When hope runs out
The Luck of the Draw: Refugee claims
A rare behind-the-scenes look as refugee claimants plead their cases to stay in Canada
More than 10 million people around the world have fled war, famine and abuse in their home countries.
They’re literally dying trying to escape places like Somalia, Eritrea and Syria. After paying their life savings to smugglers to take them someplace safe, their bodies are being pulled from the Mediterranean Sea and African desert.
And for those fortunate enough to reach Canada and claim refugee status, they get one shot at pleading their case.
If they’re lucky, the case will be heard by an Immigration and Refugee Board adjudicator with a record of accepting refugee claims.
If they’re unlucky, the case will be heard by one with a high rate of rejection.
It can be that simple. It can be that cutthroat. It can come down to the luck of the draw.
The person hearing the case — more than anything — determines whether or not refugees will be allowed to stay in Canada, says Osgoode Hall law professor Sean Rehaag.
"The stakes are high for refugee claimants confronting deportation to countries where they may face persecution, torture or death," Rehaag wrote in the 2012 study — Judicial Review of Refugee Determinations: The Luck of the Draw?
He found "vast disparities" in refugee claim rates for Immigration and Refugee Board members in 2011. For example, adjudicator Daniel McSweeney heard 129 cases but didn’t grant a single refugee claim that year. Adjudicator Thomas Pinkney, however, approved nearly 99 per cent of his 746 cases.
ROLLING THE DICE
In 2011, some Immigration and Refugee Board members rarely granted refugee status:
- Daniel McSweeney (0%, 129 decisions);
- David McBean (1.1%, 88 decisions);
- Gordon McRae (14%, 213 decisions).
Other board members granted refugee status in most of the cases they heard:
- Thomas Pinkney (98.7%, 746 decisions);
- Deborah Morrish (98.1%, 320 decisions).
For details see the Canadian Council for Refugees 2011 report.
Those who were rejected and applied to the Federal Court asking for a judicial review were more likely granted a review if a Liberal-appointed judge was looking at it (43%) than a Conservative party appointee (26%).
Female judges were slightly more likely to grant leave to appeal (43%) than male (39%).
The location of the judges reviewing the request for leave to appeal made a difference, too. In Montreal, only 25% of requests for review were granted versus 45% in Toronto and 43% in other Canadian cities. Read the full report
Sources: Citizenship and Immigration Canada; “Judicial Review of Refugee Determinations: The Luck of the Draw?”; Government of Manitoba
Rehaag also looked at 23,000 applications for appeal by rejected claimants to Federal Court and found "troubling inconsistencies."
In those cases, a judicial review was more likely granted if a Liberal-appointed judge was looking at it (43 per cent) compared to a Conservative Party appointee (26 per cent). Female judges were slightly more likely to grant leave to appeal (43 per cent) than male (39 per cent). The location of the judge reviewing the request also made a difference. In Montreal, only 25 per cent of requests for review were granted versus 45 per cent in Toronto and 43 per cent in other Canadian cities.
The results weren’t a surprise to researchers.
"These findings confirm earlier empirical research with every major study over the past 20 years coming to the same conclusion: The process is unfair and needs to be reformed," Rehaag wrote.
That’s what refugee advocates and immigration lawyers have been saying for years.
"Every person selected to come to Canada is selected by a single person," says the head of one of the largest private sponsors of refugees in Canada.
"Those decisions are very difficult to challenge," Tom Denton, executive director of Winnipeg’s Hospitality House Refugee Ministry, says. "They always circle the wagons and defend the decision."
However, the Immigration and Refugee Board says judging its performance solely on statistics is flawed.
"Statistics on acceptance rates provide an insufficient basis on which to draw conclusions concerning the quality and consistency of decision-making at the IRB," the board said in a prepared statement.
"Acceptance rates of individual IRB members do not reflect the many factors — besides the alleged country of persecution and the conditions in that country — that members must consider before making a determination.
"Each claim is decided by an independent decision-maker on its own merits and in accordance with the evidence and submissions made at the hearing. Each case is unique."
Below, we examine the stories of five people who made refugee pleas during two days in October.
Sahra Abdikarim Farah fled the Somalian capital of Mogadishu as a child more than 20 years ago with her mom and brother.
Maki Hassan Ahmed, 28, escaped Somalia.
Oluyemisi Akinbinu, a nurse, fled Nigeria.
Two Eritrean sisters only agreed to share their story if their identities are protected out of fear of retribution, arguing they face prison or death if they go back to Eritrea.
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