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\u27s political party of appointment to the impact of the Supreme Court of Canada\u27s 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