No Longer Welcome

Canada’s Immigration Refugee Board closes the door on Romani refugees from Hungary

By Joseph Castaldo

December 2005/January 2006

A Hungarian Roma demonstration in Toronto in 2003

AT TORONTO’S CULTURELINK centre, an organization that helps settle new immigrants, Mark Reczkiewicz and Hajnalka Hamori sit on a couch in the common room. Hajnalka’s four-year-old daughter Regina flops down between them and closes her eyes as Mark drapes his sweater over her. There is a small stereo in the corner, a table covered with juice jugs and crackers, and empty chairs placed here and there. Mark and Hajnalka helped to organize this International Roma Day celebration in April for the few thousand Roma (or Gypsies, as they are commonly known) in Toronto and Hamilton, but no one has shown up yet. I ask Mark how many people he’s expecting.

“Eight,” he says, only half-jokingly.

An hour later, a few more Roma have shown up, music blasts from the stereo, and the children are gathered together to paint a mural. Hajnalka’s mother Gyongy, who also helped organize the event, leans against the wall and looks at the small group of kids splashing paint on the canvas. “I don’t know why we do this,” she says. “I don’t know if this helps anyone.”

Romani gatherings were bigger a few years ago—-Gyongy organized singing and dancing lessons for the children, who’d then perform at get-togethers. Today, it’s only Gyongy, 54, who dances barefoot with her granddaughter Regina (who’s more interested in eating cookies), and who leads an impromptu singing session with two other Roma, smiling as she croons the slow, mournful melody of an old folk song. Over the past year, the Romani community in Toronto has shrunk as families, predominantly Hungarian, are deported to Europe. “Every week, one, two families go back,” Gyongy says. “We are always asking, ‘Who’s next?’” Many of those in Toronto, including Gyongy, are awaiting the results of their own refugee cases, and rarely leave their homes, she says.

I ask Maria Virag, a Hungarian Roma granted refugee status in 2000, why she thinks she was allowed to stay in Canada when so many of her peers have been denied. “It’s about what happened to you,” she said, pausing. “And how much you pray to God.”

Hungarian Roma may have had reason to feel that way upon arriving in Canada. Starting in 1998, between 5,000 and 6,000 Roma from Hungary immigrated to Canada, most of them settling in Toronto and claiming refugee status based on discrimination and abuse they suffered in Europe. The Immigration Refugee Board (IRB) accepted 71 percent of Hungarian Roma refugee cases in late 1998, but early the following year only nine percent were admitted. What caused the drop has been the subject of legal controversy, and the issue will be brought up again next year as immigration lawyers and Roma community leaders argue that the IRB deliberately and illegally shut the door to Hungarian Roma.

It began in late 1998 when the IRB heard the cases of two Hungarian Roma refugee claimants, Geza Kozak and Sandor Smajda. The situation was unusual in that the IRB was treating it as a “lead case,” meaning it was to serve as a template for all other Hungarian Roma refugee cases. Because the large volume of Roma cases was new to the IRB, it decided a lead case was necessary to provide adjudicators with up-to-date information about Hungary and the issues surrounding Roma. IRB spokesperson Charles Hawkins says lead cases “help the decision-makers to determine the cases more quickly, and in a way that’s consistent.”

After ten days of hearings, including testimony from witnesses flown in from Hungary to discuss the country’s treatment of Roma, IRB adjudicators Vladimir Bubrin and Barbara Berger denied the two claimants refugee status. The IRB summary of the case indicated Hungarian Roma indeed suffer from “segregation and different treatment in education, prejudice in housing, including incidents of forced evictions, discrimination in employment, cases of police indifference and even brutality.” However, the summary also said “while the applicants may face discrimination if returned to Hungary, it would not amount to persecution.”

The outcome was written up and circulated to IRB adjudicators. However, adjudicators are not bound to the precedent. “The reality is each case was still heard on its own merit,” says Hawkins. “Our members are required to do that.”

The number of Hungarian Roma accepted into Canada as refugees plummeted in the following months.

Never before had the IRB attempted a lead case, and the 1985 Immigration Act, under which it was operating at the time, is not clear on whether the IRB has the authority to set precedents. What also troubled immigration lawyers was the fact the IRB singled out Hungary when large numbers of Roma from other countries (89 percent from the Czech Republic in 1998, for example) were granted refugee status. Toronto lawyers Rocco Galati and Amena Sherazee submitted the case for judicial review, meaning the Federal Court would review the case to determine if the IRB had made mistakes in reaching its decision. If successful, the precedent could potentially be overturned. The review was set for March 2000, but was postponed until June 2004.

