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Judicial review of refugee determinations: the luck of the draw?

Judicial review is often the only way to correct errors made by the Immigration and Refugee Board in refugee determinations. Applicants must seek leave from the Federal Court, where a judge will decide if their case is suitable for judicial review. The stakes are high for refugee claimants confronting deportation to countries where they may face persecution, torture or death.

The author reviews over 23 000 applications for judicial review from 2005 to 2010, and finds troubling inconsistency in leave grant rates at the Federal Court. Over 36 per cent of judges deviated by more than 50 per cent from the average rate of granting leave, with twenty judges granting leave more than ten times as often as the judge with the lowest leave grant rate. This inconsistency continues at the judicial review stage. The author considers several external factors that could explain it, from the judge's political party of appointment to the impact of the Supreme Court of Canada's decision on standard of review in Dunsmuir. Ultimately, the author concludes that the outcome of a leave application hinges largely on which judge is assigned to decide the application, and that this poses an arbitrary barrier to access to justice for refugees.

The author considers various solutions to this problem, from abolishing the leave requirement to requiring written reasons or a panel of judges. At a minimum, he suggests that the test for leave should be clarified, as the limited jurisprudence has provided insufficient guidance to judges. Forthcoming reforms to the refugee determination system, including the introduction of the Refugee Appeal Division, will in his view increase rather than diminish the importance of fair and consistent judicial review of refugee determinations.
Introduction

I.   Canada's Refugee Determination System and the Federal Court
      A. Refugee Decisions at the Immigration and Refugee Board
      B. Leave Decisions at the Federal Court
      C. Judicial Review Decisions at the Federal Court
      D. Appeals to the Federal Court of Appeal and the Supreme
          Court of Canada
      E. Subsequent Immigration Procedures
II.  Existing Empirical Studies
      A. Greene
      B. Gould, Sheppard and Wheeldon
      C. Butler
      D. Need for a Further Study
III. The Present Study
      A. Methodology
      B. Overview of the Dataset
      C. Grant Rates for Leave Judges
      D. Grant Rates for Judicial Review Judges
      E. Judge Demographics
      F. Factors Accounting for Variability
IV.  Discussion
      A. Abolishing the Leave Requirement
      B. Reforming the Leave Requirement
      C. Clarifying the Test for Leave
      D. Implications of Announced Reforms to the Refugee
          Determination System
Conclusion
Appendix


Introduction

Refugee determinations are among the most important decisions Canadian administrative tribunals and courts are called upon to make. If errors in first-instance refugee determinations at the Immigration and Refugee Board (IRB) are not caught and corrected through judicial review, refugees may be deported to countries where they face persecution, torture or death. Refugee claimants who apply for judicial review should, therefore, be able to expect that the outcomes of their applications will hinge on the merits of the cases they put forward.

Drawing on a database of over 23 000 applications for judicial review involving refugee matters from 2005 to 2010 in the Federal Court, this study examines whether outcomes in these high-stakes applications turn on their merits or on which judge is assigned to decide the application. Unfortunately, as this article reveals, outcomes at the Federal Court over the past five years all too often come down to the luck of the draw.

The article begins with an overview of Canada's existing refugee determination system, and the role of the Federal Court within that system. Then, after discussing the literature on Federal Court decision making in the refugee law context, it sets out the methodology and the findings of this study. Finally, the article concludes by offering a number of policy recommendations based on the findings of the study and in light of the major reforms to Canada's refugee determination system that are expected in the near future.

I. Canada's Refugee Determination System and the Federal Court

For readers unfamiliar with Canada's existing refugee determination process, this section places Federal Court refugee law decision making in context. It provides an overview of first-instance refugee determinations at the IRB, sets out the processes followed and tests applied in the Federal Court at both the application for leave and the judicial review stages, discusses appeals to the Federal Court of Appeal and the Supreme Court of Canada, and outlines subsequent immigration procedures that unsuccessful refugee claimants may access before removal from Canada.

A. Refugee Decisions at the Immigration and Refugee Board

Canada's inland refugee determination system (1)--which is expected to undergo significant revisions shortly (2)--gives the IRB's Refugee Protection Division (RPD) responsibility for first-instance decisions. (3) Refugee claimants whose cases are eligible for referral to the RPD (4) are entitled to hearings (5) before RPD Members, who are quasi-judicial administrative decision-makers appointed for fixed terms. (6) The purpose of the hearing is to determine whether claimants meet the definitions of "convention refugees" (7) or "persons in need of protection", (8) and to determine whether claimants who are covered by these definitions are nonetheless excluded from refugee protection on grounds related to criminality or violation of human rights. (9)

If the RPD Member denies the refugee claim, written reasons must be given after the hearing. Alternatively, if the RPD Member grants refugee protection, written reasons need only be given at the request of the claimant or the Minister of Citizenship and Immigration (the Minister). (10) In the case of a negative decision, the RPD Member may also declare the claim to have no credible basis if there was no credible or trustworthy evidence that could have justified granting refugee protection. (11) Such a declaration means that the claimant is not entitled to an automatic stay of a removal order pending the determination of any application for judicial review.

