Court opposes refugee judge’s ruling
Roma family wins appeal over rejected asylum claim
Nikoletta Szarka said she cringed when she learned the refugee judge who would preside over her family’s case was going to be David McBean.
And she said it came as no surprise when her family’s refugee claim was rejected last October after a four- year delay by the adjudicator who is known for his extremely low acceptance rate.
Hence, they took their appeal to the Federal Court of Canada — and won.
“Our case is true and we never lied to Mr. McBean, but we felt he would reject us no matter what we had to say,” said Szarka, 25.
Szarka, along with 12 other members of the Roma family, came to Canada from Hungary for asylum in 2011.
“We are just happy that the (federal court) judge heard us and agreed with us.”
In a recent ruling to dismiss the rejection of the Szarkas’ asylum claim and order a new refugee hearing for the family, Justice Patrick Gleeson not only named McBean — a rare occurrence — but was critical of the reasoning behind his decision, calling it “neither intelligible, nor transparent.”
“This court may grant relief where a tribunal has based its decision on an erro- neous finding of fact that it made in a perverse or capricious manner or without regard to the material before it,” Gleeson wrote in his 11-page judgment.
“What I would charitably characterize as a disjointed and disorganized hearing of the matter, coupled with the unexplained delay in rendering a timely decision, may well have contributed to the errors.
“The decision is unreasonable.” Both the Immigration and Refugee Board and McBean declined the Star’s requests for interviews and comment.
The Szarkas’ asylum claim was heard by McBean in five separate sittings, with the last one in January 2015 after the refugee judge said he had failed to question some members of the family.
McBean, in his conclusion of the case, found the family generally lacked credibility and he said he did not believe their claim of persecution and discrimination as ethnic Roma.
“Since I do not believe anything in the claimants’ evidence, to find in their favour, I would have to find that all Roma people in Hungary face more than a mere possibility of persecution regardless of their circumstances,” wrote McBean, who was appointed a refugee judge in 2008 until 2015, when his appointment ended.
He is currently an analyst with the refugee appeal tribunal.
“For this to happen, Hungary would have to essentially be in a state of complete breakdown. It is not.”
In his decision, Gleeson criticized McBean for making his credibility findings based on “microscopic distinctions or conjecture.”
For instance, Gleeson said, McBean challenged the claim by one of the family members that he was detained and struck by police officers for five hours because it didn’t leave marks on his body.
“His evidence was that he was detained and questioned for five hours. He could not identify how many times he was struck but clearly states that the striking was not continuous throughout the five hours,” Gleeson said.
“Member McBean has characterized the evidence in a manner that simply is not consistent with the evidence that was before him.”
The federal judge also chastised McBean for relying on discrepancies between the statement the family gave at the port of entry in 2011 and testimony they gave before the refu- gee tribunal after a four-year lapse to support other negative credibility findings.
Elyse Korman, the Szarkas’ lawyer, said her clients’ refugee hearing was delayed several times, once adjourned by McBean so he could rush to his child’s daycare centre and twice because the refugee judge had not seen a documentary video submitted by the family as evidence for examination.
“Justice Gleeson’s decision is notable because of the strong language by the court, which finds McBean’s decision pervasively unreasonable,” said Korman.
“You don’t often see the refugee judge presiding over a case referred by name in court decisions.”
Szarka is happy with the court order to quash McBean’s decision and refer the case to a new adjudicator for redetermination, but it could take years before the family’s claim is heard again.
The refugee board is struggling to clear some 6,000 legacy claims that had been filed before December 2012, when a new system started imposing statutory timelines to hear new claims and pushed the old claims like the Szarkas’ further back in the queue.
“We are still in limbo. We can’t move on with our lives. We are depressed and stressed,” said Szarka, who now works as a financial services representative in Toronto. “We don’t know when we can have a hearing. This uncertainty is killing us.”