Study highlights refugee case errors

Mistakes made in more than one in four cases of applicants rejected, statistical review shows

Adjudicators of refugee cases erred in more than a quarter of the decisions they dismissed, a new study finds, raising concerns over how many claims are wrongfully rejected under Ottawa’s new asylum system.

In the first extensive statistical review of the controversial reforms Canada introduced in 2012, Osgoode Hall Law School researchers found the newly established asylum appeals tribunal granted appeals in 373, or 28 per cent, of the1,337 adjudicated cases. Cases successfully appealed were returned for reconsideration or had the original decisions quashed and reversed.

However, 534, or 28.5 per cent, of the total 1,871 appeal requests made — including 59 by immigration officials to reverse a positive decision — were dismissed on technical and procedural grounds by the Refugee Appeals Division in 2013 and 2014, said the report to be published today in the University of British Columbia Law Review journal.

“The new appeal tribunal appears to be catching many wrongfully denied refugee claims.” SEAN REHAAG STUDY CO-AUTHOR

“The new appeal tribunal appears to be catching many wrongfully denied refugee claims that would likely not have been caught in the old system,” said Osgoode Hall law professor Sean Rehaag, who co-authored the 48-page study with doctoral student Angus Grant. “But the new system also has a serious flaw. Many claimants are denied access to the appeal. This means that they are vulnerable to removal from Canada without oversight.”

Six classes of failed refugees are banned from accessing the appeal tribunal and are only eligible for a judicial review by the Federal Court based on procedural fairness, the report said. Among the groups excluded are some claimants who come to Canada via the United States and are bound by the Canada-U.S. Safe Third Country Agreement and those who come from countries Ottawa has deemed safe, as well as claims denied by refugee judges who ruled them “not credible” and “manifestly unfounded.” In 2013 alone, 2,253 reject- ed claims were automatically denied a chance for appeals because they were covered by the Canada-U.S. Safe Third Country Agreement, which was implemented in 2004 to prevent claimants from double-dipping in the asylum systems.

Another 468 claims were refused for appeals because the claimants were from the list of 42 countries that the Canadian government considers safe and capable of protecting their people from persecution and danger. A total of 120 failed refugee claimants did not have a chance to appeal because refugee judges ruled their claims not credible or unfounded, with several dozen other cases barred from the appeals tribunal on other grounds.

Disallowing appeals could mean life-and-death for some failed refugees who came originally from Syria, Afghanistan, Pakistan and Eritrea — all top 10 refugee producing countries — places that have poor human rights records and high acceptance rates in general.

According to the Immigration and Refugee Board, 22,871 claims were filed under the new system in 2013 and 2014. The acceptance rate, at 63.1 per cent, exceeded recent historical averages of 40 per cent.

However, that was little comfort to the researchers, who also found inconsistency in the Refugee Appeals Division (RAD), where some deci- sion-makers “frequently” granted appeals while others did so far less often and chose to defer to the decisions made by their colleagues at the refugee determination tribunal.

For the RAD alone, appeals granted by tribunal adjudicators ranged from 0 per cent by member Anna Brychcy to100 per cent by her colleague Doris Zicherman. (Interview requests for both were declined by the Immigration and Refugee Board, which oversees the tribunal’s operation.)

“Our conclusions are that the bars on access to the RAD are arbitrary and dangerous, and that the system should be reformed to provide access to the RAD for all refugee claimants,” the study recommended.