The Asylum Crapshoot: Problems with Canada’s Refugee “Protection” Division and Judicial Review

Professor Sean Rehaag, of Osgoode Hall Law School at York University, published a paper last year entitled “Judicial Review of Refugee Determinations: The Luck of the Draw?” This paper explained the Canadian refugee claims review process and examined the system of judicial review related to refugee claims, finding that the system has some serious problems. Here I’ll try to summarize its findings and give some of my
reactions.

First Instance: Night of the Living (and Potentially Racist) Bureaucrats

Rehaag briefly describes the Canadian refugee claims system:

Canada’s inland refugee determination system—which is expected to undergo significant revisions shortly—gives the IRB’s Refugee Protection Division (RPD) responsibility for first-instance decisions. Refugee claimants whose cases are eligible for referral to the RPD are entitled to hearings before RPD Members, who are quasi-judicial administrative decision-makers appointed for fixed terms. The purpose of the hearing is to determine whether claimants meet the definitions of “convention refugees” or “persons in need of protection”, and to determine whether claimants who are covered by these definitions are nonetheless excluded from refugee protection on grounds related to criminality or violation of human rights

Hold on.

So, the people determining refugee claims are not judges, but “quasi-judicial administrative decision-makers”? Looking into this more, to be an RPD adjudicator, not only do you not need to have been appointed to the bench as a judge or justice of the peace, you do not even need formal legal training. This seems like it might create serious issues of subjectivity. When judges are appointed (in an ideal world) they are meant to be trusted to examine cases on the basis of written law and precedent, as opposed to their personal biases. Without the filter of formal legal training, the likelihood that RPD members will allow personal opinions and biases to affect their decisions, whether this means sympathy for certain causes, prejudices or even mood, seems much higher.This concern is borne out in Rehaag’s paper, as there are

…massive and unexplained variations in refugee claim grant rates from one RPD Member to another, even when factors such as the claimant’s country of origin are taken into account

Already, this seems to be a system ripe for abuse and politicization.

The Appeals Process: This Time, It’s Personal

At the time the paper was written, appeals of RPD decisions, either by the refugee claimant or the Minister of Immigration, went straight to the Federal Court, where a two-step process took place. First, a single judge reviewed the RPD decision to determine if the claimant ought be granted “leave”, i.e., a stay of deportation until such time that their case can be reviewed on its merits, deciding whether or not there is any reasonable chance that an appeal on merits will succeed. This was done primarily through review of the court file, although on rare occasions a hearing is held. Reasons for decision were not given. The test was meant to be highly permissive. An application for leave had to filed within 15 days, and perfected within the next 30, a fairly onerous burden for the most vulnerable refugees.

If application for leave is granted, the refugee claimant has an additional period of time (30-90 days) to prepare their appeal for another federal court justice, who through the process of judicial review would determine whether or not the RPD had erred in their decision, upholding or reversing their decision. Here, the court is generally deferential to the RPD, with evidence of “reviewable and material error” necessary. In the meantime, other paths to landed status can be pursued, such as Humanitarian and Compassionate applications (H&C applications) and Pre-Removal Risk Assessments (PRRAs), but these have a low success rate.

In theory this two-layer system seems relatively strong and free from abuse or bias. However, there are three major problems. First, even if you accept that judges are generally unbiased arbiters of the law, if the Federal Court is meant to be deferential to RPD decisions, and these decisions are inherently flawed, reviewing them does not fix the fundamental problem. Instead, it only works on the margins, reversing the most egregious cases or cases that have strong (or any) legal representation, privileging better-off refugee claimants.

Second, what if the presiding judges are more subjective than we might like to think? Rehaag’s paper shows that there is evidence that they are. Analysis of the data shows that there are “massive unexplained variations” in leave determination rates between judges, with a large but still substantial difference in the determination rates on merit through judicial review. At its most extreme, the judge most likely to grant leave to appealing claimants was an incredible 57 times more likely to grant leave than the judge least likely to grant leave. As well, more than 1/3 of judges deviated from the average leave granting rate (16.38%) by more than 50%. Most of this cannot be explained through factors like location or timeframe. Thus, it is clear that whether a refugee claimant receives a fair hearing may depend on “luck of the draw”, something that is totally anathema to the Canadian justice system’s ethos. If we can’t trust the judges to interpret law without bias, literally their only job (in a sense), who can we trust?

Third, the courts simply seem to have a surprisingly low rate of leave granting, with a surprisingly high number of decisions reversed on merit. If a case with any reasonable chance ought to go through, these trends should be reversed, with even marginal cases being granted the right to a full review but most of these being rejected on merit. The fact that this is not the case suggests that a not-insignificant number of people may have, through being denied a review of their first-instance RPD decision, been wrongly rejected as refugees, or at least been denied their full right to an appeal.

Our New System: Worse than the Old System?

The new system created under the Protecting Canada’s Immigration System Act has some major differences with the old system. It puts the power of first-instance refugee claim determination into the hands of civil servants instead of designated appointees, adds an additional layer of appeals process, the Refugee Appeal Division (RAD), and adds the differentiation of the designated-country-of-origin (DCO) list to refugee claims. As previously discussed, the DCO list allows the Minister of Immigration, ostensibly based on objective criteria but really at their own discretion, to declare countries “safe”, thus significantly limiting individuals from these countries’ access to asylum. As well, if refugees have arrived in a group and the Minister suspects connection to human smuggling or considers them otherwise suspect, they can declare the refugee claimants “irregular”, stripping them of even more rights.

All of these changes create new challenges. While arguably the creation of the RAD, long a goal of immigration reformers, is a move in the right direction, the law also gives RPD members a greater ability to declare claims “manifestly unfounded”, blocking them from any appeals. The new civil bureaucracy in this case could, due to their appointment under a government explicitly hostile towards certain groups of migrants, particularly the Roma, end up following political imperatives more than the hodge-podge of the current system. Finally, the shortened preparation times all around, especially for DCO-list refugees, means that many people who have escaped persecution with nothing but the clothes on their back will be turned away because they lack the proper documentation, an almost Kafkaesque system.

I’ll elaborate on my thoughts (well, musings more like it, I don’t claim to be an expert by any stretch) on immigration reform and refugee rights more broadly in another post, but needless to say our current system is clearly failing, especially for the most vulnerable.

(Reposted from Roma Community Toronto, 24 May 2013)