Hungarian Roma refugees in Canada — The lead case, its aftermath and the future (Parts 2 & 3)

According to Paul St. Clair[1]’s report dated 2007, about the Migration of Hungarian Roma to Canada (and back),

            In comparison to about 5,000 Czech Roma, close to 25,000 Hungarian Roma made Refugee Claim in Canada, between 1997 and 2002.  In contrast to the Czech, the Hungarian Roma migration had a much more fluid form.  This was mainly because there was no visa requirement for visitors from Hungary, until it was imposed by Canada, in December 2001. 

From 1997 to 2001 as many as 44% of the claims were declared abandoned or voluntarily withdrawn by the Hungarian Roma.  However, of those who returned to Hungary, whether voluntarily or because they were refused asylum, about 1,500 individuals, came back to Canada a few months later. 

The eventual imposition of the visa requirement on Hungary put a stop to new arrivals.  Canadian Minister of Immigration justified the introduction of the visa requirement as a post 9/11 security measure, required to harmonize Canadian policies with that of the US. 

At that time Canada was a strong supporter of Hungarian entry into NATO and the EU.  Hungary has also enacted various, for the Roma essentially ineffective, administrative and legislative, measures to show its favorable treatment of minorities. These administrative measures were introduced mainly to impress the EU and ease the eventual acceptance of Hungary, rather than to actually improve the lives of the Hungarian Roma. (See “US Department of State Reports on Hungary,” 1999 – 2001).

 The mistrust of the Roma asylum seekers, exemplified by the extremely negative press reports, led to long delays in processing of the Czech Roma claims.  During this period they were not permitted to work and they remained stewing in the temporary shelters, without any idea about their future.  This contributed to their unease and insecurity, which made about half of them to return permanently to the Czech Republic within ten months of their arrival.

Eventually the IRB decided to examine 30, or so, Czech Roma cases.  The idea was that if a great majority turned out to be positive, the IRB would expedite and accept all Czech Roma cases, unless there was evidence of serious criminality or other such impediments.  In the end, the IRB has decided to consider each Czech Roma claim on its own merits.  From the beginning of 1997 to the end of 2000, when the great majority of the Czech cases were decided, 952 were judged positive and 138 were refused.  In other words, 87% of the decisions were positive. 

This high rate of acceptance was mainly due to the overwhelming evidence that the Czech state was unable and/or unwilling to protect the Roma against neo-Nazi and skinhead attacks, beatings, murders and drownings.  The IRB relied on a rarely used concept of “systemic discrimination,” where the claimants did not have to prove that they personally suffered serious instances of persecution.  All they had to prove was their Roma identity, and they were accepted because the “cumulative effects of discrimination amounted to persecution.” (Ron Lee, page 17)  This approach was not applied to the Hungarian Roma cases.  On the contrary, their cases came under the shadow of the Lead Case.

Lead Case and its Effects

Until 1998, the IRB dealt with the Hungarian Roma just like with any other group of Refugee Claimants, when they heard a rumor that 15,000 additional Roma are coming from Hungary.  This prompted the IRB to search for another solution.  At some point it was decided, to conduct a “test case” to examine the overall situation of Roma in Hungary, which would then be used in deciding other Hungarian Roma cases.

To this day, it remains unclear how was this decision made.  Due to “national security” concerns, the information request revealed less than half of the communications between IRB, Immigration and other Government Departments were released during the appeal of the Lead Case.  This was the only instance of a Lead Case in the history of the IRB.  According to the documents filed by the appellants’ defense counsel, it was allegedly Vlad Bubrin, one of the IRB Adjudicators who, aside from routinely making negative decisions in Hungarian Roma cases, also held at this time an administrative position charged with assigning cases.  From what was revealed in the appeal proceedings, it appears that he organized the Lead Case, which involved two Hungarian-Roma families.  Eventually, he also became one of the two Adjudicators deciding the Lead Case, despite the apparent conflict of interests within these roles.

Legal Aid (Ontario) paid for four Hungarian “experts” to come to Toronto to testify on behalf of the Immigration Department, which opposed the granting of asylum in these two cases.  The expert group consisted of two Hungarian government employees, one an Ombudsman for Minorities and the other an official with the Ministry of Justice.  The other two were one discredited Roma leader who has depended on government’s handouts for decades and one fairly independent person, who newer-the-less sat on boards of many of organizations that depended on government largess. 

The fairly inexperienced lawyer, representing the two families of claimants, was refused funding to bring his own experts from Hungary.  The IRB adjudicators decided to ignore all the testimony that did not come from these four Hungarian experts. The explicit reason for ignoring all of the testimonies of North American experts, testifying for the claimants, was that their knowledge of Hungarian situation was either second hand or not as recent as that of those who just came from Hungary.  From the testimonies of these “experts” the adjudicators concluded that while discrimination is common, actual persecution of Roma in Hungary is rare, and that the situation is steadily improving.  The inevitably negative decision led to an immediate and dramatic decrease in positive decisions.  The Hungarian Roma acceptance rate of 70%, in 1998, plummeted to 16% for the whole of 1999, and to just 8% in the two quarters that followed the Lead Case decision.

