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‘Massive difference’ in refugee cases
By Cristin Schmitz

December 16 2011 issue


The Federal Court’s top judge says his court is scrutinizing the validity of a new academic study that casts doubt on whether the court’s judges are always deciding refugee cases on their merits.

A soon-to-be published statistical review of 23,047 refugee cases decided by the Federal Court from 2005 through 2010 discloses large divergence among individual judges in how often they grant leave to appeal to refugee claimants who have been turned down by the Immigration and Refugee Board (IRB), says its author, Osgoode Hall law professor Sean Rehaag.

“Some judges, Justice [Paul] Crampton for example, granted leave in less than two per cent of applications to judicially review refugee decisions…and then other judges, like Justice [Douglas] Campbell, granted leave in over 60 per cent of cases,” Rehaag said.

For most of the judges, Rehaag examined hundreds of decisions. He said some differences in their leave-grant rates were to be expected, but not the “massive difference” he found.

“As a legal scholar looking at this, I’m really troubled,” Rehaag said in an interview. “There’s a whole range of grant rates across judges, which to me just suggests that there isn’t a consistent practice in terms of how strong a case has to be in order to obtain leave — ​and that’s a concern because we are talking about a process where you don’t get reasons when leave is denied…[and] there is no appeal.

“When you look at that kind of variability, and you are the applicant — ​or you are counsel for an applicant — ​you just have to wonder what causes that variability, and are decisions being made on the merits? Or is it really about which judge decides the case?”

Rehaag’s study is being closely examined by the court.

“If professor Rehaag’s statistical study is found to be accurate, based on a large sample and sound methodology, it warrants consideration,” the court’s acting chief justice, Justice Simon Noel, said.

In a written statement, Justice Noel said court representatives will meet with Rehaag next month to review his methodology and results. Judges will also meet with representatives of the immigration and refugee law Bar in January.

“After full consideration of the matter, the court will consider what response is appropriate,” the acting chief justice said.

He noted the court has conducted numerous internal education programs on immigration and refugee law. In 2012 it will hold a previously scheduled program “directly related to applications for leave,” Justice Noel said.

Toronto immigration and refugee law specialist Lorne Waldman called on the court to take action. He said he has experienced cases where very meritorious leave applications were denied by the court.

“The fact that there has been such a large discrepancy in the leave grant rates of the different judges, taken over such a long period, can only lead to the conclusion that the different judges are applying very different standards when deciding leaves,” Waldman said.

“Why should a refugee get leave if it is decided by one judge, and have leave denied if another one looks at it?” he asked. “This gives the impression of arbitrariness and will undermine public confidence in the fairness of the judicial process.”

He added “it is very important that the court takes action to rectify this situation, and restore public confidence. The court should engage in a consultative process to determine how best to proceed.”

Toronto immigration and refugee law specialist Mario Bellissimo said that, based on his own experience, he remains confident that the court’s judges are deciding the cases on the merits.

“If you are discussing disparities [on leave granting, across judges] from 60 per cent to 1.5 per cent, I haven’t seen that,” Bellissimo remarked. He questioned whether Rehaag’s statistics compare “apples to apples” between the judges, since the mix of sub-categories of refugee cases heard by each judge might have been quite different. He noted he has seen judges differ in approach on certain issues, for example, in assessing refugee claimants’ credibility. But in his view, that is to be expected.

“That’s part of judicial independence,” he suggested. “I think you’re going to, across the board, see a fairly swift response, if a procedural breach has been proven, by all of these judges.”

He added that in the past five years the court has been reaching out to the Bar and “to me it seems as though the desire on the court to continue to educate itself on the immigration process has never been higher. I think [clients] should have confidence in the system.”
Rehaag noted that the stakes are high for refugee claimants in Federal Court.

“You are talking about decisions that have dramatic impacts on people’s lives including, in the refugee context, potentially making a decision that will result in someone deported to face persecution, torture, or death.”

His study (a preliminary version will be unveiled in the next few weeks) is the latest to shine a critical spotlight on Canada’s refugee determination system (See sidebar above).

Rehaag said it’s hard to know why the decision-making track records of the Federal Court’s judges are so different, because the judges do not give reasons for granting or denying leave to appeal.

He suggested some of the variability in case outcomes might be explained by the fact that many applicants do not have lawyers to help them win their cases, instead hiring “ghost consultants” to help prepare. A significant number of leave applications are also dismissed because they are never perfected.

“So some of the judges may be deciding more of those [types of cases] than others,” Rehaag said.

Rehaag suggested that requiring judges to give reasons on leave applications would be salutary.

“We have a judicial system founded on common-law principles that give a great deal of importance to reasons, and to deciding like cases in the same way,” Rehaag said. “So in my view the lack of reasons is a problem in terms of justifying the decision…disciplining the decisions,…[and] establishing a consistent jurisprudence on these issues.”

Rehaag acknowledged that such a reform would be expensive. Applications for leave and judicial reviews in refugee cases make up more than half of the Federal Court’s case load — ​5,298 cases out of a total of 9,386 cases launched in 2010.

He suggested other measures to reduce the variability in judges’ leave-granting rates could include abolishing the leave requirement altogether; having the judges sit in panels of two; and internal workshops aimed at assisting the judges to consistently apply the leave standard to produce the same outcomes in like cases.

Rehaag also noted he was surprised at the 44 per cent success rate of applications for judicial review, once they clear what is supposed to be a low “fairly arguable” standard to get leave (only 14 per cent of refugee applicants got leave in 2010).

This “disconnect” suggests the judges are either applying a too-rigorous standard for leave to appeal, or a too-lenient standard of judicial review, he contended. “I’m worried that these statistics suggest that the test the judges are applying is not the ‘reasonably arguable case’ test [for leave] — ​that it’s something higher [such as the balance of probabilities]. Because otherwise the success rates in the ultimate judicial reviews should be lower.”


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