Canada holds unusual hearing on Romani refugees from Hungary

03 April 1999

The Immigration and Refugee Board (IRB), the body charged with reviewing requests for asylum in Canada, recently introduced an unusual procedure to the review of applications by Roma from Hungary. In recent years, in response to sudden influxes of groups of applicants, the IRB has convened information sessions in which expert witnesses provide information to persons charged with reviewing asylum applications. Adjudicators in the Canadian asylum process are lay persons, and the information sessions have in the past been convened in order for these non-experts to become familiar with facts about the situation on the ground in the country of origin of the asylum seekers. Such a session was held in autumn 1997, when Roma from the Czech Republic began applying for asylum in large numbers.

Recently, the IRB altered the practice. Apparently in response to increasing numbers of Romani asylum applicants, Canadian authorities singled out three Romani asylum applicants from Hungary, named these "lead cases" and used expert testimony from an information session on Roma in Hungary in these three cases. In January 1999, adjudicators ruling in two of the lead cases decided that the Roma concerned did not have a well-founded fear of persecution in Hungary.

One oddity in the lead cases was that for the first time the Department of Citizenship and Immigration (CIC), a government authority, was allowed to participate in the procedures of the IRB. The CIC in fact called four of the six witnesses heard during the lead cases. Previously, the IRB had prided itself on its insulation from the pressures of political considerations brought by precisely such bodies as the CIC.

Prompted by widespread speculation that the lead cases would be regarded by adjudicators as having the weight of precedent, the IRB released a public statement on January 20, explaining the lead cases. The "Lead Case Backgrounder" attempted to neutralise the claim that the hearings had been infected by political considerations by using language to suggest that "lead cases" were a common or at least occasional part of the proceedings of the IRB; "To facilitate the efficient, in-depth examination of these recurring issues, the IRB may decide to select a representative sample of similar claims to be dealt with as 'lead cases'." Elsewhere in the "Lead Case Backgrounder", the IRB implicitly acknowledges that the procedure has not, in fact, been used before: "The Board is therefore continually developing tools [...] that foster consistency and assist decision makers." In responding to the controversial issue of precedent, the IRB explained the lead cases and their application as follows:

A lead case has two objectives. It permits the IRB to establish a baseline of up-to-date and expert information on country conditions in respect of a country from which there is a sudden shift in the volume or type of refugee claim. A lead case also gives focus to the principal legal issues that arise from those facts. This is consistent with the role of the Board's Refugee Division, which acts as an expert tribunal having specialised knowledge of human rights conditions in countries from whose nationals the Board receives claims. [...]

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.

It remains to be seen how adjudicators ruling on Hungarian Romani asylum cases will use the decisions in the IRB lead cases.

The following two articles discuss the Canadian end of the matter, while the ERRC report on Hajdúhadház gives an example of what a Canadian court may learn during hearings involving Roma from Hungary.