In Hungary, the asylum seekers story created a substantial echo.  The negative reports in Hungarian press made life very difficult for the returning Roma.  They were treated as traitors, or spoilers of Hungary’s chances for entry into the EU.  The poor reception of the returnees was aggravated by a far more extensive Hungarian press coverage of the Zamoly Roma, who obtained Refugee Status in Strasbourg, the heart of the EU.  This did not affect the situation in Canada but affected the treatment of Roma returning from Canada to Hungary.  The returnees were routinely refused assistance in housing, health care, social assistance, etc.  In Canada this was recognized on October 28, 2005 when the Federal Court upheld a decision of the IRB to grant refugee status to a Roma couple on the basis of aggravated persecution due to their connection to the Lead Case.  One of the claimants in this case is a close relative of an individual directly involved in the Lead Case.  The Federal Court upheld the IRB decision against the objection of the Immigration Department. (Federal Court Decision: MCI vs. Csepregi/Bacsa, 2005 FC 1376).

In January 2006, the Ontario Court of Appeals overturned the original Lead Case decision.  However, in its summation the Court stated that this decision concerns only the two claims that were part of the Lead Case and should not affect any other cases.  This has essentially prevented the use of this decision for the benefit of hundreds of Hungarian Roma cases, whether they were in still in Canada or those already deported to Hungary. 

The rationale for producing the lead cases that was published by the IRB in a March 1999 “Lead Case Backgrounder” which reads as follows (IRB “Lead Cases Backgrounder”, March 1999; Affidavit of Lisa Cirillo dated March 12, 2004, page 1232):

  • “The use of lead cases does not infringe on the independence of Board decision makers. Neither the evidence presented in lead cases, nor the decisions reached in those cases, are binding on subsequent panels. It is the role of the panel in a subsequent case to assess the evidence presented and examined in a relevant lead case, as well as the reasoning used to arrive at that decision. Given the expertise of the witnesses called by the parties and the quality of the documentary materials introduced in evidence in lead cases, it is expected that the evidence will be given appropriate weight by subsequent panels. It is also expected that subsequent panels will carefully consider the reasoning applied by the panel in arriving at its decision.

 

          A lead case is not, in itself, determinative of other cases. It is the right of counsel in subsequent cases to call further or better evidence or to bring to light relevant distinctions to be made between the facts of a lead case and those before the subsequent panel. Nothing in the concept of the lead case limits the rights of any party to call evidence or conduct their case in a manner appropriate to the requirements of that case”.[2]

However it was pretty obvious that the Immigration Minister and the immigration department expected the members to follow the so called lead case to the tee, or as it was demonstrated in the Csepregi/Bacsa 2005 positive IRB decision, let the member suffer the unstated and unwritten consequences. [3]

Lloyd Fournier’s passage to the IRB was remarkably similar to mine.

A self-confessed child of the counterculture and an opponent of the Vietnam War, he provided safe haven to US draft dodgers while attending the University of Windsor in the late 1960s and early 1970s.

As a globe-trotting businessman, he gravitated to helping immigrants and refugees — the proud descendant of Acadians was always mindful of those forced from their homelands or searching for a better life. With the support of his church, Fournier was soon offering newcomers advice on untangling red tape so they could secure landed-immigrant status, and he helped to steer migrants into the skilled trades.
… when Fournier was named to the irb’s refugee-protection division in June 2001… he seized the opportunity with a mixture of excitement and anticipation. Surrounded by family and friends, Fournier promised at his swearing-in ceremony to carry out his duties faithfully and impartially. “I was proud, very proud. It was an honour,” he says. “This job is part of nation-building. You have a hand in deciding who stays in this country and who does not.”

Fournier readily acknowledges that his Liberal party ties, coupled with his volunteer experience, played a deciding role in his irb appointment by the citizenship and immigration minister, Elinor Caplan, and he is unapologetic about it: “Why would any government not want to surround itself with people that are at least sympathetic to their point of view?”

Fournier understood, as well, that Canada’s door has often been guarded by influential and sometimes invisible mandarins. Indeed, this nation’s checkered immigration record — the notorious head tax on Chinese labourers; the forced return of “boat people” who sailed into Vancouver harbour from Hong Kong in 1913; the turning back of European Jewry during the World War II era, and the wartime internment of Japanese Canadians — had Fournier privately echoing historian Irving Abella’s blunt verdict that powerful bureaucrats and the governments they served “knew what kind of people [Canadians] wanted and how to keep out those we did not.”

Despite his misgivings, Fournier was eager to get started.
But before the fresh batch of irb members could adjudicate cases, they were schooled in immigration and refugee law, the rules of evidence, legal precedents, and how to write a decision. Fournier welcomed the training as evidence of the board’s diligence. He began his new job on July 3, 2001, convinced that he was prepared to make judgments about the lives and futures of people based solely on the merits of their claims.

Fournier quickly gained a reputation as a respected board member who cleared cases with care and speed. In December 2002, eighteen months into the job, his official performance review described him as “hard-working and productive . . . helpful, personable and eager to take on additional work.” The appraisal added that his case preparations were thorough, his hearings focused, and that he delivered decisions expeditiously. “The amount of work completed by Mr. Fournier early in his mandate is a significant achievement,” read the report.

A year later, that report card helped Fournier win a five-year reappointment and prompted senior irb managers to ask him to join the refugee-protection division’s Central European team. Fournier agreed and moved to the new unit in the fall of 2003. “They were quite happy to have me there because they were really swamped with cases,” he boasts. “I was a star member. I was out-producing everybody.” His cherished independence intact, Fournier believed that he alone enjoyed the authority to render decisions on his files “and that nobody would dare question them.”

