On July 14, 2009, Canada imposed a visa requirement on the Czech Republic. The imposition of the visa requirement was the Canadian government’s response to a surge in refugee claims originating from the European Union country.
At the time, Jason Kenney, the Minister of Citizenship and Immigration (the “Minister“) , took to the air waves defending the government’s decision, repeatedly stating that it was absurd that so many claims would originate from a democratic country that was a European Union member, and implied that a high percentage of the Czech refugee claims were fake.
The Minister has made many other statements highlighting that many refugee claims from the Czech Republic are false, including:
In connection with the reported “diplomatic row between the Czech Republic and Canada,” the Minister was reported to have stated: “We are obviously concerned about the number of false refugee claimants” (“Canada rethinks Czech visa law – Minister blames fraud for influx of Roma asylum seekers,” Prague Post, April 23, 2009)
In connection with his reported view that the substantial increase in asylum applications by claimants from the Czech Republic may be attributable to “profiteers,” the Minister was quoted as saying: “If indeed there are commercial operations, I would hope that the Czech authorities are able to identify those and crack down on them” (Prague Post, above).
In connection with his reported threat to re-impose the visa requirements that were lifted on visitors from the Czech Republic in late 2007, the Minister was quoted as stating: “The increase in asylum claims from the Czech Republic – hardly an island of persecution in Europe – is a real concern and Canada is monitoring the situation closely” (Canwest News Service, July 2, 2009)
“The report, as I’ve read it, says there are difficulties for Roma in the Czech Republic. We all know that but the government is doing its best to improve the legal treatment of, and economic opportunities for, members of that community” (“Czech Roma aren’t discriminated against: Kenney,” Canwest News Service, undated)
We’re not talking about the kinds of people that are living in UN refugee camps by the millions, who are victims of war and state-sponsored persecution … It’s an insult to the important concept of refugee protection to allow it [to] be systematically violated by people who are overwhelmingly economic migrants … In addition to creating significant delays, the sheer volume of these claims is undermining our ability to help people fleeing real persecution” (“‘Don’t Fool Us’ – Canada Tells Mexicans and Czechs,” Global Perspectives, August 14, 2009)
In Cervenakova v. Canada (Citizenship and Immigration), 2010 FC 1281 (“Cervenakova“) the appellants argued that the above comments demonstrated that the Minister has a strategy of reducing the level of acceptance of Roma refugee claims, and that this was inappropriate.
The Court was unimpressed with the argument that the Minister’s comments demonstrated a systemic strategy to reduce claims. In doing so, Justice Crampton made an important distinction between the Ministry of Citizenship and Immigration, and the Immigration and Refugee Board (the “Board“). He found that there was no evidence whatsoever of any strategy by the Board to reduce the acceptance rate of Roma refugee claims. Nor did he find that there was any evidence of any bias on the part of the particular board member in the case at hand. This distinguished the matter from Geza v. Canada (Minister of Citizenship and Immigration) , 2006 FCA 124 (“Geza“), where the Federal Court of Appeal raised numerous concerns over the apparent decision of Board management to release a “leading decision” designed in part to deter future Roma claims from Hungary.
Furthermore, and most importantly, even if it were the case that the Minister was biased, there was no proof of any link between the Board and the Minister. The Court was clear that it is entirely appropriate for the Minister to concern himself with, and to comment upon, policy issues that may arise from trends or significant fluctuations in immigration. For the Minister’s comments to have amounted to wrong doing, there would thus have had to be evidence that the Minister had intended to influence the manner in which Board members conducted their assessment, and that the Board members would actually be influenced by the Minister’s statements.
The distinction between the Minister and the Board was further highlighted in Zupko v. Canada (Citizenship and Immigration), 2010 FC 1319 (“Zupko“). In that case, the Minister’s comments about Czech Roma was also raised. Justice Snider noted that:
I accept that the Minister influences Governor-in-Council appointments and reappointments of Board members. However, this is insufficient to found a claim of a reasonable apprehension of bias. Under IRPA, the Board is independent from Citizenship and Immigration Canada (CIC). The Board has its own chairperson. Every member of the Board is statutorily required to swear an oath of office requiring him or her to “faithfully, impartially and to the best of my knowledge and ability, properly carry out the duties of a (member) of the Immigration and Refugee Board”. Members of the Board are appointed for set terms and are paid remuneration that is not dependent on how they decide cases. They can only be removed from office for incapacity, misconduct, incompetence or conflict of interest. I have no evidence, beyond bare speculation, that appointments are made on the basis of prospective members’ views of the Minister’s speeches or that the renewal of Board member appointments is made on the basis of, or influenced by, their refugee claim acceptance rates.
While people may rightly wonder whether the Minister’s comments are appropriate, Cervenakova and Zupko show that they fall far short of showing systemic bias at the Board.