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Embassy Magazine – March 10, 2010
By Anca Gurzu

Last June, Immigration Minister Jason Kenney publicly questioned the legitimacy of refugee claims made by Roma coming from the Czech Republic, saying they faced no real risk of state persecution.

Only a few weeks earlier, Mr. Kenney had described asylum claims by US war deserters as “bogus,” and accused Mexican refugee claimants of systematically abusing the Canadian refugee system. The next month, the Canadian government imposed visa restrictions on visitors from both the Czech Republic and Mexico.

Mr. Kenney’s comments-which recently saw him target several post-Olympic refugee claimants have illicited strong criticisms from experts and refugee advocates.

But now a Toronto-based lawyer has asked a Federal Court to rule on whether the minister, by making the statements, has interfered in the Immigration and Refugee Board’s independence.

Refugee lawyer Max Bergercompared the acceptance rates of Czech refugee claimants throughout the four quarters of 2009 and found significant differences. The 2009 IRB Country Report shows that from January to March, 81 per cent of claims from the Czech Republic were accepted (34, compared to 8 rejected). By the third quarter of the year (July to September), after the minister’s comments, the acceptance rate had dropped to 30 per cent (18 accepted and 42 rejected). Moreover, from October to December, there were no refugee claims accepted from the Czech Republic.

“How is it conceivable that an acceptance rate can plummet so drastically? In my 21 years of appearing before the refugee board there has never been a 50 per cent drop for one country where there hasn’t been a revolution or a change in government,” Mr. Berger said. “And I believe this is attributable to the minister’s remarks.”

Mr. Kenney’s office did not respond to Embassy’s questions before press time.

Mr. Berger, who is hoping the Federal Court judge will deliver a judgment on March 22, is representing a Czech Roma client whose refugee claim was refused by the IRB. The judge has already indicated the statistics will be taken into consideration, and Mr. Berger is hoping the court will strike down the board’s initial decision and send the case back for a new hearing.

Using the acceptance rate numbers, Mr. Berger is trying to show that a general member of the public might reasonably think that board members could have been influenced in their decision making by Minister Kenney’s remarks.

Members of the IRB are responsible for hearing refugee claims, analyzing the evidence of each case, and ultimately approving or rejecting the claim. The IRB is an independent agency, however, the immigration minister decides on who is appointed and re-appointed.

“It seems he is stating the outcomes he would like to see in these cases,” Mr. Berger said. “This, in my view, challenges the appearance of impartiality of the board.”

Peter Showler, former IRB chairman and director of the refugee forum at the Human Rights Research and Education Centre at the university of Ottawa, said Mr. Berger is doing the right thing by challenging Minister Kenney’s remarks.

Although Mr. Showler acknowledged it is impossible to know how many of the Czech refugee claims were from Roma (cases are confidential), he said he expects “that the claimant could and should be successful.”

“The minister’s conduct has been outrageous,” Mr. Showler said. “He has made statements that no immigration minister, either Conservative or Liberal, has made in the last 15 years.”

In 2006, lawyer Rocco Galati presented in front of the Federal Court of Appeal an argument similar to Mr. Berger’s.

The lawyer argued that email exchanges between board members and officials at the Department of Citizenship and Immigration were reflecting a strategy designed to reduce the percentage of successful refugee claims by Hungarian Roma. Mr. Galati argued board members did not separate their management and case adjudication duties, leading a reasonable person to believe they were biased when handing down decisions for those specific claimants. The court agreed.

Lawyers might also use Mr. Kenney’s most recent remarks about the post-Olympic asylum seekers to challenge the independence and impartiality of IRB members, said Janet Dench, executive director of the Canadian Council for Refugees.

Seven people from Japan, Hungary and Russia sought refugee status after the end of the Vancouver Winter Olympics. A few days later, Mr. Kenney said it was “ridiculous” that anyone from Japan could claim to be a refugee since Japan is a liberal democratic country. He also said Hungary is becoming the number one source of refugee claims in Canada, but he finds it hard to believe the claims are genuine.

“Hungary is a member of the European Union, it’s a democratic country in full compliance with human rights laws,” Mr. Kenney said. “While there are challenges for people there, there’s no evidence of state persecution.”

As an individual, Mr. Kenney is entitled to his opinion, said Ms. Dench, but as a minister, he needs to refrain from making any comments about cases since he could be interfering with the judicial process.

“We were surprised he would make such comments again. We were under the impression that he had been counselled that that was inappropriate for him to do,” she said. “It is just as inappropriate as if the minister of justice would make comments about whether he thought someone was guilty who is currently facing charges before a court.”

Mr. Showler also pointed to the minister’s use of the term “state persecution.” Although there may be no evidence of such cases in Hungary, the next legal question is whether the host state is able and willing to protect these claimants from non-state persecutions, such as from extremists groups, he explained.

“It’s really quite surprising the minister is ignoring that,” he said.

Mr. Kenney also said that “what’s really weird is that 97 per cent of the Hungarian refugee claimants to Canada are subsequently withdrawing their refugee claims.” He suggested that could be because claimants are allowed to work in Canada, collect welfare and other social benefits even after they withdraw their claims.

That information is wrong, Mr. Berger said. Once a claim is withdrawn, that person is no longer eligible to have a work permit or medical coverage, he said, adding that most people in that situation leave the country shortly after.

“There’s absolutely no advantage to anyone withdrawing their refugee claim and staying in the country. He should know better, because he is the minister.”

Mr. Kenney is exaggerating the claimants’ entitlements, Ms. Dench said.

“The picture he is painting is one of refugee claimants consuming Canadian resources, and this has the effect of building up resentment against them, but in fact being a refugee claimant is really tough.”

One possible explanation for the very high withdrawal rate for Hungarian refugee claimants is the fact that they are misled by travel agencies in their home countries into thinking it’s easy to obtain refugee status in Canada, Mr. Showler said.

Once they find out that is not true, they withdraw their claim, he added. “If they really intended to be fraudulent, the last thing they would do is to withdraw.” By surrendering all their benefits, the claimants are in fact behaving ethically, he added.

“We should appreciate that some of these people are actually mislead and are victims themselves,” Mr. Showler said. “I think the minister has slandered refugees in a way that is quite unacceptable for the person who is responsible for the protection of refugees in Canada.”


Max Berger is a native of Winnipeg, Manitoba and was educated at the University of Manitoba and York University. Mr. Berger is a graduate of Osgoode Hall Law School in Toronto, Canada. He has represented immigration clients from all corners of the world and in every area of immigration law.

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