In early December 2003, Tamas Csepregi, a young, dark-haired Hungarian Rom, and his wife, Beata, stood before Fournier and quietly appealed to remain in Canada. Csepregi was the identical twin brother of Attila, a Rom who had fled to Canada with his wife in the late 1990s. The couple joined scores of Roma who had immigrated to Canada and claimed refugee status because of abuse and discrimination they endured back home. Pejoratively referred to as gypsies and falsely thought of as stateless vagabonds, Roma refugees present an intriguing challenge for host countries. While most who come to Canada hail from the Czech Republic and Hungary, “back home” can be difficult to define and verify. Nonetheless, in 1998, the irb accepted an overwhelming majority of Roma claimants. The next year, however, less than 10 percent of the Hungarian Roma cases were approved. How to account for the dramatic drop?

In late 1998, senior irb officials took the unprecedented step of crafting a lead case based on the claims of four Hungarian Roma, including Attila Csepregi. At the time, an irb spokesperson publicly insisted that the lead case was designed only to help members “determine the cases more quickly, and in a way that’s consistent.” Critics worried that the very idea of a lead case was anathema to the Charter of Rights and Freedoms and, more particularly, to the board’s guiding principle — to judge cases individually and impartially. If successful, the lead case could establish, immigration lawyers and advocates charged, a chilling administrative precedent that the irb could apply to other religious, national, or ethnic groups.

The irb ventured into this extra judicial territory through a hearing that appeared designed to protect Hungary’s interests at the expense of the Roma and a refugee-determination system that is routinely held up as a model of probity and fairness. Most tellingly, Hungarian officials were brought in to testify during the fourteen-day hearing on conditions Roma claimants faced in their homeland, while witnesses sympathetic to their plight were denied standing on the grounds that they no longer lived in Hungary. At the time, Hungary was lobbying for admission into the European Union and was eager to erase blots on its human rights record, including state ostracism, deep poverty, and roving bands of violent, neo-Nazi skinheads, aspects of Hungarian life that particularly afflicted the Roma.

On January 20, 1999, two irb members ruled against the four claimants (including Attila and his wife), concluding that while they faced discrimination in their homeland, it did not amount to persecution. The precedent had been established, and, not surprisingly, the number of Hungarian Roma accepted into Canada plummeted in the following months. It has remained low ever since.

Lawyers and Roma advocates cried foul, charging that the process had been rigged, and launched an appeal of the decision. The irb tried to dampen the criticism by insisting that members were not bound by the lead case: “Each case [is] still heard on its own merits,” an irb official said. “Our members are required to do that.” But like other adjudicators, Fournier immediately understood the real intent of the lead-case ruling. “It became very easy to say no. It became a task, and this is the awakening, to hear somebody [and] be persuaded . . . to say, yes, there is a case here.”

The hearing into the refugee claim of Tamas and Beata Csepregi took place on December 8, 2003, and Fournier began writing his decision shortly thereafter. When done, he sent a draft to his secretary to be proofread and typed. Then something unusual happened. “I was called into a presiding member’s office and told that he had heard through the grapevine that I was going to make a decision that might not be good for me,” says Fournier. He was warned that his decision would be watched and that a positive ruling “would not be very well received by the board.”

Fournier told his colleague that he would consider this advice and then told his secretary to “have the [decision] prepared and ready for my signature.” While he was disturbed that word of his favourable ruling had been leaked, Fournier remained confident that his autonomy would not be challenged.

Ten days after the hearing, on December 18, Fournier was summoned to a meeting with senior irb officials to answer questions about an alleged incident at a November 14 hearing involving two Hungarian homosexual claimants. The charge: Fournier made “an apparent invitation for the claimants to kiss as part of his examination of the claimants’ sexual orientation.” Fournier denied the allegation, insisting that he had never invited the men to kiss, but rather had told them to stop. Nonetheless, the irb deputy chairperson found that his actions were “inappropriate and a breach of the [irb’s] Code of Conduct.”

Concerned about this stain on his reputation, Fournier hired a prominent Toronto constitutional lawyer to seek redress from the irb. The board backed down and agreed to withdraw the allegations, but Fournier pressed for an apology and to have the matter stricken from his employment record. Ultimately, the board yielded to both demands. Exonerated, Fournier’s colleagues told him that he was now “bulletproof.” Fournier was less sanguine. He knew that his ability to act independently was under siege, and he sensed that the worst was yet to come.

On February 10, 2004, Fournier thrust open Canada’s doors to Tamas Csepregi and his twenty-four-year-old wife. He found that the Roma couple had “a well-founded fear of persecution” and that Hungary was unable or unwilling to protect them. Fournier also accepted their testimony that when word of the 1999 lead case had filtered back to Hungary the pair was repeatedly threatened “by unknown individuals” because of their relationship to the claimants. Dismissing the official line, Fournier reasoned that Hungary was indeed eager to prevent the human rights embarrassment of a “massive exodus of Roma refugee claimants” at a time when it was seeking EU inclusion. In sum, Fournier’s ruling was an emphatic repudiation of the negative lead-case ruling and the irb’s decision-making machinery.

In rendering his decisions, Fournier routinely tried to build a wall between himself and what he calls the irb’s “peculiar species” — the board’s stable of lawyers and Refugee Protection Officers (rpos). He bristled at the board’s practice of having in-house lawyers vet members’ decisions, calling it an overt challenge to their authority. As for the rpo, his contempt is palpable. “I have never seen an rpo come into a hearing with evidence that is of benefit to the claimants,” he says.

