Fluctuations in refugee rulings trouble critics

Some critics call it a lottery, others call it Russian roulette.

A CBC News analysis shows dozens of members of the Immigration and Refugee Board are overwhelmingly refusing claims for asylum in Canada, while others are overwhelmingly approving them.

From 2006 to 2008, more than 30,000 cases were heard by 212 board members.

About 20 per cent of board members — 44 in total — rejected more than 70 per cent of the claims they worked on, although the board's overall rejection rate during that same time was slightly more than 41 per cent.

On the other end of the spectrum, about 30 per cent of the board — 69 members — accepted more than 70 per cent of the claims they heard. The board's acceptance rate during this period was 59 per cent.

The risk of such practices is that it could result in some people with legitimate refugee claims being sent back to their countries to face potential death, and people with phoney claims being allowed to stay in Canada, critics say.

"I think we should be seriously concerned about these fluctuations in grant rates," Osgood Hall law professor Sean Rehaag told CBC News.

"Refugee determinations are life-and-death decisions that are very hard to appeal, very hard to challenge once they've been made. And because of the seriousness of the decisions, it's essential that we get them right."

Rehaag, who has done an independent analysis of the numbers and reached a similar conclusion about the number of board members rejecting most of the claims they hear, said the high levels of accepted claims is just as troubling.

"Too many false positive decisions may jeopardize the refugee determination system as a politically viable institution if public perception that the system is open to abuse becomes widespread," Rehaag wrote in the assessment he conducted based on data of board decisions back in 2006.

Minister offers explanation

Immigration Minister Jason Kenney told CBC News he's noticed the wide fluctuations in the decisions by board members.

"I've asked the IRB chairman about that, and the explanation is that they assign some decision-makers cases from particular countries. So if an IRB member is deciding Mexico, for instance, the overall rejection rate is around 90 per cent. That would be reflected in their statistics. Whereas, if they're making decisions on North Korea or Iran, they'll have a much higher acceptance rate."

Peter Showler, a former chairman of the IRB who is now a law professor at the University of Ottawa, disagreed with this explanation. He said the board assigns teams of members to regions such as Latin America, where there are countries with high and low acceptance rates.

"When you see a variation between acceptance rates that's extreme, that can't be explained by the acceptance rates of the country," he said.

And in the CBC News analysis of the decisions rates, countries with high refusal rates were eliminated, in particular, Mexico and the United States. 

Showler said he isn't surprised by these numbers. He said that without naming individuals, the fluctuation rates reflect a lack of competence or, even worse, bias, especially since politicians admitted several years ago that mistakes would be made.

"Healthy skepticism is fine," Showler said. "It [takes] personal discipline to make sure it doesn't leak into what we call bias."

But Kenney said his government makes sure it appoints quality board members. He said while mistakes can happen, Canada has one of the best refugee-determination systems in the world.

Calls for appeal system

The fact a significant number of board members at the IRB grant refugee claims at rates well above or below the board's normal range of approvals and refusals has prompted Rehaag, Showler and other critics to step up their calls for an appeal division within the IRB. This division would review cases to make sure a board member didn't commit any errors in fact.

Right now, if a refugee claimant's request for asylum is turned down, that person can ask the federal court to review the case, but this is rarely successful.

The high court only agrees to hear about 10 per cent of such requests and when it does, the judges can only determine whether the board member made an error in law, not whether a member made mistakes that led to what may be a faulty judgment.

Refugees can also appeal to stay in Canada on humanitarian grounds, a process that critics such as Rehaag say is less than ideal because no one reviews the original board member's decision to determine if errors were made. Instead, officials within Citizenship and Immigration consider humanitarian concerns, such as whether it's fair to deport someone who has since built a life in Canada by getting married, having kids and working.

In short, the critics say, there is no system in place for correcting errors that board members may be committing.

How did it come to this?

Calls for an internal IRB appeal system began several years ago when the then-Liberal government under Jean Chrétien agreed to reform the IRB. It reduced the number of board members hearing cases from two to one. Politicians on all sides of the House admitted at the time that mistakes were inevitable because only one board member was hearing cases and could no longer benefit from a second member to possibly counterbalance a bad decision.

As a compromise to fears of individual members making mistakes, politicians — including the Conservatives — agreed to put in place an appeal board that could quickly review certain cases. This has yet to happen. Last week, the Conservatives voted against a private members bill sponsored by Bloc Québécois MP Thierry St-Cyr that would have forced the government to establish an appeal board within a certain time period.

Kenney said he voted against the bill because an appeal board on its own would slow down a process he believes is already too long.

"We are in favour of a refugee appeal division within the IRB, but only when we can streamline the system."

When asked when he would implement these reforms, he said that would be Prime Minister Stephen Harper's call.

"I can't comment on the timing. All I can say is the government, the prime minister, has indicated that he's dedicated to repairing the system, to have a balanced system. To provide protection for real asylum claimants and to show to the door those who are gaming the system. Just stay tuned."

But in the meantime, critics say the fluctuations are disturbing. In response to the CBC News analysis, Liberal MP Alexandra Mendez, from Brossard-La Prairie, said refugees have better odds of being accepted or rejected depending on the member who hears their case. She said Canada's refugee determination has come down to a luck of the draw.

"These are lives that are played with … and played with in a very dangerous way. It's Russian roulette. You are being deported to your death, and that has happened."

David McKie is an Ottawa-based producer with the CBC News Investigative Content Unit. For feedback on this story, he can be reached at david_mckie@cbc.ca