In late 1998, senior irb officials took the unprecedented step of crafting a lead case based on the claims of four Hungarian Roma, including Attila Csepregi. At the time, an irb spokesperson publicly insisted that the lead case was designed only to help members “determine the cases more quickly, and in a way that’s consistent.” Critics worried that the very idea of a lead case was anathema to the Charter of Rights and Freedoms and, more particularly, to the board’s guiding principle — to judge cases individually and impartially. If successful, the lead case could establish, immigration lawyers and advocates charged, a chilling administrative precedent that the irb could apply to other religious, national, or ethnic groups.
The irb ventured into this extra judicial territory through a hearing that appeared designed to protect Hungary’s interests at the expense of the Roma and a refugee-determination system that is routinely held up as a model of probity and fairness. Most tellingly, Hungarian officials were brought in to testify during the fourteen-day hearing on conditions Roma claimants faced in their homeland, while witnesses sympathetic to their plight were denied standing on the grounds that they no longer lived in Hungary. At the time, Hungary was lobbying for admission into the European Union and was eager to erase blots on its human rights record, including state ostracism, deep poverty, and roving bands of violent, neo-Nazi skinheads, aspects of Hungarian life that particularly afflicted the Roma.
On January 20, 1999, two irb members ruled against the four claimants (including Attila and his wife), concluding that while they faced discrimination in their homeland, it did not amount to persecution. The precedent had been established, and, not surprisingly, the number of Hungarian Roma accepted into Canada plummeted in the following months. It has remained low ever since.
Lawyers and Roma advocates cried foul, charging that the process had been rigged, and launched an appeal of the decision. The irb tried to dampen the criticism by insisting that members were not bound by the lead case: “Each case [is] still heard on its own merits,” an irb official said. “Our members are required to do that.” But like other adjudicators, Fournier immediately understood the real intent of the lead-case ruling. “It became very easy to say no. It became a task, and this is the awakening, to hear somebody [and] be persuaded . . . to say, yes, there is a case here.”
The hearing into the refugee claim of Tamas and Beata Csepregi took place on December 8, 2003, and Fournier began writing his decision shortly thereafter. When done, he sent a draft to his secretary to be proofread and typed. Then something unusual happened. “I was called into a presiding member’s office and told that he had heard through the grapevine that I was going to make a decision that might not be good for me,” says Fournier. He was warned that his decision would be watched and that a positive ruling “would not be very well received by the board.”
Fournier told his colleague that he would consider this advice and then told his secretary to “have the [decision] prepared and ready for my signature.” While he was disturbed that word of his favourable ruling had been leaked, Fournier remained confident that his autonomy would not be challenged.
Ten days after the hearing, on December 18, Fournier was summoned to a meeting with senior irb officials to answer questions about an alleged incident at a November 14 hearing involving two Hungarian homosexual claimants. The charge: Fournier made “an apparent invitation for the claimants to kiss as part of his examination of the claimants’ sexual orientation.” Fournier denied the allegation, insisting that he had never invited the men to kiss, but rather had told them to stop. Nonetheless, the irb deputy chairperson found that his actions were “inappropriate and a breach of the [irb’s] Code of Conduct.”
Concerned about this stain on his reputation, Fournier hired a prominent Toronto constitutional lawyer to seek redress from the irb. The board backed down and agreed to withdraw the allegations, but Fournier pressed for an apology and to have the matter stricken from his employment record. Ultimately, the board yielded to both demands. Exonerated, Fournier’s colleagues told him that he was now “bulletproof.” Fournier was less sanguine. He knew that his ability to act independently was under siege, and he sensed that the worst was yet to come.
On February 10, 2004, Fournier thrust open Canada’s doors to Tamas Csepregi and his twenty-four-year-old wife. He found that the Roma couple had “a well-founded fear of persecution” and that Hungary was unable or unwilling to protect them. Fournier also accepted their testimony that when word of the 1999 lead case had filtered back to Hungary the pair was repeatedly threatened “by unknown individuals” because of their relationship to the claimants. Dismissing the official line, Fournier reasoned that Hungary was indeed eager to prevent the human rights embarrassment of a “massive exodus of Roma refugee claimants” at a time when it was seeking EU inclusion. In sum, Fournier’s ruling was an emphatic repudiation of the negative lead-case ruling and the irb’s decision-making machinery.
In rendering his decisions, Fournier routinely tried to build a wall between himself and what he calls the irb’s “peculiar species” — the board’s stable of lawyers and Refugee Protection Officers (rpos). He bristled at the board’s practice of having in-house lawyers vet members’ decisions, calling it an overt challenge to their authority. As for the rpo, his contempt is palpable. “I have never seen an rpo come into a hearing with evidence that is of benefit to the claimants,” he says.
