Refugee outcomes vary widely among judges, study finds

Some board members OK’d fewer than a third of asylum applications — but one approved 98.5%

Despite recent reforms to the refugee system, whether an asylum claim is approved or denied has remained the luck of the draw, according to a new report.

Based on Immigration and Refugee Board data, Osgoode Hall law professor Sean Rehaag looked at all 7,818 asylum decisions made in 2015 by 92 board members under the new system. He found their decisions vary widely on claims from the same country.

The Conservative government made these new decision-makers government employees — replacing political appointees — with the hope of making the system free from political influence based on the adjudicators’ political affiliation.

“It’s striking that the refugee determination system is making life-and-death decisions and the outcomes of the claims vary depending on who is making the decision,” Rehaag said of his findings in the report to be released Wednesday.

“It’s striking that the refugee determination system is making life-and-death decisions and the outcomes . . . vary depending on who is making the decision.” SEAN REHAAG OSGOODE HALL LAW PROFESSOR

In 2015, a total of 8,268 new claims were processed; 279 were withdrawn and 160 were deemed abandoned with claimants absent from their hearings. Of the 7,818 decisions rendered, 65 per cent of the claims were granted and 35 per cent denied.

While some decision-makers rarely granted refugee status, Rehaag said others accepted most of their cases.

Member Gloria Moreno, for example, had a grant rate of 27.3 per cent out of 22 decisions, followed by David Young, who only accepted 32.9 per cent in 79 decisions.

At the other end of the spectrum, 98.5 per cent of James Waters’ 65 decisions were positive, with Maria Vega in a close second at 92.9.

Although some of the differences may be due to the members’ specialization in particular types of cases such as geographic regions with especially high or low refugee claim recognition rates, Rehaag compared decisions by different adjudicators on claims from the same country and found the variations unjustified.

Rehaag said his findings speak to the importance of allowing universal access for failed claimants to appeal to the refugee appeal tribunal.

The IRB, however, said outcomes of decisions vary because decision makers render impartial decisions in accordance with the law based on the evidence presented.

“It’s important to note that there are no ‘expected recognition rates’ at the board . . . each case is unique and determined on the basis of its individual merit,” said IRB spokeswoman Anna Pape, adding that failed refugees are entitled to have decisions reviewed by the Federal Court of Canada. The Liberal government has dropped its constitutional challenge to the designated-country-of-origin regime established by its Tory predecessor, intended to deny appeals by claimants from countries presumed to be safe and capable of protecting their nationals. Rehaag said other restrictions to appeal and access to preremoval risk assessment for failed claimants are also still in place.

“It’s like in the criminal system where someone is so guilty that he can’t ever appeal a case,” said Rehaag. “There’s no justification to any of those restrictions.”