Galati and Sherazee requested documents dating back to early 1998, when discussions of a lead case first began. They received over 1000 pages, but Sherazee says they were denied at least another 1000. Director of the Roma Community Centre Paul St. Clair and Ron Lee, Canada’s leading authority on Roma, were both consulted in preparing the case. According to the legal team, the documents showed a clear indication of bias on the part of the IRB in engineering a negative outcome for the lead case.

The documents made reference to a meeting in Hungary between former Prime Minister Jean Chretien and a group of Hungarian politicians concerned about Hungary’s recent application to the European Union. The EU had rejected Hungary until it could improve its record of human rights with respect to its Romani population. The legal team was denied further details about those meetings. St. Clair and Lee both suspect it was for economic reasons that Canada focused on Hungary. With more than $1 billion in trade between the countries since 1998, and Canada’s support for EU status for Hungary, accepting thousands of Romani refugees from Hungary would have strained relations between the two countries, they argue.

After Chretien’s visit to Hungary, e-mails began circulating among IRB board members about the “growing intake of Hungarians.” “[T]here are 15,000 (yes, fifteen thousand) Hungarian Roma on the way to Canada,” read one, followed by another which read, “these statistics don’t look so good.” On June 25, 1998, IRB board member Vladimir Bubrin sent an e-mail to the Ministry of Citizenship and Immigration stating that “the IRB is going to consolidate its resources in support of a leading case…Planning and consultation should not be disclosed to counsel or the applicant.” In a later e-mail, he wrote, “it is a good idea to provide some distance between the panel [referring to IRB judges] and the board management to avoid any possible inference of improper influence over the panel’s deliberation.” Despite this concern, Vladimir Bubrin was one of two IRB members to adjudicate the case. Bubrin was unavailable for comment before press time.

The IRB test case’s summary of the Hungarian Roma situation excluded testimony from two key witnesses: Dr. Ian Hancock, a Romani professor at the University of Texas and author of four books on the history and culture of Roma, and Orest Subtelny, a history and political science professor at York University specializing in Eastern Europe. Their testimony was shut out on the grounds that they were not living in Hungary at the time. Statements from the other four witnesses, three of whom were employed by the Hungarian government, were ruled admissible.

Galati and Sherazee argued last year that these actions showed bias on the part of the IRB, making it impossible for the claimants to have a fair hearing. Justice Douglas Robert Campbell, who presided over the appeal, disagreed. He ruled that the e-mail evidence was taken out of context, Bubrin’s involvement in the preparation of the lead case did not constitute bias, and the IRB did have jurisdiction to conduct a lead case. Campbell wrote in his ruling that despite no mention of lead cases in the 1985 Immigration Act, bodies such as the IRB still have jurisdiction over their own procedures.

Campbell also found no plausible connection between the drop in the number of approved Hungarian Roma refugees and the lead case itself. Spokesperson Hawkins says the IRB is unable to comment on the drop, since there is no way of knowing what caused it. “We don’t track our cases according to a specific type of case to a specific country,” he says. “We might do it in the future.”

The Federal Court’s decision was appealed again by Galati, and is set to go to trial early next year. Even if Galati is successful in having the ruling overturned, it means little to the Roma in Toronto who have not only seen friends deported, but could soon be deported themselves. Gyongy and her daughter Hajnalka, 24, came to Canada in 2000, but were denied refugee status. They have since appealed, and have to wait until next year for a decision. Meanwhile, they’ve started life in Canada, and Hajnalka even gave birth to her daughter while in Toronto. If their claim is rejected, they’ll have to go back to Hungary. “I am worried to go back to Hungary,” Gyongy says. “I don’t know what will happen.”

Hajnalka couldn’t find work in Hungary—-employers explicitly told her they wouldn’t hire Roma—-and her mother had recently been let go from her office cleaner job. “My boss, he told me, ‘We are going to make soap from your body,” she says. “‘You’re just one Gypsy. What does it matter?’” They finally left after skinheads told Hajnalka, who was pregnant, that they’d kick her baby out of her.

GYONGY AND HAJNALKA BUSY THEMSELVES trying to keep the dwindling Romani community together as they await the outcome of their refugee case. Hajnalka volunteers at CultureLink, helping settle immigrants, and recently organized an English class for Roma. “Only three people come,” she says. “I think more people should come, but they are in fear.”

Meanwhile, the IRB has since been given the authority in the 2001 Immigration Act to set what are called jurisprudential guides. IRB spokesperson Hawkins says the concept is very similar to a lead case, except “the names are different.” Hawkins stresses that each case is still judged individually, and judges are permitted to deviate from a jurisprudential guide. Still, Ron Lee fears the implications. “If they can get away with a test case for Hungarian Roma, then in the future they can stop Afghans, or Somalis, or anyone else,” he says.

“They picked the weakest group to start with – the Roma.”

Joseph Castaldo is a fourth-year magazine journalism student at Ryerson University in Toronto.

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