The rate at which refugee claims are accepted by Canada's Immigration and Refugee Board varies widely depending on who hears the case, according to a professor who obtained data from the federal government.
Sean Rehaag is an associate professor at Osgoode Hall Law School at York University in Toronto, who specializes in immigration and refugee law and human rights. Through an access to information request, he was able to obtain IRB decisions for refugee claims filed in 2016.
'Some board members are just more likely to believe claimants than other board members.' - Sean Rehaag, university professor
He found a wide variability in acceptance rates, from as low as a quarter of cases heard to a high of 96 per cent.
"I do think that who we appoint as decision-makers really matters," said Rehaag, specifying it is important to "appoint people who have a solid understanding of refugee law and who are not predisposed to denying claims."
Rehaag's work may provide insight into how the 7,000 asylum seekers who have crossed the border on foot at Roxham Road in Hemmingford, Que., will be handled over the next few months as they begin to appear in front of the IRB to test their refugee claims.
Some of that variability in deciding cases is due to the fact that different board members can specialize in different regions of the world.
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"It makes perfect sense that if you are mostly hearing cases today from, let's say, Syria, you are going to have a much higher grant rate than if you were mostly hearing cases from Western European countries, because Syria is much less safe," said Rehaag.
But even when specializations are taken into account, said Rehaag, there's still a lot of variation.
"My view is that the variation that remains reflects subjectivity in decision-making," he said.
Variance to be expected, IRB says
In a statement, IRB spokesperson Line-Alice Guibert-Wolff said variance in acceptance rates from one member to another is to be expected.
"Members render decisions based on the evidence and argumentation presented (or not presented) and each refugee protection claim is unique, and must be determined on its individual merit," she wrote, adding that there are many factors that impact a decision.
While consistency in its decision-making is the goal, Guibert-Wolff said that, in a quasi-judicial setting where each case is determined on its own merits, based on the evidence presented, consistency is not always possible.
However, the variance in acceptance rates is subject to a periodic review.
New system better than old one
The process for people seeking asylum in Canada changed in 2012, affecting how cases were heard and who heard them. Under the old system, decision-makers were political appointees, but under the reformed system, the decision-makers are public servants who are appointed instead.
As a result, Rehaag noticed a change in how many cases are accepted.
"There used to be decision-makers who denied every single case that they heard over several years. Those were political appointees and that no longer happens," he said. "There is still subjectivity in decision-making, but it's not as bad as it was before.
"To me, though, the biggest challenge that the Immigration and Refugee Board is facing right now is a resourcing question," said Rehaag.
He said the government must properly fund the IRB so that there are not only enough decision-makers, but administrators, managers and support staff for the system to work smoothly.
One way to change the variation rate is to create procedural protections, similar to the criminal justice system.
For example, many asylum seekers are denied access to appeal, which Rehaag said would never happen in a criminal law context.
In 2016, 33 per cent of appeals were granted, a rate Rehaag characterizes as "remarkably high."
Some claimants, especially those who came to Canada through the United States, are denied access to appeal and are ineligible for automatic stays of removal pending judicial review at the Federal Court.
That means once they've gotten a negative decision, they are forced to leave Canada quickly.
IRB spokesperson Guibert-Wolff said the majority of refugee claimants can appeal to the refugee appeal division, except if they fall under a few categories listed.