Professor Sean Rehaag of Osgoode Hall has recently posted on SSRN a disturbing statistical analysis of the Federal Court of Canada’s decisions on applications for judicial review of refugee protection determinations by the Immigration and Refugee Board. His main conclusion, based on a study of more than 20,000 cases filed between 2006 and 2010, is that there shocking variations in the rates at which individual FCC judges grant leave for such applications to be heard on the merits (with one judge granting almost 80% of leave applications, and several in over 25%, while for some others, the rate is below 5%), or allow the applications on the merits (with several judges allowing over half of the applications they hear, while many others allow less than 20%). Having clerked at the FCC (for a judge who, on both scores, is somewhat less favourable than average to the applicants), I have to admit that I had no idea that these variations would be so large. I knew that different judges had different approaches to these (as well as any other) cases, but the extent of the disparities is startling.
Prof. Rehaag thinks that leave is not granted often enough, and that in the perfect world the requirement to seek leave would be abolished legislatively or, failing that, declared unconstitutional. If that’s not possible, he suggests a number of other reforms that would make obtaining leave easier. My anecdotal experience makes me wonder if he is right. The experience is one-sided, because I was not at all involved in leave decisions (nor were, I believe, any other clerks). But among the couple dozen merits cases I worked on (including reviews both of refugee status determinations and of other IRB decisions), there certainly were some where the leave grants looked very soft. Nonetheless, prof. Rehaag’s numbers show that applications on which leave is granted by “generous” judges are not necessarily less likely to succeed on the merits than those granted by more “stringent” ones, which means that he seems to be right that many applications that have merit are thrown out simply because the judge reviewing them at the leave stage was a “stringent” one.
Whatever one thinks of the FCC’s overall treatment of immigration cases – whether one is convinced that it is insensitive to the immigrants’ and refugees’ plight, or that its judges are a bunch of pro-fraudster obstructionists, as Jason Kenney apparently believes, one ought to be distressed at these findings of inconsistency between the court’s members. For my part, having had the privilege of interacting with some of them and helping in their work, I am convinced that they are decent, conscientious, and hard-working people. But the fact that conscientious, hard-working people seem to fail so miserably at producing consistent results, to which, I am sure, they would all agree they aspire, is all the more disturbing. As prof. Rehaag writes, judges are only human, and some discrepancies between individual approaches are inevitable, but surely not such glaring differences.