Since 2002, Canada's immigration legislation has contained provisions allowing a claimant or the Minister to appeal an RPD decision on its merits to the Refugee Appeal Division (RAD) of the IRB, (12) but those provisions have not yet come into force. (13) The failure to implement the RAD has been sharply criticized by refugee advocates, (14) and is especially problematic in light of studies indicating that refugee determinations at the RPD appear to turn at least in part on extra-legal considerations. (15) Of particular importance are studies showing massive and unexplained variations in refugee claim grant rates from one RPD Member to another, even when factors such as the claimant's country of origin are taken into account. (16) Because the RAD is not available, there is no recourse within the IRB when a claimant believes the RPD erred in a refugee determination, whether because of extra-legal factors such as the assignment of the case to an RPD Member who seldom or never grants refugee protection, (17) or because of more run-of-the-mill errors that are inevitable in any administrative decision-making process. (18)

B. Leave Decisions at the Federal Court

Until the RAD is implemented, the only procedure available when a claimant (or the Minister) is unhappy with a first-instance RPD refugee determination is to apply for judicial review in the Federal Court. (19) Either party may begin the process of judicial review of an RPD decision by filing an application for leave with the Federal Court. (20) With a few exceptions-such as where the RPD declares a claim to have no credible basis-unsuccessful refugee claimants who apply for judicial review generally benefit from an automatic stay on removal, pending the determination of their application. (21)

The timelines for applications for leave are tight: the application must be filed within 15 days after the RPD sends written reasons. (22) The respondent has ten days to indicate opposition to the application by filing a notice to appear. (23) The application must be perfected within 30 days by filing an application record, which includes the decision under review, a memorandum of argument and supporting affidavits. (24) If the respondent wants to oppose the application for leave, the respondent then has 30 days to file a memorandum of argument and supporting affidavits, (25) and the applicant may file a reply within ten days. (26)

A single Federal Court judge (the leave judge) decides whether to grant leave in any given case. Applications are not screened before being assigned to a particular leave judge, so cases are effectively assigned at random. In other words, leave judges-unlike RPD Members who make first-instance refugee determinations-do not specialize in particular types of applications, or applications involving claimants from particular countries. (27)

Hearings on leave determinations are only held in exceptional circumstances, (28) so a leave judge usually decides whether to grant leave solely on the basis of a review of the court file. Reasons for granting or denying leave are not typically provided. When leave is denied, there is no further appeal. (29)

The test for when leave should be granted has not been established by legislation or the rules of the court. As Harrington J noted in Hinton v Canada (Minister of Employment and Immigration), "[t]he parameters which should influence a judge's discretion are not set out. There is very little guiding jurisprudence, which is not surprising given that reasons are usually not provided and that the decision cannot be appealed". (30)

Although there is not much jurisprudence in this area, a handful of decisions do discuss the leave requirement, usually in cases where the test for leave is ancillary to other legal issues. The leading case is Bains v Canada (Minister of Employment and Immigration), (31) where Mahoney J said, in rejecting a constitutional challenge to the leave requirement:

The only question to be considered in disposing of an application for leave ... is whether or not a fairly arguable case is disclosed for the relief proposed to be sought if leave were to be granted.... [T]he requirement for leave is in reality the other side of the coin of the traditional jurisdiction to summarily terminate proceedings that disclose no reasonably arguable case. (32)

Similarly, in Saleh v Canada (Minister of Employment and Immigration), (33) Teitelbaum J offered this analysis of the test for leave: "I am satisfied that on an application for leave one should grant such a request unless it is plain and obvious that the applicant would have no reasonable chance of succeeding". (34)

More recently, in Canadian Council for Refugees v Canada, (35) Hughes J characterized the test for leave in these terms: "the standard for granting an Order permitting judicial review is low. The matter at that point is to be dealt with in a summary way. The standard on a leave application is whether or not a fairly arguable case is disclosed". (36) In Level v Canada (Minister of Citizenship and Immigration), (37) Russell J noted that "[w]hile the leave judge determines if there is a serious question to be tried, it is the judge on judicial review who has the opportunity to fully consider and weigh the merits of the application.... [O]n leave to commence an application, the merits of the parties' arguments are not to be considered". (38)

And finally, in Mina v Canada (Minister of Citizenship and Immigration), (39) a rare case in which reasons were given for denying leave, Shore J said: "In an application for leave and for judicial review, a serious, arguable case with serious issues must be submitted". (40)

The test for leave has therefore been variably described in the following terms: a reasonably arguable case; a fairly arguable case; a serious question to be tried; and whether it is plain and obvious that the applicant has no reasonable prospect of success. However formulated, the test is highly permissive: leave should be granted unless it is clear that the judicial review application has no reasonable chance of success, namely, where it is so obvious that the application must fail that a determination on the merits is unnecessary.

