Decisions by Refugee Appeal Division members vary widely

An analysis of past decisions by current members of the Immigration and Refugee Board's appeal division shows wide discrepancies in the rate of positive decisions, a fact that's concerning to many refugee advocates.

Eighteen out of the 19 members currently listed on the IRB's website as adjudicators for the two-year-old Refugee Appeal Division worked previously for the Refugee Protection Division, which makes the initial decision on whether to grant refugee status.

CBC News analyzed decisions to grant or deny refugee status in 2013 by the 18 members now at the appeal division and found that several members decided to grant refugee status at a rate far below the average.

The analysis is based on decision rates compiled by refugee law expert Sean Rehaag at Osgoode Hall Law School in Toronto.

For example, four of the members granted refugee status to claimants less than 20 per cent of the time. Another eight granted refugee status more than 20 but less than 30 per cent of the time.

One board member who is now serving on the Refugee Appeal Division, Daniel McSweeney, had a zero per cent positive rate of decision-making in 2013 — in other words he turned down all claims for refugee status that he evaluated that year.

In addition, the average rate of positive decisions by adjudicators now at the appeal division is significantly lower than that of all members of the Refugee Protection Division. Of all decisions made under the old system of adjudication in 2013 (now called "legacy cases"), the average rate of positive decisions was 38.1 per cent. The average rate for the 18 current appeal division members was 30.9 per cent.

"It's totally inappropriate," said Peter Showler of the presence of so many people with low rates of positive decisions on the appeal body. "There clearly are members with an extreme negative bias and it is outrageous that they would be appointed to the Refugee Appeal Division."

Showler, professor emeritus at the University of Ottawa and a former IRB chair, said it would be equally disturbing to have so many people at the unusually high end of the decision-making spectrum.

 In a written response, the IRB wrote that acceptance rates for members of the Refugee Protection Division "depend on a number of factors, including the nature of the caseload assigned to a member, and the geographic specialization of the member. Numbers on individual member acceptance rates do not reflect the many factors ...that members must consider before making a determination."

"The credibility of the claimants often can be a determining factor," an official wrote.

The official also said Daniel McSweeney was not authorized to speak to the media. 

Many appeal division members appointed

In an earlier response to questions about the selection of appeal division members, the IRB confirmed many had been reassigned from their duties at the Refugee Protection Division, where they had been appointed by the minister of immigration under the old system of selection.

In 2013, the government changed the way in which IRB board members are selected to a merit-based process designed to attract public service applicants, although appeal division members are still appointments.

It's really unfortunate that we still have a system where we play member roulette every time you go into the hearing room because you know that if you get the wrong number your case is doomed.- Refugee lawyer Lorne Waldman

In addition to the 19 members listed on its website, the IRB says there is also one part-time member, three assistant deputy chairpersons and one deputy chairperson.

The appeal division member with the highest rate of positive decisions on refugee cases in 2013 was David J. Lowe, at 75 per cent, followed by Rena Dhir, at 51.8.

"Whenever we see such striking discrepancies in the rates of decision, it raises question about fairness and internal consistency," refugee law expert Sharry Aiken of Queen's University said.

Aiken cautioned that many variables can influence outcomes and could account for some variance, not least of which is country of origin. 

"But on its face, when one sees a discrepancy of this nature, one would want to review very carefully what's going on to make sure fairness isn't compromised for these individuals," she said.

Refugee lawyer Lorne Waldman said he's felt the impact of the inconsistency among decision-makers when he's defended cases before the appeal division.

"It's really unfortunate that we still have a system where we play member roulette every time you go into the hearing room because you know that if you get the wrong number your case is doomed," he said. 

"I had a case yesterday, I was sitting there waiting for my member with great trepidation because it was one of the strongest cases I've had in a long time ... and yet I knew that if I drew a certain legacy member, I was going to end up with a negative decision because their acceptance rates are zero or close to zero."