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Judicial Review of Refugee Determinations: The Luck of the Draw?
(2012) 38:1 Queen’s LJ 1
Excerpt pp. 47-50
[Footnotes have been converted into endnotes.]
With regard to [the] expected reforms, it should be noted that advocates for refugees have long called for the implementation of an appeal on the merits of the RAD [Refugee Appeal Division], partly because of limitations in the Federal Court judicial review process. If the RAD is in fact brought into existence through the combined BRRA [Balanced Refugee Reform Act] and PCISA [Protecting Canada’s Immigration System Act] reforms, some might argue that resorting to Federal Court judicial review will no longer be the only means to catch errors made by a single adjudicator, because the RAD will at least in some cases be able to do that. This might arguably lead some to conclude that consistency in Federal Court decision making in this area (and the troubling findings of the present study) will become less important.
In my view, however, the opposite conclusion is warranted for several reasons. First, there are concerns about the new cohort of civil servant RPD members who will be making first instance refugee determinations. If the transition is handled properly, this change presents an opportunity to enhance professionalism and consistency in decision making at the RPD.183 If it is handled incorrectly, the independence of the IRB as a whole may be compromised. That would be a serious matter, given how vigorously the current government makes known its doubts about the bona fides of whole groups of refugee claimants.184 Moreover, regardless of how well the transition is handled, there will inevitably be a long period of learning and adjustment for new decision makers, at both the RPD and RAD levels, and more errors will be made during that period.
Second, the expedited timelines will likely lead to more errors in refugee adjudication. Errors resulting from unreasonably short time limits will disproportionately affect the most vulnerable claimants, including LGBTQ claimants, gender-based claimants and those who have suffered torture or severe trauma. These types of claimants need the most time to retain and instruct counsel, to prepare their applications and to prepare for their refugee hearings.185
Third, and in my view most importantly, while the implementation of an appeal on the merits to the RAD is a positive step, the limits on access to the RAD under the BRRA/PCISA reforms are extremely worrisome. Depending on which countries are selected as designated countries of origin, large numbers of refugee claimants may not have access to the RAD.186 Worse yet, RPD members will be able to insulate their decisions from review by the RAD simply by declaring claims to be manifestly unfounded or to have no credible basis. There is evidence that some RPD members with unusually low refugee claim grant rates are also much more likely to make these sorts of declarations.187
Taken together, the expected BRRA/PCISA reforms do, in my view, offer important opportunities to improve the refugee determination process. However some of the limitations of these reforms (especially the extremely tight timelines and restrictions on access to an appeal) indicate that striving for access to a fair and consistent decision-making process for Federal Court review of IRB refugee determinations remains at least as pressing as ever.
This study, using a comprehensive dataset of over 23 000 cases from 2005 to 2010, demonstrates that outcomes in applications for judicial review in the refugee law context all too often hinge on who decides the case. The study also shows that the leave requirement, at least as it has been applied in recent years, creates an arbitrary limit on access to justice for refugees. These findings confirm earlier empirical research, with every major study over the past 20 years coming to essentially the same conclusion: the process is unfair and needs to be reformed. While there are reasons to be concerned about consistency and fairness at both the leave stage and the merits stage of judicial review, inconsistency at the leave stage affects far more applicants, and the decision-making process at the leave stage lacks even the modest accountability and transparency found at the merits stage. As a result, this article has set out a number of possible reforms, including eliminating the leave requirement, reforming the procedures through which leave is decided, and clarifying the test for leave.
I would like to end by emphasizing a point made earlier: it goes without saying that all judicial decision making inevitably involves some degree of variability across judges. Judges are human beings, and we want them to be human beings. We want them to be more than machines applying algorithms. The purpose of this study was not merely to show that who decides an application matters, and that in borderline cases an applicant might succeed before one judge but fail before another; its purpose was to see whether the processes followed and the tests applied in applications for judicial review of refugee determinations ensure an acceptable level of consistency and fairness. In my view, the data shows that the level of variability at the leave stage is too high, and that the status quo is unsustainable—both in terms of the processes followed and the tests applied. Reform is urgently needed, especially in light of the anticipated changes to Canada’s refugee determination system.
183. The existing system whereby RPD members are governor-in-council appointees has long been criticized, both for the quality of appointees and the frequent use of appointments for political patronage. For a summary of some of the critiques, see Rehaag, “Troubling”, supra note 16 at 355–58.
184. See e.g. Clark Campbell, “Minister calls for overhaul of Canada’s refugee system”, The Globe and Mail (15 July 2009) A1, online: The Globe and Mail <http://www. theglobeandmail.com>; Nicholas Keung, “Czech Roma to sue board for ‘biases,’ lawyer says”, Toronto Star (17 July 2009) A12, online: The Star <http://www.thestar.com>; Jason Kenney, “Canada’s commitment to refugees: Celebrating successes and reflecting on the challenges ahead” (Speaking Notes, 27 November 2008), online: Citizenship and Immigration Canada Media Centre <http://www.cic.gc.ca/english/department/media>.
185. As Peter Showler, former Chair of the IRB, testifying before the Parliamentary committee considering these reforms, stated: “In regard to the [revised] refugee claim process itself, I must say candidly that the time limits are simply too short and will undermine its fairness and its efficiency”. House of Commons, Evidence at the Standing Committee on Citizenship and Immigration, 41st Parl, 1st Sess (30 April 2012) (Peter Showler) at 1540. See also Canadian Bar Association, National Immigration Law Section, “Bill C-31: Protecting Canada’s Immigration System Act” (April 2012), Brief submitted to the Standing Committee on Citizenship and Immigration at 2–4, 16–19, 22–23, online: The Canadian Bar Association <http://www.cba.org> [CBA, “Bill C-31 Brief”]; Canadian Council for Refugees, “Bill C31—Diminishing Refugee Protection” (April 2012), Brief submitted to the Standing Committee on Citizenship and Immigration at 4–8 (on file with author) [Refugee Forum, “Bill C-31 Brief”]; Canadian Civil Liberties Association, “Bill C-31: An Unjustified Assault on the Rights of People in Danger” (30 April 2012), Brief submitted to the Standing Committee on Citizenship and Immigration at 7, online: Canadian Civil Liberties Association <http://ccla.org> [CCLA, “Bill C-31 Brief”].
186. CBA, “Bill C-31 Brief”, supra note 185 at 19–21; CARL, “Bill C-31 Brief”, supra note 185 at 4–5; Refugee Forum, “Bill C-31 Brief”, supra note 185 at 8–10; CCLA, “Bill C-31 Brief”, supra note 185 at 7.
187. For example, RPD Member David McBean, who had a 0% refugee claim grant rate from 2008 to 2010, was much more likely than his colleagues to declare claims to have no credible basis. See Keung, “Luck”, supra note 17 at A1; Nicholas Keung, “Widowed, wounded, no refuge; federal judge blasts ruling by refugee board member with zero acceptance rate”, Toronto Star (9 March 2011) A1, online” The Star <http://www.thestar. com>. Data on refugee claim grant rates (including “no credible basis rates”) for all RPD members from 2006 to 2011 is available via links at Rehaag, “Data”, supra note 16.