C. Judicial Review Decisions at the Federal Court

In cases where leave is granted, a hearing will be scheduled between 30 and 90 days later. (41) The leave judge will also set timelines for filing further documents, including the tribunal record from the IRB, and further memoranda of argument from the parties. (42)

A Federal Court judge (JR judge), other than the leave judge, presides over the hearing. The JR judge must determine whether the applicant has established that the RPD committed a reviewable and material error. The Federal Court can overturn an RPD decision where the RPD (1) acted outside or beyond its jurisdiction; (2) breached principles of natural justice or procedural fairness; (3) erred in law; (4) made findings of fact that were perverse or capricious, or were made without due regard to the available evidence; (5) acted as a result of fraud or perjury; or (6) acted contrary to law. (43)

Judicial review is an administrative law process and is subject to Canadian administrative law norms, including norms on the level of deference courts must show administrative tribunals. The Federal Court is generally deferential toward findings of fact and of mixed fact and law made by RPD Members. In reviewing such findings it applies a standard of "reasonableness", (44) on which the question is not whether the JR judge would have made different findings but whether the findings that were made were reasonably open to the RPD Member and were adequately justified. As the Supreme Court put it in Dunsmuir v New Brunswick, (45)

[a] court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (46)

In immigration and refugee matters, the Federal Court applies the more exacting standard of "correctness" in some issues of law, including issues of jurisdiction and procedural fairness. (47) When using this standard of review, the JR judge essentially reconsiders the issue de novo and shows no deference to the RPD. (48)

Where the JR judge is of the view that (on the appropriate standard of review) the RPD Member committed a reviewable and material error, the judge typically sets aside the RPD decision and orders that the matter be referred back for redetermination by a different RPD Member. The JR judge can, however, provide more specific directions to the RPD, including a direction that the claimant be accorded refugee protection. (49) The JR judge usually gives written reasons for the judgment, although orders can be issued without reasons.

D. Appeals to the Federal Court of Appeal and the Supreme Court of Canada

In cases where leave has been granted, the decision of the JR judge on the merits may be subject to appeal to the Federal Court of Appeal, but on tightly limited grounds. A party may appeal only if the JR judge issuing the Federal Court decision certifies that the decision raises a "serious question of general importance ... and states the question". (50) Where a JR judge certifies a question and a party decides to proceed with an appeal, the Federal Court of Appeal is not limited to answering only the stated question but can reconsider all relevant issues. (51)

In a case where the leave judge denies leave, or where leave is granted but the JR judge does not certify questions for appeal, the decision is final and cannot be appealed. (52) Where a question is certified for appeal by the JR judge and the case proceeds to the Federal Court of Appeal, a further appeal to the Supreme Court of Canada is possible, but only with leave from the Supreme Court. Such leave is given only in rare cases that raise issues of public importance. (53)

E. Subsequent Immigration Procedures

Aside from appeals, unsuccessful refugee claimants may access subsequent immigration procedures, including Humanitarian and Compassionate applications (H&C applications) and Pre-Removal Risk Assessments (PRRAs).

An H&C application is a request that the Minister exercise discretion to make an exception from Canada's regular immigration requirements on humanitarian grounds-on the grounds that the applicant would face "unusual, undeserved or disproportionate hardship" if required to leave Canada. (54) Usually the requested exception is that the applicant be given permanent residence in Canada, even though she does not qualify for any existing immigration program. While many unsuccessful refugee claimants make H&C applications, it should be noted that these applications do not provide refugees who allege that the RPD erroneously denied their claims with the opportunity to have their cases reassessed before they are removed from Canada. H&C applicants can be removed from the country pending determination of their applications. Moreover, since 2010, the Minister (when assessing an H&C application) has been prohibited from taking into account any risks to the claimant that could have been considered in the refugee determination process. (55)

PRRAs represent a final opportunity, before removal from Canada, for applicants to demonstrate that they face risks of persecution, risks to life, risks of torture or risks of cruel and unusual treatment. (56) Once again, however, this procedure does not provide an opportunity to correct errors made by the RPD. Applicants who made refugee claims may only present evidence which arose after the refugee hearing or which the claimant could not reasonably have presented at the hearing. (57) As a result, for unsuccessful refugee claimants, PRRAs are generally of no use unless something happens between the hearing and the PRRA decision (58) to enable a claimant to meet the criteria for refugee status--for example, if conditions in the claimant's country have deteriorated.

Although immigration procedures are available, they do not provide individuals whose claims were erroneously denied by the RPD with a meaningful opportunity to show that they should not be deported from Canada to face persecution, torture or even death. As a result, the right of unsuccessful refugee claimants to access Federal Court judicial review of negative RPD determinations represents the sole opportunity for the Canadian legal system to catch mistakes in the refugee determination process. (59)

Against this background, let us now turn to an assessment of how well the judicial review process for unsuccessful refugee claimants actually works.