The irb, Fournier came to believe, was deliberately shutting Canada’s door to legitimate refugee claimants, and he responded by no longer sending his decisions to lawyers for review and by barring rpos from attending his hearings. Fournier says that his superiors “tolerated” both moves because he was clearing hundreds of cases a year and the irb was facing a huge backlog.

On March 1, 2004, just a month after Fournier formally delivered his Roma ruling, the Justice Department went to the Federal Court of Canada to have the decision quashed. It was an extraordinary move by Ottawa to try to undo an irb member’s positive ruling and to interfere directly with a refugee determination process. “It was the first time that I had a positive decision challenged. It was unusual,” Fournier says. “I had lots of negative [rulings] challenged, usually by the claimants.” Government lawyers argued that Fournier made errors in his ruling, principally ignoring the lead case.

On October 28, 2005, a Federal Court judge threw out the government’s case, ruling that he could not find grounds for overturning Fournier’s decision. “My decision was upheld,” Fournier says. Then, he added, “All hell broke loose for me at the board . . . I became persona non grata.”

Fournier was transferred from the Central European division to the Africa team, and a senior member of the irb who regularly went to noon mass with him at Toronto’s St. Michael’s Church suddenly stopped attending. Then, in quick succession, Fournier was accused of coming to work drunk and of writing other members’ decisions, and he learned that he was under renewed investigation after a male interpreter complained about his questioning of a claimant. All of these allegations were eventually dismissed, but Fournier “could see that these guys were going to go after me.”

As the workload, investigations, and court challenge began to exact a psychological and physical toll on Fournier, he learned of the final and perhaps most serious accusation to be levelled against him. On January 9, 2006, he was called into the office of a senior irb manager who, along with a board lawyer, told him that they were probing allegations that he had tried to kiss an interpreter in an elevator following a hearing in November 2005. Fournier acknowledged trading phone numbers with the interpreter and meeting for a coffee, but angrily denied the accusation. “Maybe I’m in here because of the Csepregi case, because that didn’t make the board very happy,” Fournier said.

“You’re only here because of [the allegation],” the irb official replied.

“I’ve certainly learned a lesson from this, and that is not to trust anybody in this building,” Fournier told the pair as the meeting ended. Without his knowledge, a formal complaint about the alleged incident was later sent to the irb’s deputy chairperson.

While Fournier grappled with his private travails, in early April 2006 the irb was dealing with the public fallout of embarrassing revelations flowing from a Federal Court of Appeal decision on the lead Roma case: in a surprising unanimous decision, the court overturned the 1999 irb Roma ruling and a lower-court decision upholding the board’s right to construct such a case.

Quoting extensively from internal irb emails obtained by the plaintiffs’ lawyers, the court found that the irb knew that Ottawa was concerned about a possible influx of Roma and had fashioned the lead case primarily to bar them from entering Canada — just as lawyers and Roma supporters had suspected. It also found that the board “was not acting independently” and that an irb member who rejected the lead-case claims had helped to organize and plan the lead case. The judges described this member’s conflict of interest as “particularly unfortunate.” The court mirrored Fournier’s positive decision concerning Tamas Csepregi in rescinding the lead-case ruling, a move that has paved the way to the potential review of hundreds of rejected Roma cases.

For Fournier, the court’s decision confirmed what he had long been convinced of: political calculations framed in part by bureaucrats had infected a refugee-determination system whose independence is supposed to be sacrosanct. “It’s a fiasco,” he says. But none of the members associated with the lead case was disciplined or reprimanded. Indeed, one member intimately involved in the affair was appointed a Justice of the Peace.

On the morning of September 19, 2006, Fournier was busy preparing for hearings at the board’s offices in downtown Toronto. He had heard nothing new about the allegations of impropriety against him and hoped “it was all over.” Still, he was anxious because later that day he was scheduled to meet the irb’s number-two man, who had arrived from Ottawa.

Fournier’s worst fears were realized when he walked into the irb’s sixth-floor boardroom that afternoon. The deputy chairperson and a lawyer were waiting for him. He was handed a letter informing him that his access card to the building was being deactivated and that he would be “working from home with pay, as required by the Board from time to time.” In the meantime, the minister of citizenship and immigration would decide whether Fournier should be subject to disciplinary measures. “I was numb,” he says. After the brief meeting, he went to his office to gather his coat and some belongings. “I figured that in the end the truth would come out and I would win,” he says.

Fournier began seeing a psychologist to treat depression and fatigue, and he waited to learn his fate. Then, in early October, another scandal erupted at the irb. It involved a member who was secretly videotaped allegedly offering to look kindly upon a young South Korean woman’s refugee claim in exchange for sexual favours. Snippets of the tape were aired on national television, and the spotlight was uncomfortably fixed on the irb. Questions swirled about how decisions are made, about who gets into Canada and why.

Ten days after the story hit the airwaves, word of Fournier’s own alleged misconduct was leaked to the press. “irb member faces sex complaint, source says: Man no longer hears cases, board confirms,” an October 13 headline in the Globe and Mail blared. Fournier read the story, which named him directly, in disbelief. “I just felt like running away from it all,” he says. “I didn’t think the irb would resort to such a tactic.”

