The Honourable Ahmed Hussen
Minister of Immigration, Refugees, and Citizenship
365 Laurier Avenue West
March 24, 2017
Dear Minister Hussen,
We are writing to express Amnesty International’s serious concern about the former clients of Viktor Hohots, Erszebet Jaszi, and Joseph Farkas: three lawyers whom the Law Society of Upper found guilty of professional misconduct in relation to their incompetent and inadequate work with Hungarian Roma refugee claimants. Between 2009 and 2013, these lawyers represented hundreds of Hungarian Roma refugee claimants, many of whose claims were subsequently refused. As inadequate legal representation may have undermined the fair adjudication of these refugee claims, we urge you to offer impacted individuals a new chance to claim protection.
The ability of refugee claimants to access representation plays a crucial role in Canada’s refugee determination system. The authors of a 2002 study commissioned by the Department of Justice interviewed over 150 individuals with direct experience in immigration and refugee proceedings in Canada. This study found that there was virtual unanimity that some form of representation was needed to assist claimants with filling out the Personal Information Form and representing them before refugee hearings. An empirical analysis of RPD data from 2012 confirms that counsel is a “major factor affecting outcomes in refugee determinations”.
To attempt to mitigate some of the disadvantages incurred by refugee claimants lacking counsel, the Federal Court has recognized that IRB members may have more onerous obligations to ensure a fair hearing in such cases. Specifically, the Federal Court has considered that “an unrepresented litigant is entitled to every possible and reasonable leeway to present a case in its entirety and that strict technical rules should be relaxed for unrepresented litigants”. However, claimants with incompetent counsel do not benefit from even these minimal procedural accommodations and must rely upon suboptimal legal advice to help navigate complex procedural rules. As a result, those who are represented by incompetent or inadequate counsel are exposed to even graver risks of not having their claims fairly adjudicated because of the likely expectation by Board members that their counsel is providing sufficient legal advice.
In the cases at hand, in addition to inadequately or inaccurately informing their clients about their rights, some refugee claimants were adversely impacted by counsel offering incomplete or inaccurate information to the IRB on the merits of their clients’ claims. For example, the Law Society Tribunal Hearing Division found that Viktor Hohots, Eszebet Jaszi, and Joseph Farkas failed to ensure that Personal Information Forms contained accurate information and did not omit crucial facts. Such errors and omissions can have a decisive impact on refugee claims that often hinge on findings of credibility.
Even more worrying, for many of these clients, Hungary’s inclusion on the list of Designated Countries of Origin (DCO), likely amplified the impacts of substandard legal counsel. Amnesty International Canada has long expressed concern at Canada’s policy of designating certain countries as “safe” and the discriminatory and unfair nature of restricting the rights of refugee claimants based upon nationality. In 2015 the Federal Court agreed and found much of the DCO regime to be discriminatory and struck down the restrictions on appeal rights as contrary to the Charter. However, at the time of the adjudication of the claims of some of the former clients of Viktor Hohots, Erszebet Jaszi, and Joeseph Farkas, the DCO regime was still in effect. As a result, certain claimants had to navigate without competent representation a regime with stricter deadlines and no access to the Refugee Appeal Division.
The former clients of Viktor Hohots, Erszebet Jaszi, and Joeseph Farkas who have returned to Hungary may be at risk due to well-documented discrimination of the Roma people by non-state actors and inadequate responses by state authorities. Such discrimination has at times taken violent forms, such as on 5 August 2012 when hundreds of people descended upon the village of Devecser in Wester Hungary to participate in a demonstration organized by far right groups. Demonstrators gathered outside of homes of Roma residents chanting death threats and threatening to burn down their houses. Demonstrators also threw concrete, stones, and plastic bottles onto the gardens of the houses. Although present, police forces stood idle and did not interfere.
In the aftermath of the Devecser incident, the European Court of Human Rights found that the perpetrators of hateful speeches had “remained virtually without legal consequences” and expressed concern that “the general public might have perceived such practice as legitimization and/or tolerance of such events by the State.” The Court found that the inadequacies of Hungary’s investigation into the hate speech amounted to a violation of Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private and family life.
The events at Devecser are not an isolated instance, but instead form part of a pattern of discrimination against Roma in Hungary. Although racist violence against the Roma community appears to have peaked in 2008 and 2009, hate crimes against Roma have nonetheless continued, all too often accompanied by feeble responses from authorities who often neglect to acknowledge hate motives. For example, in 2015 after assailants broke into a Roma family’s home and shouted “filthy Gypsy, you will die”, police recorded the crime as “illegal entry”. Roma in Hungary also have encountered hateful rhetoric from pro-government media and political figures and face discrimination in employment and housing.
Minister, the well-documented pattern of discrimination against the Roma community in Hungary further underscores the pressing need to take remedial action to ensure that the former clients of V Viktor Hohots, Erszebet Jaszi, and Joeseph Farkas are not at risk due to a miscarriage of justice in Canada. We urge you to take the necessary steps to ensure that these individuals’ claims are re-adjudicated in a fair manner and provide with the opportunity to benefit from competent counsel or reconsidered in some other fair manner that allows their claims for protection to be reliably assessed, such as the proposal of the Redress for Roma Refugee Coalition to establish a new immigration class on public policy grounds or alternatively to issue Temporary Resident Visas to persons concerned.
Thank you for your attention to this important matter.
Amnesty International Canada
951 Mount Pleasant Road,
Toronto, ON M4P 2L7
 See Law Society of Upper Canada v Hohots, 2015 ONLSTH 72; Law Society of Upper Canada v. Hohots, 2015 ONLSTH 205; Law Society of Upper Canada v. Jaszi, 2015 ONLSTH 132; Law Society of Upper Canada v. Jaszi, 2015 ONLSTH 211: Law Society of Upper Canada v. Farkas, 2016 ONLSTH 149
 John Frecker et al., Representation for Immigrants and Refugee Claimants: Final Study Report, Department of Justice Canada, October 2002, pp. 33, 44.
 Sean Rehaag, "The Role of Counsel in Canada 's Refugee Determinations System: An Empirical Assessment" (2011) 49 Osgood Hall U 71 at p. 92.
 Nemeth v. Canada (Minister of Citizenship and Immigration). 2003 FCT 590, paras 10 & 13.
 Da Costa Soares v. Canada (Citizenship and Immigration), 2007 FC 190, para 22.
 See e.g. Law Society of Upper Canada v Hohots, 2015 ONLSTH 72, paras 32-36; Law Society of Upper Canada v. Jaszi, 2015 ONLSTH 132, paras 32-35; Law Society of Upper Canada v. Farkas, 2016 ONLSTH 149, paras 30-31 & 150.
 Amnesty International Canada & Amnisitie internationale Canada francophone, "Unbalanced Reforms: Recommendations with respect-to Bill C-31", 12 April 2012, available: https://www.amnesty.ca/sites/files/ai_brief_bill_c_31_to_parliamentary_committee_0.pdf
 Y.Z. v. Canada (Citizenship and Immigration), 2015 FC 892, paras 124 & 130.
 Kiraly and Domotor v. Hungary, ECHR App No 10851/13, 17 January 2017, para 80.
 Ibid, para 82.
 Barbora Cernusakova, "A drop of hope in the sea of fear: Tackling hate crimes against Roma in Hungary", Amnesty International, 25 January 2017, https://www.amnesty.org/en/latestnews/2017/01/a-drop-of-hope-in-the-sea-of-fear-tackling-hate-crimes-against-roma-in-hungary/.