II. Existing Empirical Studies

Several studies have offered empirical assessments of judicial review of refugee determinations in Canada. These studies are part of a growing body of empirical legal scholarship examining judicial decision making in Canada and elsewhere. (60) This wider scholarship demonstrates that outcomes in judicial processes may often turn on factors other than the merits of a case. Among the myriad of extra-legal factors that have been found to drive outcomes are the judge assigned to hear the case and the various aspects of that judge's identity such as gender, political party of appointment and political orientation. (61)

Of course, some variability in the approaches of different judges is to be expected, as they bring a variety of life experiences to the bench. (62) Indeed, some of the strongest arguments for increasing the demographic diversity of the judiciary invoke benefits to the courts--and the likelihood that they would at times come to different substantive conclusions--if currently unrepresented life experiences and perspectives were brought onto the bench. (63) Nonetheless, the rule of law may be undermined if extra-legal factors come to play a central role in determining judicial outcomes. (64) When one looks at judicial reviews of refugee determinations, the question therefore is not whether outcomes will vary with the judge who hears the case--surely they will. Rather, the question is whether the degree of variability is within acceptable bounds, and if not, what can be done about it. (65)

A. Greene

As discussed below, the leave requirement for unsuccessful refugee claimants who seek judicial review first came into effect in 1989 amid significant controversy. (66) Soon afterwards, Ian Greene undertook an empirical study of how refugee claimants fared in Federal Court applications for leave. (67) In an article published in 1992 setting out preliminary results, Greene explained why the study was done:

A uniform and just application of the law is particularly important in cases of refugee determination because of the severe human consequences which may result if the law is misapplied. Further, failure to ensure that the law is consistently applied may violate guarantees of fundamental justice in Section 7 of the Canadian Charter of Rights and Freedoms and the right to a fair hearing in accordance with the principles of fundamental justice under Section 2(e) of the Canadian Bill of Rights. (68)

To test whether the new leave requirement posed barriers to a "uniform and just application of the law" in refugee determinations, the study reviewed court files in all applications for leave filed in 1990, leading to a dataset of 2 081 applications. (69) It found statistically significant correlations--at unusually high confidence levels--between individual leave judges and leave outcomes. (70) In fact, the variations in leave grant rates from one judge to another were described as "nothing short of astounding". (71) For example, while the average leave grant rate for all cases reviewed was 25%, (72) Pratte J granted leave in only 14% of his cases (203 decisions), and Desjardins J granted leave in 48% of hers (188 decisions). (73)

Greene's analysis also showed that patterns in the assignment of cases to particular judges did not appear to account for those variations. (74) Nonetheless, to further test whether the caseloads assigned to individual judges differed in some relevant way, Greene retained an expert in immigration law to conduct a blind review of 390 randomly selected case files to independently assess whether, in that expert's view, leave should have been granted. (75) The purpose of this exercise was not to discern whether leave really ought to have been granted in each case, but whether the rates at which the expert would have granted leave varied for applications decided by different judges. It turned out that the expert's leave grant rate was consistent across cases assigned to different leave judges. This further supported the conclusion that variations in leave grant rates across judges related to how individual judges decided the applications, rather than to patterns in the cases assigned to them. (76) On the basis of the findings, Greene said that "[t]here is no escaping the conclusion that given the same law and the same kind of factual issues, some judges took a 'strict' approach to granting leave ... while others took a more 'liberal' approach". (77)

Where a judicial review application was heard and determined on the merits after leave had been granted, Greene went on to compare those final outcomes in cases where leave was granted by "strict" judges and by "liberal" judges, in an attempt to see "whether the 'strict' judges were better at screening out weak cases at the leave stage than the 'liberal' judges". (78) Interestingly, however, no statistically significant correlation was found between rates of success on the merits (once leave was granted) and whether the leave judge had a high or low rate of granting leave. (79) This led the authors to conclude that "refugee applicants who were unfortunate enough to have their leave applications come before a 'strict' judge may have had less access to justice in the long run than those who were lucky enough to have their applications come before a more 'liberal' judge". (80)

Greene and Shaffer argued that the study conclusively demonstrated that the leave requirement, as it was applied in 1990, limited access by refugee claimants to an effective and fair appeal process, in a way that arguably violated constitutional norms of procedural justice. (81) One way to address this concern, they suggested, was the adoption of a practice common in many appellate courts of deciding cases by panels of several judges, "to mitigate the effects of individual judicial predispositions". (82) Another suggestion was for the court to modify the leave process so that when one judge refused to grant leave, the matter would be automatically reviewed by a second judge who could either confirm the decision or grant leave. (83)