Angry, Fournier called a senior board official demanding an explanation and a chance to speak to Jean-Guy Fleury, the irb chairperson. A week later, he received a short reply from Fleury: “I do understand your concerns . . . but it would not be appropriate for me to discuss the matter with you at this time.”

In early November, another story ran in the Globe. It featured more details about Fournier and his case, including an ambiguous reference to a “consensual relationship” between Fournier and a lawyer who had appeared before the board. “She was a friend,” he says. Indeed, to avoid any appearance of impropriety, months earlier and with the irb’s consent, Fournier had recused himself from cases involving the lawyer and her firm.

Fournier had had enough. On November 13, 2006, he wrote to Canada’s Auditor General, Sheila Fraser. In a fifteen-page letter, he provided details about the leaked stories and described the “arbitrary, unfair and vindictive” accusations and investigations that, taken together, constituted a “vendetta” by civil servants in “retribution” for his repudiation of the Roma lead case. He also raised the alarm that bureaucrats had increasingly “infringed upon the independence of members’ ability to render fair, reasonable and uninfluenced decisions” on refugee claims. On November 21, Fraser responded, telling Fournier that she did not have the mandate to probe his complaint. “I was furious,” he says. “There was no response to . . . a complaint about the fundamentals of what they’re doing. They’re tampering with a judicial process.”

In early December, Fournier received a letter from Monte Solberg, the minister of citizenship and immigration, informing him that an independent investigator had been hired to investigate “allegations made against you.”

Solberg appointed Brian Gover as the government’s chief investigator into the matter. The experienced Toronto criminal lawyer had been part of high-profile probes before, acting as counsel to the commission of inquiry into the tainted water scandal in Walkerton, Ontario, and he is currently a member of the legal team for the Air India inquiry. While admitting that the no-nonsense attorney “scared the heck out” of him, Fournier welcomed the investigation because, he says, he was determined not to quit but did not have the money or the stamina to sue the irb. “At the end of the day they would have broken me financially, and you can’t win that battle,” he says.

Gover and a female associate conducted a methodical investigation of the charges. In his thirty-four-page report, delivered to the deputy minister of citizenship and immigration on January 22, 2007, Gover concluded that while Fournier “did on occasion display unwelcome and improper conduct in the workplace” — in remarking on one woman’s fur coat and making reference to a possible trip to Cuba with another woman — Fournier’s conduct “did not amount to sexual harassment of these women,” nor was it “a significant breach of requirements relating to his office.”

Gover also supported Fournier on the attempted-kiss allegation, pointing out a crucial gap in the interpreter’s story. He reasoned that since the elevator trip the pair shared only lasted about ten seconds (between the fifth and sixth floors), there wasn’t time for Fournier to have “put down or drop” the load of documents he was carrying and try to kiss the interpreter before she exited. Gover wrote that the interpreter’s failure to disclose to the irb that she joined Fournier for a coffee shortly after the alleged elevator incident greatly undermined her credibility.

The veteran trial lawyer was particularly critical of the internal irb investigation that led to Fournier’s banishment in September 2006, calling it “flawed and potentially biased.” He noted that one witness acted as an investigator and that a senior irb official dismissed without reason Fournier’s central charge that the investigation was linked to his refusal to follow the Roma lead case. Gover gave qualified backing to Fournier’s charges that he had been singled out. While the irb didn’t conspire to undermine Fournier’s standing and reputation, Gover concluded, there was some evidence that he came under “particular scrutiny” and received “disproportionate attention” from the irb since his Roma ruling in early 2004.

Gover interviewed another irb member who confirmed that he too had been pressured to deliver negative decisions on Roma refugees after the lead case — a case the member derisively called a politically motivated “dog-and-pony show.” The former member — who described Fournier as a star — told Gover that Fournier’s fortunes at the board changed dramatically after he rendered his decision on the Roma lead case. Gover suggested that the cic examine more deeply Fournier’s charges that bias and political considerations at the irb had seriously undermined members’ ability to make refugee rulings independently. In the end, the government-appointed investigator recommended that, in effect, Fournier should keep his job.

Fournier was at home at his desk when Gover’s report arrived, by email, in late January 2007. Nervous, he opened the attachment and began reading a report that described, in detail, his near-absolute vindication. Fournier was overcome with relief and joy. He shared Gover’s findings with family and friends and then, once again, waited — this time for the irb to reinstate him, to apologize publicly, and to acknowledge the threat to irb members’ impartiality his case represents. “There needs to be a full-scale inquiry into the goings-on at the board as far as judicial interference,” he says.

Fournier wrote again to Jean-Guy Fleury on February 19, 2007, urging Fleury “in the spirit of fairness” to take steps to rehabilitate his reputation. Fleury resigned as the irb chairperson four days later, eight months before his mandate was scheduled to end. He cited the need to spend more time with his family.

Finally, on May 31, Fournier received a reply from Brian Goodman, the irb’s interim chairperson, who joined the board with Fournier in 2001. Goodman’s letter did not contain anything about reinstatement, an apology, or a probe. Instead, he invited Fournier to a meeting to discuss the minister’s conclusions about his future with the board and “other outstanding issues.” Goodman made a solitary reference to Gover’s exhaustive and largely exculpatory report. “Mr. Gover concluded,” Goodman wrote, “there was not a significant breach of (the irb’s) code of conduct . . . but that you did on occasion display unwelcome and improper conduct in the workplace. . . . It is now appropriate that I decide whether this conduct violated the code.”

