Author ORCID Identifier

Sean Rehaag: 0000-0002-4432-9217

Document Type

Article

Publication Date

Fall 2019

Source Publication

(2019) 45:1 Queen's Law Journal, 1-36

Abstract

Refugee determinations—that is, whether a refugee can immigrate to Canada—are high-stakes decisions. For claimants facing deportation, the decision may be the difference between life or death. However, if applicants wish to obtain judicial review of a decision made by the Immigration and Refugee Board, they must first seek leave from the Federal Court.

In 2012, the author published the results of his first quantitative empirical study of over 23,000 leave applications for judicial review of refugee determinations decided from 2005 to 2010. The result was nothing other than shocking: above all else, an applicant’s likelihood of success rested on the luck of the draw, with the success rate ranging from 1% to 77% depending on the judge they received. Since the initial study was released, the Federal Court has adopted measures in an attempt to address variations in grant rates across judges. Drawing on data collected from over 33,000 online Federal Court dockets from 2008 to 2016, the author examines whether those measures have been successful and what further reforms should be pursued.

The new data shows that the Federal Court’s reaction was insufficient. The author finds that decision-making in refugee law cases remains inconsistent and dependent on the individual judge presiding over the leave determination. To create a meaningful impact, the author recommends three solutions: first, that Parliament abolish or reform the leave requirement as it creates an arbitrary barrier to access fair judicial overview; second, that the Court ensures the merits judge is also the leave judge to reduce the amplification of negative consequence for those who suffer from the luck of the draw; and third, that individual judges adopt approaches at leave and on judicial review to reduce the luck of the draw, including using alternative judicial approaches.

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