B. Gould, Sheppard and Wheeldon

Jon Gould, Colleen Sheppard and Johannes Wheeldon updated the Greene study with new data from 2003. They examined a sample of 617 court files in applications filed in 2003 for leave and judicial review involving immigration decisions. (84) Because they were interested in examining both leave decisions and decisions on the merits where leave was granted, they oversampled cases where leave was granted to ensure a sufficiently large pool of cases decided on the merits. This led to two groups of cases: 275 applications where leave was denied, and 342 applications where leave was granted. Various data points were collected for each application, including outcomes and demographic details of applicants, judges and counsel. A panel of five immigration law experts was also consulted to assess the "ideological reputation" of the judges whose decisions were under consideration. (85)

The study found that a variety of factors correlated with patterns in outcomes both at the leave stage and on the merits. These factors included the type of application (immigration applicant versus refugee applicant) (86) and the gender, age and country of origin of the applicant. (87) Applicants represented by lawyers were much more likely to be granted leave than unrepresented applicants. (88) In the authors' words, "these findings ... are troubling.... A system designed to provide due process of law ought not to be tilted in favor of those who can hire an experienced lawyer, and yet that is exactly what is happening". (89) The personal characteristics of judges were also found to be important factors. For example, at the leave stage, "a judge's ideology had a significant, powerful effect ... with liberal judges more likely than conservative judges to grant an applicant leave". (90) The same pattern was observed in decisions on the merits. (91) In addition, the authors found that: "Francophone judges [were] ... more skeptical of the merits of immigration appeals, even when controlling for the fact that they [were] more conservative than their Anglophone colleagues". (92)

Gould, Sheppard and Wheeldon concluded that their findings reaffirmed the Greene study's central conclusion--namely, that outcomes hinged at least in part on extra-legal factors, including which judge was assigned to decide an application. (93) This underscored concerns they suggested about how the Federal Court treated immigration and asylum cases and raised "questions about the very legitimacy of Canada's immigration and refugee system". (94)

C. Butler

A more recent investigative report by journalist Don Butler echoes some of the findings of the Gould, Sheppard and Wheeldon study. (95) Butler reviewed "480 immigration, refugee and citizenship decisions issued by the Federal Court between January and June 2011". (96) Cases were identified by searching reasons for decisions posted on the Federal Court's website for applications involving citizenship or immigration, and then by excluding decisions dealing only with procedural matters, such as costs awards. (97) Outcomes in the identified cases were then examined in light of which judge issued the decision, the judge's gender and political party of appointment, and whether the judge was from Quebec. (98)

Butler reported that there were significant differences in rates at which different judges overturned immigration decisions. For example, Blanchard J overturned such decisions in 14% of the seven cases identified, whereas Campbell J overturned them in 100% of the 16 cases identified. More generally, according to Butler, "outcomes appear to split on party lines", with judges appointed by Liberal Party prime ministers more likely to overturn immigration decisions than judges appointed by Progressive Conservative or Conservative party prime ministers. Male judges and judges from Quebec were less likely to grant judicial review than female judges and judges from the rest of Canada. (99)

D. Need for a Further Study

Because the Greene study examined all applications for leave in refugee cases filed in 1990, it provides compelling evidence that different judges were applying the leave requirement inconsistently. However, it is important to recall the context. The study examined leave decisions at a time when the leave requirement was a new and controversial procedure. It had only recently come into effect, and the criteria for granting leave had yet to be definitively established through case law. The strong association the study found between outcomes and judges could arguably be partly attributed to the novelty of the leave procedure.

The Gould, Sheppard and Wheeldon study does suggest that such inconsistencies between judges persisted in 2003, long after the Federal Court had developed substantial experience with the leave requirement. That study also helpfully examines a variety of other factors that may affect outcomes-especially claimant demographics and legal representation. At the same time, however, the study has some methodological limitations, most notably problems related to sample size and to the representativeness of the samples, given that cases granted leave were oversampled. Also, the methodology of assessing the ideology of judges using a panel of experts is questionable. Judges who, in the experience of the panel, have more frequently denied applications are likely to be viewed as more "conservative" by such a panel, so what is actually being measured is not "ideology" but the judge's past practice. Drawing conclusions about Francophone judges being more "skeptical" than their Anglophone counterparts is also problematic: how do we know, for example, whether these differences are attributable to the predilections of these two groups of judges or to patterns in the applications presented to the two groups? What if, for example, there is varying quality in terms of legal representation in Anglophone and Francophone communities--perhaps as a result of differing provincial legal aid policies in Quebec and Ontario?

Finally, the Butler study, while once again suggesting that variability across judges continues to be a concern, also has methodological limitations. Unlike the two earlier studies, Butler did not consult court files but examined online reasons for decisions. Because reasons are not typically provided for leave decisions, the study dealt only with decisions on the merits--and even then, only when reasons for decisions were issued, which, as noted above, is not always the case. Also, Butler calculated grant rates for individual judges based on small datasets, so the representativeness of the sample is questionable. Moreover, he did not consider whether there may be systemic factors that account to some extent for the variations in grant rates for judges from Quebec and the rest of Canada. (100)

III. The Present Study

In my view, a new study was needed on whether, after more than two decades of judicial experience with the leave requirement, the troubling variability so compellingly established in the Greene study persists. To overcome some of the methodological limitations of the two more recent studies discussed above, the new study had to be based on a large dataset that covered all refugee applications filed over a significant period of time; had to track outcomes at both the leave and merits stages; and had to look at the degree to which outcomes vary from judge to judge. This is the study I have undertaken. To get a more complete picture of recent decision making at the Federal Court in judicial reviews of refugee determinations, I have examined all Federal Court cases involving judicial review of IRB refugee determinations over several years--both leave decisions and decisions on the merits.