Fournier was thoroughly dumbfounded. “They’re trying to do an end run around Gover’s report,” he says. “Now you’ve got a Conservative minister saying: I don’t care what the evidence is, I want this guy fried. That’s my reading of it.” Goodman’s two-page letter is also reflective, he insists, of the board leadership’s haughty nature, which is strikingly at odds with the quasi-judicial body’s stated goal of ensuring fairness in all its decision-making.

[1] Director of the Roma Community and Advocacy Centre, Toronto

 

[2] ADMINISTRATIVE LAW IN CONTEXT, CHAPTER 6, Independence, Impartiality and Bias by Laverne Jacobs Edited Case 3 Geza v. Canada (Minister of Citizenship and Immigration)(F.C.)

 

[3] For challenging a policy that discriminated against certain refugees, a federal employee’s career was ruined. Despite being cleared, he still awaits justice. Politics and Public Interest

By Andrew Mitrovica From the October 2007 The Walrus magazine

 ***

The present and the future of the independent IRB

I still remember the Parliamentary hearing when Sam Ifejika and I presented our concerns about the undue pressures put on the IRB members in February 16th, 1993, and one Conservative member asked me rather angrily, what I wanted out of Canada refugee system? To let anybody in, without any restrictions? To open the doors for tens of thousands bogus refugees, who then would proceed to milk our generous social assistance? (Don’t bother looking for the minutes of that meeting, as it had been conducted in closed doors and following the next election the documents had been duly shredded.)

My answer then and now were the same: It is important to have a body of people, capable of making decisions about people’s fate, coming from countries, where people can be persecuted for their race, religion, political opinion, membership of a social group, or sexual choices. But that body of people must be allowed to be non-political, totally independent from current policies and or political issues. And let these people make those decisions in a timely manner, because for a person fleeing from persecution, to live in limbo for too long can be another layer of torture.

Illustration: Tamás Péli

However, in order to achieve this we need to ensure that the quality of people making these decisions reflect the job criteria, which automatically should exclude political appointees. They should be able to understand the legal issues, and to comprehend the situations about the countries these claimants are coming from; they must have a strong understanding of cross-cultural differences as well be sensitive towards people who had gone through series of discrimination, and at times tortures.  I wouldn’t trust a desk-hugging bureaucrat, who never experienced or witnessed hardship in their life, making decisions about other people’s life.  As I pointed out to the Conservative MP at the time of our hearing that I can’t see him standing at a the street corner in the Ottawa winter waiting for a cab for more than 5 minutes, never mind being in a life threatening situation, waiting for someone else decide his fate. I didn’t have a chance to share my idea how I would train the Canadian Refugee Board Members and Immigration officials for the job: to drop them into a faraway refugee camp, without proper identity papers, and without letting them know it would only last for six month. Let’s see how they would fare under those circumstances and how fast they would find their humanity!

I understand that recently the job of the IRB members opened for the general public. To fill the recent void of the members, at least six thousands applications had been posted, and some of them actually had been called back for second interviews. However, I keep looking at the forums on the internet and wonder when I see that a person, who for instance claimed to have worked in refugee settlements for close to seven years, but had been outright rejected, without an explanation.

But I have further issues with the current Government, especially with Mr. Kenney, the Minister of Immigration who tries to make Canada a more unwelcome destination for asylum seekers with so called shaky refugee claims, and proceeds to declare all 25 European Union nations, including Hungary—the source of thousands of the ethnic Roma refugees in recent years who have filed refugee claims in Canada—to be put on that new list of safe countries.

Mr. Kenney claimed that these countries are „democracies with respectable legal systems don’t normally produce real refugees fleeing persecution. So anyone from one of the listed safe countries will be processed more quickly by Canadian authorities than claimants from other countries. As well, they won’t have access to a new appeals process, open to those from other countries, if their initial applications are rejected. When their claims are rejected, they are liable to be sent home more swiftly.”

In the case of the Roma people, Kenney expressed sympathy for the discrimination they face in Hungary, where he recently visited a Roma community. Still, he said “virtually none” of their refugee claims filed in Canada turn out to be valid. “In the case of Hungary,” he said, “95 per cent of the claims that have been finalized in our fair system have been abandoned, withdrawn or rejected.”

A study written in 2007 by Paul St. Clair, Director of the Roma Community and Advocacy Centre, Toronto, titled: Migration of Hungarian Roma to Canada (and back), asserted that the reason so many Check and Hungarian Roma refugee claimants abandoned their cases was not because their claim was not valid.  He stated that:

The main reasons that prompted the voluntary returns back to Hungary or the Czech Republic were:

– Hungary’s entry into the EU, offering new opportunities

– Imposition of visa left some family members in Hungary or Czech Republic

– Lack of steady work opportunities in Canada

– Unable to make ends meet on social assistance alone

– Fear of being rejected (no documented proof of persecution, past transgressions, etc.)

– A close relatives got ill, died or was in need of care or assistance

– There was some financial benefit from repeated travel between Canada and Hungary

And he goes further to explain:  The reality is that both Hungary and Canada had mistreated the Roma. Hungary failed because, despite its promises and acceptance into the EU, it has been unable to create an environment where discrimination laws are respected or enforced and where police protects rather than abuses this particular minority.  It continues to fail the Roma as, in addition to the above, it does not provide adequate education, housing or an effective social safety net.

