in procedural unfairness, the reliability of the trial result having been compromised, or another readily apparent form.
In Kim, the failure to submit evidence was held to to be incompetent:
 In this particular context, where the officer specifically refers to the lack of evidence, and where the submissions by the consultant are limited, this Court concludes that the failure to submit evidence causes a prejudice to the Applicants amounting to a miscarriage of justice.
In Memari, the failure to obtain a medical report, a poorly prepared refugee narrative and failing to call pertinent witnesses cumulatively amounted. In Memari, former counsel, who was suffering from a medical condition fell on her sword so to speak (the ethical thing to do) and helped established the allegations.
In Guadron v. MCI 2014 FC 1092 the Court stated:
 In short, the facts of this case align with the jurisprudence of this Court where incompetence was found due to a failure of the representative to submit evidence that clearly should have been submitted and for which logic defies failure to submit that evidence. Indeed, past cases have so found with lesser evidentiary gaps or omissions, such as in the matter of Kim referenced above.
 The Intervener argues that one can always second-guess in hindsight whether evidence should have been submitted, and that in any event, that each of the four evidentiary gaps in question were addressed in some manner in the H&C application.
 I disagree. It was incumbent upon the legal representative, after having accepted the retainer, to apprise CIC as fully as possible of all key factual elements relevant to this H&C application.
 The Court makes this determination in the absence of deciding on any of the credibility concerns asserted by the Intervener vis-a-vis the Applicant’s failures to furnish evidence on these points: I find no need to adjudicate on the “he said – she said” said aspects of this unfortunate dispute.
 Rather, I find that as the duly appointed legal representative under the Act, it was the representative’s responsibility to make reasonable attempts to seek out crucial information required for the Applicant to overcome the significant hurdles in obtaining a highly discretionary and exceptional H&C remedy. It is not good enough to state that the Applicant (or her family) did not volunteer it. That approach undermines the reason for hiring a licensed representative, be it a lawyer, or a consultant in this case. To find otherwise would posit the question as to why one would bother to hire a professional in the first place.
In Galyas v. MCI 2013 FC 250 at para 84, the Federal Court confirmed that to establish a breach of procedural fairness on the grounds of incompetence, then the Applicant must establish that the outcome would have been different but for the incompetence. Essentially, one must show that the decision at hand is compromised or unreliable in a manner which constitutes a miscarriage of justice due to the omissions
Ideally, justice should be obtained at the first instance and after the fact exercises like judicial review should be avoided. It is incumbent on individuals to do their due diligence when hiring a professional.