A. Methodology (101)

To gather the data for the study, a computer program (102) was written to obtain information from the Federal Court's online Court Index and Docket (103) for all immigration applications filed from 2005 to 2010. (104) The data gathered electronically includes: (1) court number; (2) style of cause; (3) date the application was filed; (4) office where the application was filed; and (5) the Court's categorization of the type and nature of the proceeding. This produced a database of 40 334 applications.

Then, because the study is only interested in applications for judicial review of refugee determinations, cases were filtered out where the Federal Court categorized them as involving matters other than refugee determinations. (105) It should be noted that a number of the cases categorized by the Federal Court as involving refugee determinations appeared to involve other matters (such as H&C applications and PRRAs). These cases were retained in the dataset. (106) In other words, the dataset includes all applications from 2005 to 2010 that the Federal Court categorized as involving refugee determinations, whether or not that categorization was accurate. This produced a database of 23 047 applications.

The next step in the study was for research assistants to manually review online court dockets for each of the 23 047 applications categorized as involving a refugee determination. In this review, research assistants coded information about each application, including (where available): (1) whether the government was the applicant; (2) whether the application was perfected; (3) whether the respondent opposed leave; (4) leave judge; (5) leave outcome; (6) date of leave outcome; (7) JR judge; (8) judicial review outcome; and (9) date of judicial review outcome. In a few cases, the outcome was not clear from the online docket, or appeared to be wrongly recorded. For those cases, where reasons for decisions were available in online legal databases, the reasons were consulted. Where reasons for decisions were not available, copies of the relevant court orders were obtained from the Federal Court Registry.

At the same time, other research assistants gathered data about Federal Court judges from online sources, including biographies on the Federal Court's website (107) and Orders-in-Council on the Privy Council Office's website. (108) The data collected for each judge included: (1) gender; (2) date of appointment; and (3) political party of appointment. (109)

Data verification, including inter-coder checks, was undertaken to correct errors in coding throughout the process. When all the coding and data verification was complete, a random sample of 100 cases was reviewed, and no coding errors were detected in that review. It should be noted, however, that no attempt was made to measure the accuracy of the information in the online Federal Court dockets themselves.

B. Overview of the Dataset

Table 1 provides an overview of outcomes in the 23 047 applications considered in this study. A few points are worth noting.

First, applications for judicial review in refugee determinations rarely succeed. Indeed, only 6.35% of all applications for judicial review involving refugee determinations from 2005 to 2010 ultimately succeeded.

Second, given the low leave grant rate (14.44%), the success rate at the merits stage in cases where leave is granted (43.98%) is surprisingly high. Recall that the test for leave is supposed to be very permissive, namely, leave should be granted unless it is clear that there is no reasonable prospect that the application will succeed on the merits. (110) If only applications that clearly cannot succeed on the merits fail at the leave stage, and if the vast majority of applications do not pass that stage, one might expect success rates on the merits to be lower in cases where leave is granted. The combination of low leave-granting rates and high success rates once leave is granted may lead one to wonder whether leave is too often being withheld in cases where there is some modest prospect of success. (111)

Third, the vast majority of applications (99.42%) are made by claimants seeking to challenge negative refugee determinations, rather than by the Minister seeking to challenge positive refugee determinations. When the Minister does bring an application, however, it is much more likely to succeed. Applications by the Minister are 4.14 times as likely to be granted leave (58.65%) than are applications brought by unsuccessful refugee claimants (14.18%). While applications brought by the Minister are also more likely to succeed on judicial review after leave has been granted (62.82%) than applications brought by unsuccessful refugee claimants (43.53%), the difference is not as pronounced (1.44 times as likely to succeed). Still, overall, applications brought by the Minister from 2005 to 2010 were ultimately successful in overturning the refugee determination 36.84% of the time, whereas the equivalent figure for applications brought by unsuccessful claimants was only 6.18%.

