Black against a wall

>> Lawyer charges racial bias in refugee hearing

by CRAIG SEGAL

Noella Mihayo is a 22-year-old Tutsi Rwandan refugee fighting to stay in Canada. She says Hutus killed her parents and her brothers will force her to become the second wife of a 60-year-old Rwandan war criminal if Canada forces her return to Rwanda. The Immigration and Refugee Board (IRB) members who refused her application question the veracity of her story. Her lawyer charges they are "clearly racially biased" and "incompetent."

Mihayo's lawyer, Stewart Istvanffy, is challenging the IRB ruling in federal court. He says the two IRB members who refused Mihayo's refugee request refused all of the 30 to 40 black African refugee cases he brought before them in the year 2000. "Every case from black Africa that I presented before that panel of Michel Goulet and Jeannine Beaubien-Duque was refused, and often the people were treated in an outrageous fashion during the hearing," says Istvanffy. "They were treated like criminals."

Beaubien-Duque and Goulet do not have backgrounds in refugee law. Before being appointed to the IRB in 1998, Beaubien-Duque was a corporate development strategy advisor and researcher. Goulet gave customized courses for companies and colleges. He was an IRB board member from 1998 until April 19, 2001. The IRB would not say why he stopped working as a board member, but Istvanffy blames his performance. "It's a good thing he's no longer working for the IRB," says Istvanffy. "I assume it's because of his incompetence. And I don't think that he had as high a level of political protection as Beaubien-Duque," he adds, referring to the fact that IRB members are appointed by the federal Liberal government. "I think her reputation is so bad, I was surprised her contract was renewed in April of this year. And I'm not the only one who thinks so."

Istvanffy says he wrote a formal complaint against Beaubien-Duque in September 2000, after which the IRB removed her from his cases. Istvanffy says he challenged five of her decisions at the federal level. He lost two and won three. In one ruling, Istvanffy says, a federal court judge found instances of racial bias.

But the IRB lawyer says Istvanffy's case against the IRB members is weak. "He said there was a climate of racial animosity," says François Joyal. "I said that was very close to calling them racist. That's a very serious allegation and you have to back that up. And he was nowhere near backing that up."

Child of genocide

Mihayo refused requests for an interview, but court records reveal she is a college-educated trilingual Catholic, born in Kigali, the capital of Rwanda. She says her parents were Tutsis, an ethnic minority in Rwanda. They died as a result of the 1994 genocide there, when the majority Hutus killed over a million people, most of them Tutsis. After learning her brothers planned to marry her off to an alleged war criminal, she says she fled to the States on a fake Kenyan passport she bought in Nairobi for $50 (U.S.).

Mihayo arrived at the Quebec Philipsburg border on February 12, 2000, at midnight with $100 (U.S.) in her pocket. "The guy at the booth in Canada told me... I should come back in the morning," she told the IRB, according to court records obtained by the Mirror. "I managed to convince him to let me go to the toilet, and when I was in the toilet I refused to leave." In the morning Mihayo filled out her refugee application.

Mihayo told the IRB that the man her brothers want her to marry is a womanizer who beats his current wife and gave her an STD. "This is a person who people are scared of," she told IRB members in July. "I was not ready for this and will never be. I was a 20-year-old virgin with a good education--the ultimate prize--and my mother was no longer standing in the way of my brothers' control. Rwanda took my father. They took my mother. I can't sit back and wait for them to take me too."

Mihayo's lawyer says the forced marriage violates his client's human rights. Istvanffy says Canada, which cannot send refugees back to their home country if doing so puts their lives in danger, is legally obliged to protect Mihayo by international law.

But the IRB doesn't buy her story. In their decision, dated January 23, 2001, they describe her testimony as "not spontaneous," "very vague" and "contradictory." Their I.D. analyst found her papers--sent from Kenya--showed "characteristics of counterfeit documents." But Joyal, the IRB lawyer, admits the expert did not compare Mihayo's I.D. to similar papers. "They didn't have any documents to compare them to," he says. "But if they could that would be great."

Istvanffy says he will challenge the decision if they lose. Goulet and Beaubien-Duque could not be reached by press time.