Federal Court



Applicants failed to prove how counsel’s behavior prejudiced them

Application for judicial review of denial of refugee claim. Applicants were Roma citizens of Hungary who alleged fear of persecution due to their ethnicity. Board denied claim on grounds applicants lacked credibility. Applicants contended that they were denied fair hearing due to incompetence of their legal counsel at time of hearing. Applicants alleged that counsel’s breath smelled like alcohol on previous occasion and they had only met with her twice before hearing. At judicial review hearing counsel for applicants pointed to “poor representations” of their legal counsel in transcript of hearing before board. Applicants contended they were denied fair hearing however applicants fail to explain why hearing was conducted unfairly. Application dismissed. Incompetence of counsel has been recognized as breach of natural justice where there was evidence to support finding of incompetence. Here applicants failed to prove how their legal counsel’s behavior at time of hearing prejudiced them. Counsel showed up for hearing, made representations, questioned applicants and appeared to have followed their instructions. Thus, counsel appeared to have exercised standard of care required, bringing reasonable care, skill and knowledge to performance of her legal services. Absent any evidence of misconduct or prejudice, this court cannot conclude that applicants were denied fair hearing. Rather, counsel was chosen by applicants and they had sufficient time before hearing to find new lawyer if they had concerns. Since applicants had not proven that they were denied fair trial, court could not intervene.

Balazs v. Canada (Minister of Citizenship and Immigration) (May 24, 2012, F.C., Pinard J., File No. IMM-6987-11) 218 A.C.W.S. (3d) 646 (10 pp.).

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