Fourth, it is apparent that many applications for leave are never considered on their merits. For example, a significant proportion of applications (20.24%) are denied leave without having been perfected. This means that the applicant in those cases--almost always an unsuccessful refugee claimant--did not file an application record justifying the application, so the application was rejected without being considered by the leave judge. Similarly, in a few cases (2.15%) the application was withdrawn by the applicant before a leave decision was made, which again means that the application was never considered by a judge. (112)

Finally, leave was granted unopposed in a small number of cases (1.81%), meaning that the respondent (usually the Minister) consented to the application, or indicated no opposition to leave being granted, or simply failed to file a memorandum of argument opposing leave. It should be noted that in a handful of cases, leave was denied despite the lack of opposition by the respondent. (113) In some cases, judicial review was granted at the merits stage on consent (9.22% of cases where leave was granted). Also, in some cases, the application was withdrawn after leave was given (4.27% of cases where leave was given)--although it is not clear that this means the application necessarily failed. For example, the application may have been withdrawn because the applicant was granted permanent residence in Canada through other immigration procedures, such as an H&C application.

Because the present study is mainly interested in how the leave requirement operates and whether outcomes vary from judge to judge, the remainder of the data presented focuses only on perfected applications (because all judges will similarly deny unperfected applications), on applications where the judge deciding the case is identified (which eliminates cases withdrawn before the leave determination and a few cases where the name of the judge was not indicated in the online court docket), and on applications brought by unsuccessful refugee claimants (because applications brought by the Minister are exceptional, and raise a different set of issues than applications brought by claimants).

C. Grant Rates for Leave Judges

The most remarkable finding of the study is the enormous variation in the leave grant rates of judges in perfected applications brought by refugee claimants, which can be seen in Table 2. For example, Campbell J granted leave in 77.97% of the applications he decided, whereas Crampton J (now the Chief Justice) granted leave only 1.36% of the time. In other words, though both judges decided over 200 applications, refugee claimants were an incredible 57.33 times as likely to obtain leave from Campbell J as from Crampton J. It should be noted that Campbell J was clearly an outlier, with a leave grant rate 2.31 times as high as anyone else (Shore J was second at 33.71%). Nonetheless, 20 judges had leave grant rates more than ten times as high as Crampton J, and six had rates more than ten times as high as Near J (2.50%), who had the second lowest leave grant rate.

In addition to the surprisingly large variations in leave grant rates between judges, it should also be noted that those rates follow a largely linear distribution (for the shape of the distribution, see Chart 1). Rather than most judges having leave grant rates near the average of 16.38% and only a few judges deviating substantially from that mean (which would be a standard distribution), a substantial proportion had rates that departed significantly from the average. Indeed, 36% of judges deviated by more than 50% from the average. (114)

Another key finding of the study is that the identity of the leave judge has a strong effect on the likelihood that an application will ultimately succeed (that the first instance refugee determination will be overturned on judicial review). Thus, for example, in 21.43% of the cases where Campbell J decided the leave applications, the refugee determination was ultimately overturned by the Federal Court, whereas the equivalent figure for Near J was 2.45%. Similarly, when Russell J was the leave judge, 15.60% of applications ultimately succeeded, but for Noel J the equivalent figure was only 2.97%. In fact, when the judge deciding leave was among those with the ten highest grant rates (deciding 50 or more applications), the ultimate success rate was 12.19%, while for those with the ten lowest grant rates, the ultimate success rate was 3.38%. In other words, applicants were 3.61 times as likely to succeed in overturning a first-instance refugee decision when leave was decided by a judge whose leave grant rate was in the top ten than when it was decided by one in the bottom ten.

Interestingly, although applicants generally did better when their applications were assigned to judges with higher leave grant rates, this was not always the case. For instance, Shore J's leave grant rate (33.71%) was 3.67 times as high as Layden-Stevenson J's (9.22%), but an applicant was actually more likely to succeed in overturning a first-instance refugee determination when Layden-Stevenson J decided leave (11.91%) than when Shore J decided leave (9.33%). Similarly, even though Zinn J (20.57%) was almost twice as likely to grant leave as Gibson J (10.81%), an application was slightly more likely to succeed when Gibson J was the leave judge (9.71%) than when Zinn J was the leave judge (8.47%). Some leave judges would therefore appear to be better than others at picking cases that will ultimately succeed on the merits.

D. Grant Rates for Judicial Review Judges

As can be seen in Table 3, there are also massive disparities in grant rates among judges who decide applications on the merits, after leave has been granted. In other words, the identity of the JR judge is also a key factor in the ultimate success of an application for judicial review (although it is, of course, a factor that only comes into play in the relatively few applications that succeed at the leave stage). Some JR judges grant judicial review on the merits in most of the applications they decide, such as Campbell J (92.31%) and Hansen J (72.97%). Others do so much less frequently, including Boivin J (7.89%) and Blais J (13.33%).

Some of the judges who are outliers when deciding leave are also outliers when they serve as JR judges deciding cases on their merits. This includes, at the high end, Campbell J (leave: 77.97%; JR: 92.31%) and O'Keefe J (leave: 25.91%; JR: 66.32%), and at the low end, Crampton J (leave: 1.36%; JR: 18.60%) and Boivin J (leave: 6.47%; JR 7.89%). Interestingly, however, this is not always the case. For example, Shore J has an unusually high leave grant rate (33.71%), and a below-average JR grant rate (33.81%). Similarly, Harrington J has an unusually low leave grant rate (6.18%), but only a slightly below-average JR grant rate (35.96%).