Mr. St. Clair rightly points a finger at Canada as well when he stated categorically: Canada has also failed the Roma.  It missed an opportunity to encourage, or shame, Hungary into substantially improving the living conditions of their Roma population.  Moreover, it failed to treat the Roma asylum seekers fairly.  Instead, it tried to keep the Hungarian Roma out of Canada by instigating a shameful charade of a Lead Case, which negatively affected thousands of subsequent Roma claims.  From the settlement perspective Canada has also failed this group.  To succeed, the Roma who arrived, like many other refugee groups, without any English or marketable skills, needed more suitable language, welfare or employment programs.

To rub salt in a wound, on December 2012 Mr. Kenney decided to go in person to Hungary and proceeded to advise the Roma, that as far as he was concerned NONE WAS TOO MANY, in Canada. No accounts of discrimination against the Hungarian Roma, their poverty, or even their systematic murder could move him from his determination: Canada will speedily expel hundreds if not thousands of Roma asylum seekers. He proceeded to ignore the reality of Hungary’s present legal system, and the amount of discrimination and atrocities the Roma currently encounters there on their daily lives.

To dissuade would-be Roma asylum-seekers from coming to Canada, “most livable country”…and a “symbol of tolerance”, the Canadian government spent approximately $13,000 on an information campaign, including billboards, notices in bus shelters, newspapers, and on radio spots in the Hungarian city of Miskolc. The billboards read, “An announcement from the Government of Canada: To deter abuse, Canada’s refugee system has changed. Asylum claims are evaluated within weeks instead of years. Applicants with unjustified immigration claims are sent home faster.”

The fact that his visit and his message alone will put the Roma at increased risk from the fascist Jobbik hoodlums and from the government one of those own members considers Roma to be animal, didn’t seem to matter much.

Many organizations, including the Montreal Holocaust Memorial Centre (MHMC) finds it regrettable that the Canadian government has included East European countries, Hungary among them, in the list of designated countries of origin (DCO) created by the so-called Protecting Canada’s Immigration System Act, formerly known as Bill C-31.

The MHMC publicly appealed to the government to apply these measures with extreme caution. “The fact that a government is elected democratically does not necessarily mean that it will assure the safety and equal treatment of a country’s minority”, maintains Daniel Rabinowicz, member of the MHMC’s Board of Directors. “The Canadian refugee status determination system already evaluates each case on its own merits.” The MHMC is concerned that the Government of Canada has already dismissed certain refugee cases as unfounded, especially in the case of countries like Hungary, where extreme right movements commit acts of violence with impunity and where a member of parliament has recently called for a list of all the Jews of the country.

Mr. Kenney’s argument that if they were genuinely fleeing persecution, they would naturally seek protection first in nearby European countries, was contradicted by  Peter Showler, director of a refugee law research forum at University of Ottawa, who said Kenney is wrong to suggest those EU countries have actually reviewed refugee claims from Hungary’s Roma. “The fact of the matter is they cannot seek asylum in other European Union countries. There is an agreement in place that you cannot seek asylum in another EU country. That’s a straightforward fact,” Showler said. “That’s a binding agreement among EU countries.”

Kenney also repeatedly asserted that the Hungarian Roma have the right of free mobility within the EU, making it suspicious that they would travel as far as Canada to seek haven from oppression. Again, though, Showler said the real opportunities for the Roma to relocate that way are very limited. “The maximum they can be in another EU country is three months unless they obtain employment,” he said. “They are undereducated, stigmatized Roma from Hungary. Their chances of finding employment in these other countries is very low.”

“This suggested system creates a two-tiered system of refugees,” said Rob Shropshire, interim executive director of the Canadian Council of Refugees. “There’s an inherent prejudice in a system that says this class of claimants come from countries that do not normally produce refugees. How can someone not be affected by that when making a decision about if this claim is valid or not?”

And this is the real crux of the matter again. Mr. Kenney in his capacity as the current Minister of Immigration made a political decision. And of course once again he would expect the IRB, – a supposedly independent decision making body, whose mandate is to hear individual cases and make decisions based on the facts in front of them, – to follow his lead, and make cookie cutter decisions against their better judgment, or face the consequences.

On top of that the Conservatives are also promising to deny health and dental benefits to refugee claimants. Those originating in safe-country list nations would be here so briefly if their application was rejected that they wouldn’t have an opportunity to claim benefits. And those who showed up in Canada through “irregular arrivals” such as refugee ships would be denied health and dental benefits until and if their application was approved.

The sad reality is that many of those claiming refugee statuses are coming from places, where they were also denied health benefits and consequently have illnesses, like TB, that could easily spread even within a short time. Tell me honestly who would profit by refusing health benefit for those newly arrived claimants?

Mr. Kenney tries to explain his reasoning with the new bill, that it will bring Canada more in line with the systems in many European countries.  However Peter Showler, former chair of the Immigration and Refugee Board of Canada, and currently a professor with the University of Ottawa law school, says this is a step backward. “The difference is, in Europe, they have a quick front-end process and then have two to three levels of appeal,” Prof. Showler said. “In Canada, we have a longer but better initial screening,” he said.

All in all, the critics of the new immigration rules share a concern about ministerial Influence at the Canadian Refugee Board. I have news for them: from the very beginning of the institution this influence existed and on many occasions cost some members, who refused to bow into this pressure, their job and reputation.  Their warnings about undue pressures at best were ignored, and worst ridiculed and made them to be scapegoats. These were the members, who had been accused to “have making decisions, so they could sleep peacefully at night”, instead of being haunted to have sent some claimants back to certain death.

