Analysis of data for 2011 shows that the chance of success of a refugee’s plea to stay in Canada can depend on who hears the case at the Immigration and Refugee Board (IRB).
Sean Rehaag, an assistant professor at York University’s Osgoode Hall Law School, requested data through Access to Information on all IRB claims heard in 2011 and analyzed the thousands of cases.
"I feel there is some support for allegations that some people are unlucky," Rehaag said.
Rehaag’s analysis shows that Daniel McSweeney approved none of the 127 cases he adjudicated in 2011. He joined the IRB in 2007 and had a yes rate of 42.47 per cent that first year. Then his acceptances decreased.
Another adjudicator, David McBean, approved two of the 108 cases he heard last year. He had rejected all of the 169 cases he handled between 2008 and 2010.
Others granted refugee status in many of the cases they heard, including Jacques Fortin, who approved 81.3 per cent of 269 decisions and Harriet Wolman who approved 77.8 per cent of 189 decisions.
Rehaag’s findings for 2011 are similar to statistics he compiled from 2006 to 2010 and made public last year. The latest results, he says, show inconsistent decision-making continues at the refugee board.
"It is important to note," says Rehaag, "that some of the recognition rate variation may be due to member specialization in particular types of cases.
"For example, some members are assigned a large number of expedited cases, which generally result in positive decisions. Similarly, some members specialize in geographic regions with especially high or low refugee claim recognition rates."
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However, Rehaag says he has taken factors related to specialization into consideration and there are still "massive disparities" in case decisions.
"What worries me, what is really problematic, is that these kinds of decisions are life and death. If the board doesn’t recognize refugee status when the person meets the definition, the person will be sent back to a country where he will be potentially tortured, persecuted or killed. That’s what really worries me," says Rehaag, who points out there is no way to appeal an adjudicator’s decision except on legal technical grounds.
If one adjudicator says no the claimant is deported.
New immigration bill coming
The law professor is releasing his report as MPs consider a new immigration bill that changes the refugee claim process in Canada. Bill C-31 introduces an appeal board and the legislation is expected to pass this summer.
The minister of Immigration and Citizenship, Jason Kenney, told CBC's Power and Politics in February that the legislation is the highest benchmark in fairness.
He said, "What we are proposing goes well beyond our obligations under either the Canadian Charter of Rights and the UN Convention on Refugees."
Kenney went on to say: "If I were a refugee advocate, I would be supporting our approach to this because we are finally putting in place the Refugee Appeal Division, a full fact-based appeal. For the vast majority of claimants that get rejected at the IRB this is enhancing fairness not reducing it."
Yet, a major issue for people who advocate for refugee claimants is that, according to a numeric formula in the bill, countries with high rejection rates now will be considered safe countries. Claimants from safe countries will not be allowed to appeal.
"Part of what my data shows is that there is inconsistent first-instance decision making at the IRB and that it is important for everyone to have access to a refugee appeal division," says Rehaag.
It is expected, for example, that Mexico, a country with an 82.9 per cent rejection rate overall, will be designated a safe country even though Canada accepted 1,043 refugee claimants from Mexico in 2011.
Last year Mexico was the country with the highest number of refugee claimants to Canada – 6114.
The director of the FCJ Refugee Centre in Toronto, Francisco Rico, says it's expected that many Mexicans will stop applying for refugee status, but will, instead, simply enter Canada and live underground in the country.
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