The following note and the accompanying data are provided by Sean Rehaag, Associate Professor, Osgoode Hall Law School.
8 March 2017
Data obtained from the Immigration and Refugee Board (IRB) through an Access to Information Request reveals vast disparities in refugee claim recognition rates across decision-makers in 2016. This is consistent with similar findings from prior years for Canada’s previous and new refugee determination systems.
Refugee claims referred to the IRB after 15 December 2012 are subject to the new system, whereas claims referred to the IRB prior to that date are legacy cases that are decided under the old system. Legacy and new system cases are not only decided under different rules, but are also decided by different cohorts of decision-makers. Because of these important differences, the data on RPD decision-making for 2016 is separated into legacy cases and new system cases.
In 2016, some Refugee Protection Division (RPD) decision-makers granted refugee status in most of the cases they heard, including R. Tiwari (95.9%, 74 new system cases), I. Singh (92.5%, 53 new system cases) and K. Genjaga (91.8%, 85 new system cases). Others granted refugee protection much less frequently, including B. Lloyd (23.8%, 63 new system cases), R. Gibson (26.0%, 77 new system cases) and M. Beatty (29.8%, 57 new system cases).
Some of the recognition rate variation may be due to specialization in particular types of cases. For example, some decision-makers specialize in geographic regions with especially high or low refugee claim recognition rates. For further possible explanations for variations in recognition rates, please see an IRB explanatory note, which was provided with a response to an earlier Access to Information Request: http://ccrweb.ca/files/7.irb_explanatory_note-2012.pdf
Although some of the recognition rate variation can be explained by factors related to specialization, the tables below suggest that country of origin specialization alone fails to fully account for the variations. The tables show substantial variance for some decision-makers between the recognition rates that would be predicted based on the average recognition rates for the countries of origins in the cases they decided, and their actual recognition rates. For instance, in new system cases B. Lloyd (predicted 57.4%; actual 23.8%), R. Gibson (predicted 53.9%; actual 26.0%) and J. Daubney (predicted 59.7%; actual 32.3%) had much lower recognition rates than predicted, whereas R. Tiwari (predicted 62.6%, actual 95.9%), J. Eberhard (predicted 56.5%; actual 87.4%) and J. Bousfield (predicted 63.6%; actual: 89.3%) had much higher recognition rates than predicted.
This year’s data also includes information about outcomes on appeals at the IRB’s Refugee Appeal Division (RAD). As with RPD decision-making, outcomes at the RAD appear to vary greatly depending on who serves as the decision-maker. For example, in RAD cases decided on the merits, claimants were much more likely to succeed in their appeals before S.S. Kular (56.5%, 46 cases), R. Dhir (50.5%, 32 cases) or L.F. Agostinho (46.6%, 58 cases) than before L. Favreau (5.3%, 94 cases), Stephen Gallagher (17.1%, 35 cases) or D.E. Sokolyk (20.6%, 63 cases). Remarkably, claimants were more than 10 times as likely to succeed on appeals with S.S. Kular than with L. Favreau.
A few implications of this year’s data are worth highlighting:
- Some countries that are designated as “safe” in Canada’s refugee determination system produced many positive refugee determinations in 2016. Consider for example, Hungary, which had a 66.9% recognition rate, and which produced 184 successful refugee decisions (involving 529 individual claimants) in the new system in 2016. It is difficult to understand how such countries can reasonably be designated as “safe” or what could justify limitations on procedural rights (e.g. expedited processes, limitations on pre-removal risk assessments) that come with such designations. For further analysis, see: http://ssrn.com/abstract=2588058
- The persistence of unexplained variations in recognition rates across adjudicators in the new refugee determination system, combined with the devastating potential impact of false negative refugee decisions (i.e. refugees being returned to face persecution), make robust oversight mechanisms essential. Unfortunately, many refugee claimants continue to be denied access to the appeal at the Immigration and Refugee Board and are ineligible for automatic stays on removal pending judicial review at the Federal Court. This includes large numbers of claimants who transited to Canada via the United States – even though one’s route to Canada has little to do with whether one has a well-founded fear of persecution. For further analysis, see: http://ssrn.com/abstract=2647638
- While substantial variation in recognition rates persist, it should be noted that no new system decision-makers in 2016 who made 20 or more decisions denied every single claim they heard. This is in contrast to the old refugee determination system (S. Roy in 2013: 0.0%, 23 decisions; D. McSweeney in 2011: 0.0%, 127 decisions; D. McBean in 2010: 0.0%, 62 decisions; D. McBean in 2009: 0.0%, 72 decisions). It is worth considering whether this change relates to the professionalization of refugee decision-making and the shift to civil servant decision-makers (rather than political appointees as was the case under the old system).
- The overall success rates on RAD appeals are remarkably high. Indeed, appeals brought by claimants and decided on the merits were granted in almost one third of cases (33.1%). On the one hand, the fact that the RAD is correcting large numbers of claims that were wrongly denied at the RPD emphasizes the importance of this form of oversight. On the other hand, however, it also suggests that there is room for improvement in initial decision-making at the RPD.
For a discussion of the methodology used to obtain the data and to calculate the statistics, as well as an analysis of the implications of similar data for a previous year, see Sean Rehaag, “Troubling Patterns in Canadian Refugee Adjudication” (2008) 39 Ottawa Law Review 335. This article is available via links here: http://ssrn.com/author=404046
Tables and Data for RPD Legacy Cases:
1.1. Summary of Outcomes
1.2. Outcomes by Country
Tables and Data for RPD New System Cases:
2.1. Summary of Outcomes
2.2. Outcomes by Country
Tables and Data for RAD Cases:
To be cited as: Sean Rehaag, “2016 Refugee Claim Data and IRB Member Recognition Rates” (6 March 2017), online: http://ccrweb.ca/en/2016-refugee-claim-data
- The data was obtained through Access to Information Requests A-2016-05215 (RPD legacy), A-2016-05218 (RPD new system) and A-2016-05222 (RAD).
- Tables 1.2 and 2.2 include only cases resulting in positive (including expedited positive) or negative (including NCB) decisions, or where applications were withdrawn or declared abandoned, excluding cases otherwise decided. Tables 1.3-1.5 and 2.3-2.5 include only cases resulting in positive (including expedited positive) or negative (including NCB) decisions (i.e. only cases decided on the merits), excluding all other cases.
- Statistics (including recognition rates) for this year include only principal applicant claims (i.e. excluding associated claims by family members of principal applicants). However, for interested researchers, the RPD data files include lists of associated claims (if any) for each principal applicant claim.
- A small number of cases were decided by panels of Board Members. Only the first listed Board Member is included in the statistics, however all three Board Members are listed in the data files.
- Country of origin averages, predicted recognition rates and predicted no credible basis rates are calculated separately for legacy cases and new system cases.
- The data refers to “recognition rates”. The term “recognition rate” is used to mean the proportion, expressed as a percentage, of positive (including expedited positive) decisions relative to the total number of positive (including expedited positive) and negative (including NCB) decisions, excluding cases that are abandoned, withdrawn or otherwise resolved. This is the standard practice for reporting outcomes by the United Nations High Commissioner for Refugees (http://www.unhcr.org/statistics), and it is the way that both “recognition rates” and “grant rates” were reported for data obtained for prior years (see links below).
- Tables 3.2 through 3.5 only include principal applicant RAD appeals brought by claimants (i.e. excluding appeals brought by the minister) that are decided on the merits (i.e. excluding appeals that are abandoned, withdrawn, not perfected, denied on jurisdictional grounds, or otherwise administratively resolved).
Osgoode Hall Law School