The fate of every refugee who stands before Canada's often unfathomable Immigration and Refugee Board is supposed to rest on the particulars of his or her own story. Or that's the theory, anyway.
But what happens when the board prejudices the argument of those desperate to remain within our borders, by using prepackaged info? And further, what if this only happens in claims made by the Hungarian Roma and no other group?
That's the startling reality being challenged this week before a federal court of appeal by lawyer Rocco Galati. Galati's beef stems from the board's 1999 decision to use two test or "lead" cases as indicators for all subsequent Hungarian Roma refugee cases. The idea was that officials would establish facts about conditions in Hungary so that adjudicators investigating new claims wouldn't have to repeat research.
But Galati is now appealing the two failed claims, arguing that the lead case method "demonstrates institutional bias." This distortion of normal procedures, he says, is being visited on the Roma because "they are the most marginalized, non-represented and alienated racial group. The government figured they'd have an easy time picking on them."
And, indeed, the consequences are revealed in the numbers. Five thousand Roma have come to Canada from 1997 to the present. From January to December 1998 before the lead cases 71 per cent of claimants were accepted, according to the Roma Community Centre in Parkdale. But that number falls to 30 per cent from January to December 2000 and to 27 per cent from January to December 2001.
Galati is certainly not the only refugee advocate concerned about the implication of the lead case phenomenon. Says Daniel Kingwell, a lawyer with Mamann & Associates Immigration Lawyers, "The basic principle at the board is that all refugees have a right without prejudice to have their case heard, and that means no matter where you're from and no matter what your ethnic background, you start with a blank slate."
But, he says, that's not happening for the Roma because the lead case decisions started with the supposition that they are not true refugees. "I think it's a bad way to adjudicate these kinds of claims," says Kingwell. "It robs people of the ability to be heard on their own merit."
The ruling in one case concluded that the claimant did not sufficiently rebutt "the presumption that Hungary is able to afford protection." In the other, adjudicators admitted that "anti-Roma prejudice still exists," including "prejudice in housing, incidents of forced eviction, discrimination in employment, police indifference and even brutality, incidences of violence, insults and exclusion,' but that government measures "can be considered appropriate to address ths situation."
For Amina Sherazee, a lawyer working with Galati, this situation seems strange. She points out that since 1999, appeal court rulings on Roma cases show an enormous inconsistency on the relationship between Hungarian officialdom and the Roma. "There have been a number of cases where the federal court has said, 'Well, there isn't any protection,' and then a whole line of cases saying there is," she says.
Still, those who know that country well say the realities are consistently harsher than the board assumes. It's true that the government has set up new programs to integrate the Roma, who have been persecuted since fleeing their native India over a 1,000 years ago. They now have their own radio station and reps in parliament.
But according to U of T international relations and political science professor Aurel Braun, Hungary's efforts have had little impact on the ground. "Hungary has supposedly, made attempts to fulfill its obligations under the acquis communautaire (European Union law), but the results are distressing.
The education, health care and employment situation is so dire that one has to legitimately ask if the government is really attempting to end discrimination," says Braun.
A 2003 United Nations report points to the fact that poverty levels among the Roma are closer to countries like Zimbabwe or Botswana. And a 2001 Human Rights Watch World Report cites continued discrimination in employment, housing and education, and abuse by police.
If the feds knew all this in 1999, why did they implement lead case decisions that undermine Roma claims? While not suggesting there are direct political reasons, Braun does point to some general pressure on the Canadian government.
"My understanding is that we want to keep good relations with Hungary, which became a member in 1999 of NATO and in 2004 of the European Union. We want good relations with the European Union. We also want to encourage democracy in Hungary, and sometimes the way to encourage it is a kind of positive reinforcement," says Braun suggesting accepting too many refugees would alienate Hungarian authorities.
Of course, IRB spokespeople don't articulate their policies in the syntax of good relations between nations. They defend the lead case process as a way to ensure consistency in its decisions. "The IRB believes that the lead case concept was important to the finding of facts and useful for reducing the need to reiterate common-fact situations," says board spokesperson Serge Arsenault.
And he assures me that decision-makers are not bound to follow the reasoning of the lead cases. "The burden of proof still rests upon the claimants. [The lead case approach] does not prevent a claimant from presenting any relevant evidence."
Still, the number of rejected claims abound. Take the case of Istvan (a pseudonym because he's afraid to jeopardize his chance of remaining in Canada), who arrived in 2001 with his wife and two daughters, happy to be in a place where he did not have to risk his life when venturing outdoors.
"[In Hungary] I was beaten by the cops," says Istvan. "So was my brother. There, if you are Roma and you go to find a job, nobody is going to give you one. They say, 'I'm sorry, you are Gypsy, we don't give jobs to Gypsies. '" In April 2004, he learned his refugee case was denied. He has applied for an appeal, to stay on humanitarian grounds.
At the Hungarian Embassy in Ottawa, official Ferenc Banyar promised months ago to answer queries about conditions in his country. Several calls later, there is no response.
Susan Fazekas, a board member at the Roma Community Centre who returned to her native Hungary recently, reports that "people told me to be careful how I walk on the street, because if I lift my feet up too high a Gypsy child would steal my shoe. Roma are treated like thieves. They are ostracized. They are spat on."
According to Ronald Lee, a Roma activist and historian, there are changes afoot in that country, but they are astoundingly slow. According to what has been learned at the UN about new services, he says, "It will take 50 to 60 years before any reforms seep down to improve the lives of the average Romani citizens. It's like American laws in the past against persecution of African Americans. The laws existed, but that didn't stop the discrimination, the prejudice, the lynchings. It takes a long, long time for the law to have an effect," says Lee.