[When Policy trumps Logic and Evidence]
I personally decided hundreds of these cases while at the IRB[i]
It is now well past the seven year statute of limitations period as it relates to my decision making at Canada’s Immigration and Refugee Board. I served there until late 2006 when I developed health problems and finally had to leave. While with the “Board” I decided (determined) hundreds of Rom cases (pejorative; “gypsy or Hungarian Roma cases) wherein too many appeared before in attempts to obtain refugee status in Canada.
This saga however goes back 2003 and 2004 several years before I heard and decided my first Hungarian Rom case. Over ten years ago the management of the Board (the Immigration and Refugee Board) created a strategy that was intended to thwart thousands of Rom refugee claimants from seeking and obtaining asylum in Canada. There is absolutely no doubt that the decision to create such a strategy emanated from the (then) Liberal Cabinet of Jean Chretien who was the Prime Minister at the time.
Policy Trumps Evidence
I never was privy to the rationale of the hard-line strategy that in essence permitted my decision making colleagues to summarily reject each and every Rom case that appeared before them. As to motivation for the strategy, I can only point to anecdotal evidence that existed at the time that the IRB created its infamous “Roma Lead Case” strategy. In no particular order of priority, it is known that (a) Hungary was applying for full membership in the European Union; (b) one of the Civil Service directors at the Board had served long stints in Canada’s diplomatic corps and had been stationed in Budapest (Hungary) and finally (c) Canada had been regularly spending millions in foreign aid in Hungary.
My suspicion is that any of the above motivators played a major part in moving the Canadian government (of the day) to unleash a “special’ treatment for handling Rom cases at the IRB and led to the massive deportations of tens of thousands of Rom refugee claimants from Canada to their native Hungary.
Two things were made perfectly clear to the Board’s decision makers of the day (1) the individual allegations of any Rom refugee claimant were less important than the policy of the Board as stated in the “Hungarian Lead Case” scheme and (2) any of the Board’s decision makers ignoring the “Lead Case” edict would be perceived to be “insubordinate”.
What I gleaned from independent and highly credible third party reports was that Rom inside of Hungary were regularly subjected to high degrees of systemic discrimination and that instead of intervening on the behalf of the Rom and that the police were often among the worst persecutors and human rights abusers.
The Hungarian Roma Lead Case (formed in 2004) denied all rules of natural justice. A random refugee- claiming family was selected from among the open cases at the IRB. A concerted effort was made (by the IRB) to produce evidence that denied mistreatment of Rom in Hungary. To prove that point, a “star” collection of anti-Rom “expert” witnesses was assembled in Toronto. Among the group of luminaries were a journalist who was known to have published numerous anti-Rom articles in the Hungarian media and a middle/ high ranking Hungarian civil servant. These “witnesses” were brought to Canada by the Immigration Department. I need say nothing about reasonable apprehension of bias in any situation where any court prejudices its impartiality by physically building such a case and then arbitrating it.
In any normal course of events, a skilled decision maker would have assigned incredibly little weight to evidence provided by a witness who was neither unbiased nor plainly neutral. At the same time, volumes of carefully assembled evidence from sources such as Amnesty International, Human Rights Watch and (even) the USA Department of State were dismissed. Such evidence spoke volumes about human rights abuses focused at Rom inside of Hungary as well as the Hungarian government’s indifference towards often violent and life-threatening actions by neo-Nazi/skin head gangs aimed at Rom.
The individuals in the Lead Case were determined to not be persons needing or deserving of Refugee Protection in Canada and were subsequently ordered deported to Hungary. However, the tentacles of the Lead Case framework were to have a much longer lasting effect on all Hungarian Rom refugee claimants in the future. Future decisions made by the Board would be required to either reject (deny) the Rom refugee claim OR to accept the claim ONLY by showing how that particular case was materially different from the Lead Case. In other words, reverse justice would be used. Moreover, the central policy at the Board that each case would be determined on its own merit ceased to exist for Hungarian Rom.