E. Judge Demographics

Table 4 breaks down results in applications, at both the leave stage and the JR stage, based on demographic characteristics of the deciding judge at each stage. Specifically, it shows grant rates broken down by the political party that appointed the judge and by his or her gender.

There are differences, at both stages, between the grant rates of male and female judges, with male leave judges slightly more likely to grant leave (16.52%) as compared to female leave judges (15.85%), and female JR judges somewhat more likely to grant JR on the merits (42.88%) as compared to male JR judges (38.78%). (115) However, these differences are quite small--and it has to be kept in mind that the average grant rates are sensitive to outliers. For example, if Campbell J's leave decisions are taken out of the analysis, the leave grant rates for male leave judges drops to 15.48%.

There are more substantial differences, again at both the leave stage and the JR stage, between grant rates of judges appointed by Liberal Party prime ministers (Liberal PMs) and by Progressive Conservative and Conservative Party prime ministers (Conservative PMs). Leave judges appointed by Liberal PMs were 1.60 times as likely to grant leave (17.64%) than their counterparts appointed by Conservative PMs (11.00%). Similarly, in cases where leave was granted, JR judges appointed by Liberal PMs were 1.46 times as likely to grant judicial review on the merits (42.69%) than JR judges appointed by Conservative PMs (29.14%).

It should be noted, however, that variations in grant rates among individual judges appointed by PMs from the same political party were more pronounced than variations between judges appointed by PMs from different parties. For example, the leave grant rates of Blais J (3.10%), Harrington J (6.18%), Shore J (33.71%) and Campbell J (77.97%) vary enormously even though they were all appointed by Liberal PMs.

F. Factors Accounting for Variability

While the variations in grant rates between judges are very large, a number of factors might partly account for these variations. For example, applications brought in one part of the country may be better founded than applications brought in other areas, so judges deciding applications from different parts of the country might justifiably have different grant rates. This might happen if there were differences in the quality of legal representation in various cities (maybe because of varying legal aid policies), or if first-instance decision-makers at the RPD in different cities were more or less likely to make reviewable errors.

As can be seen in Table 5, the city where an application is filed does seem to make an important difference (though the table does not explain why this would be the case). Most applications (92.93%) are filed in either Toronto or Montreal. Applicants were 1.42 times as likely to get leave in Toronto (17.73%) as in Montreal (12.52%). Similarly, in cases where leave was granted, applicants were 1.78 times as likely to succeed on the merits in Toronto (45.01%) as in Montreal (25.33%).

However, as Table 6 indicates, even when one looks at applications filed in only one city, variations in grant rates across judges remain. For example, in applications filed in Toronto, Finckenstein J (1.27%), Crampton J (1.64%) and Near J (2.17%) granted leave very infrequently, whereas Campbell J (78.61%), Shore J (41.22%) and Bedard J (36.36%) were much more likely to grant leave. It would therefore appear that the city where the application was filed cannot account for the massive variations in grant rates across judges.

Another factor that could potentially explain part of the variation in grant rates is the point in time when an application was filed. For example, over time, first-instance RPD decision makers might be more or less likely to commit reviewable errors. Or major changes in the law might have made the Federal Court more or less deferential toward administrative tribunals. During the period of the study, the Supreme Court decision in Dunsmuir significantly modified standards of review in administrative law, (116) so it may be that judges deciding cases mostly before or mostly after that decision would have different grant rates.

Table 7, however, shows that there is no consistent trend in grant rates--at either the leave or merits stages--over the period of the study. It would, therefore, seem that the point in time when a judge made his or her decisions does not account for variations in grant rates found in the study.

Table 8 provides further support for this conclusion. JR grant rates in cases where leave was granted were somewhat higher in applications filed before Dunsmuir (42.42%) than after (36.14%). But leave grant rates actually increased slightly (from 16.08% to 16.73%) in the period after Dunsmuir. These competing trends suggest that Dunsmuir likely did not have a straightforward or significant impact on the outcomes of applications.

We can thus reject the hypothesis that variations in grant rates can be explained by whether a judge decided most of his or her cases before or after Dunsmuir.

It appears, then, that neither the time nor location of the judicial review application accounts for the extreme variability in leave and JR grant rates across judges. Moreover, recall that cases are randomly assigned to leave judges without being screened on the merits by the registrar. (117) This means that, at least as between leave judges who decided large numbers of cases, it is unlikely that other factors which may affect the likelihood of success on individual applications (such as the identity of the RPD first-instance decision-maker or the quality of particular counsel) could account for variations in the rate at which those judges granted leave.
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Title Annotation:Introduction through III. The Present Study, p. 1-30; Canada
Author:Rehaag, Sean
Publication:Queen's Law Journal
Date:Sep 22, 2012
Words:8200
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