It boils down to the fact if you wanted to make a refugee system, where no refugees would be welcome, but still try to retain the reputation of a country upholding human rights, and at the same time have a place for political patronage, where your friends can have a well-paying, but ineffectual job, Mr. Kenney couldn’t have created a more perfect scenario. The question, of course is: is this the Canada we want to live in?

When I perused the internet about Canada’s current Immigration problems I found this gem:

“Countries who’ve signed on to the Geneva Convention have a treaty obligation to accept refugees. How other countries interpret that obligation is irrelevant except in order to examine potentially transferable methods which could permit more timely and cost effective processing of claimants.

If posters wish Canada to abrogate the Geneva treaty conventions then you must petition your MP to do so, and vote accordingly, but in full knowledge that doing so would also remove protections they provide to Canadians, and make Canada a pariah state. Unless and until then respecting the rule of law is one part of your responsibilities as a citizen of a democracy. If you don’t then you don’t deserve to be a Canadian and may as well renounce your citizenship IMHO.”

It perfectly echoed my own sentiment.

Judith Kopácsi

7 Comments

  1. Before we criticize Hungary for its inability to improve the lives of the Roma minority, we should use Canada’s inability to do so for its Aboriginal population as a point of reference. After all, Canada with far superior economic & financial resources is failing in this regard. Given this fact, perhaps we should refrain from automatically claiming that Hungary is not making a real effort to integrate them. Aside from that, Hungary’s Roma claiming asylum is a bit of a joke, given the current global context. If their situation makes for valid asylum claims, then about 3-4 billion people on this planet are eligible for asylum. With most of them desiring to relocate in Western countries, I’d say potential authentic asylum claimants currently outnumber citizens of the Western world by about 3 to 1. I really think the Western world needs to re-asses its asylum policies, because this is no longer realistic or sustainable!

  2. Canada has much to be ashamed about in terms of its treatment of the Indigenous. But the nature of contemporary dialogue on this issue in Canada, the recognition of historic culpability for what happened by political elites, as well as by majority Canadian society and the national desire to honestly and fully address this troubled past stands in contrast to the deflection of historic responsibility in Hungary. And this deflection of responsibility pertains not only to the Roma, but to the Jews too and to the history of the Holocaust. Canadians are willing to honestly and sincerely grapple with their problematic past and with inherent racism. Hungarians, however, prove time and time again that they are incapable of this.

  3. György Lázár says:

    Dear Judith Kopacsi,

    Thanks you for publishing these articles, these are now part of the history of Hungarian immigration to Canada. It seems that at least 15-20,000 Hungarians of Roma origin arrived to Canada in the last two decades and they represent the largest Hungarian speaking immigrant group of recent times… I might add that the total number of the 56-ers was less than 40,000 to Canada. It is shameful that these new Hungarian refugees are not acknowledged and represented by the Hungarian Diaspora Council and do not receive support from Hungary when the Orbán Gov spends billions of Forints to support Hungarian causes in North-America.

  4. Judith Kopacsi says:

    The numbers of Hungarian Roma in Canada is significantly less, than you quoted, due to the illegal lead case and the resulting mass deportation. That was a terrible fiasco, and it put both the Canadian and Hungarian government to shame. But somehow, even now, it is only the Roma who is blamed and hardly any words mentioned about their successful integration into Canadian society. And let me tell you, a large number of Hungarian Roma children managed to fit in and caught up with their Canadian peers within a few month time, much to the surprise and delight of their new teachers. How interesting, that when they were treated with respect, and given any chance they became thriving in the Canadian school system!

  5. Judith Kopacsi says:

    Peter, and how far would you go with the reassessment of the so-called asylum politics? May I remind you that Canada was a signatory of the Geneva Convention, thus they have a treaty obligation to accept refugees. How other countries interpret that obligation is irrelevant except in order to examine potentially transferable methods which could permit more timely and cost effective processing of claimants.
    If posters wish Canada to abrogate the Geneva treaty conventions then you must petition your MP to do so, and vote accordingly, but in full knowledge that doing so would also remove protections they provide to Canadians, and make Canada a pariah state. Unless and until then respecting the rule of law is one part of your responsibilities as a citizen of a democracy. If you don’t then you don’t deserve to be a Canadian and may as well renounce your citizenship IMHO.”

    If posters wish Canada to abrogate the Geneva treaty conventions then you must petition your MP to do so, and vote accordingly, but in full knowledge that doing so would also remove protections they provide to Canadians, and make Canada a pariah state. Unless and until then respecting the rule of law is one part of your responsibilities as a citizen of a democracy. If you don’t then you don’t deserve to be a Canadian and may as well renounce your citizenship IMHO.”

  6. I am curious about Canada’s immigration laws and find this fascinating.

  7. Judith Kopacsi says:

    Jon, the laws are wonderful. However their interpretations on occasion are somewhat biased and questionable. By the way the articles that were posted here are part of a book, titled, “Send the bastard home”, and it is about my experiences on and with the Canadian Immigration and Refugee Board, between 1988-2015. In the book I describe that what happened to the member, after he ignored the lead case and made a positive decision in a Roma case was not an isolated and rare phenomenon. Constant pressure on the Board Members was rather a systematic way of ensuring to keep the acceptance level as low as possible, flaunting the law and at the cost of human misery.

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