The Terrible Results of Defending Fairness
I perhaps doomed my own fate at the IRB by making a positive determination (granting refugee status) to the identical twin brother of one of the lead case individuals. The entire story was picked up by Canada’s most famous investigative reporters (Andrew Mitrovicia ) who wrote a feature story about the entire incident (and my consequences) fro not following the Lead Case edict. Andew Mitrovicia penned the feature article in October 2007 in Walrus magazine. Fortunately, it is still available on-line (http://thewalrus.ca/2007-10-national-magazine-award-nominee/) [ii]and led Andrew to a national newspaper award nomination.
Although the Board simply adjusted its strategy, as a consequence of losing a challenge against my positive determination at the Federal Court that subsequently led to a group challenge of the Lead Case (http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/46772/index.do?r=AAAAAQAOVGFtYXMgQ3NlcHJlZ2kAAAAAAQ)[iv]. I am proud and happy to have paid the democratic price that paved to way for ultimately overturning the Lead Case methodology. On July 24, 2004 the Federal Court subsequently heard an appeal on the Lead Case. The “certified question” by the “Court” went to heart of the Board’s handling of the Lead Case by questioning the validity of such lead cases wherein it asked “Did the IRB have jurisdiction to conduct a “lead case” under the Immigration Act?” (http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/38738/index.do?r=AAAAAQAEZ2V6YQAAAAAB). [v]
That we live in a world of easy access to massive data and information is no indication that we live in a society that is more literate. In fact, in convoluted cases such as the Rom and Hungary and Canada’s treatment of Rom Asylum seekers, it is a pity that we live in a world of five second sound bites and lack the motivation to gather viable information prior to forming a hard-and-fast conclusion.
My own travels to Europe and even public observations at places such as railroad and transit depots paint an entirely sinister picture of the treatment of Rom by Hungarian authorities that even still exists. Notwithstanding the fact that economic recession has led to the renewed growth of “neo-nazi” nationalist gangs of “skin heads” who wage often violent persecution against Rom with impunity from the authorities, these people remain one of the most persecuted groups inside of modern day Europe. They truly deserve a much better fate than is evident in the ensuing nine years since I wrote a landmark decision on a Rom Case that had dire personal consequences for me personally and ultimately resulted in an unworkable situation. Despite the onerous personal price that I paid by way of two subsequent years of torment and needless difficulties, apparently not much has changed and Rom are still abused in Hungary and shunned by Canada’s refugee apparatus. A CBC investigative report aired this year (http://www.cbc.ca/news/canada/roma-refugees-victims-of-systemic-discrimination-in-canada-new-report-finds-1.3018837) [vi]indicates that prejudice (in Canada and in Hungary) is extremely difficult to eradicate.
It is extremely difficult even until this day for me to listen to those in opposition Liberal and NDP who rant about human rights when each took part in the Lead Case fiasco. The Liberals as authors of the policy were fully complicit while the NDP (who are the loudest critics of perceived injustices) sat quietly as willfully blind observers were duplicit. There is certainly a valid lesson in all of this: unless and until human rights are applied equally and evenly for all; there are no human rights.
Perhaps,,,, maybe, someday common sense and fairness shall overcome bias and racial hatred.
Copyright Thunderbird Rising 2015
The above article is copyrighted. You may use, copy or distribute this article conditional on attributing your source (Thunderbird Rising) and the author (Lloyd Fournier)
[i] IRB is the Immigration and Refugee Board
[ii] No Refuge was written by Andrew Mitrovicia and published in Walrus magazine in October 2007.
[iii] Federal Court Decisions, 2005-10-28, Citation: 2005 FC 1376, Docket: IMM-1892-04
[iv] Federal Court Decisions, 2005-10-28, Citation: 2005 FC 1376, Docket: IMM-1892-04
[v] Federal Court of Canada, July 27, 2004, docket IMM-488-99; Citation: 2004 FC 1039
[vi] CBC Story, April 02, 2015; Maureen Brosnahan, CBC News, “Roma refugees victims of systemic discrimination in Canada, new report finds Many claimants faced bias and unfair treatment”