Revisiting the Luck of the Draw.

• Author: Rehaag, Sean

Introduction I. Methodology II. Results of the Study A. Overview of Dataset B. Outcomes for Individual Leave Judges C. Outcomes for Individual Judicial Review Judges D. Conclusions from the Study III. Implications & Recommendations A. Recommendation for Parliament: Abolish or Reform the Leave Requirement B. Recommendation for the Court: Same Leave Judge as Merits Judge C. Recommendation for Judges: Alternative Judicial Approaches Conclusion Introduction

In late 2011, I began circulating drafts of an article that was later published in the Queen's Law Journal, "Judicial Review of Refugee Determinations: The Luck of the Draw?" (1) The article set out the results of a quantitative empirical study of over 23,000 applications for leave to judicially review refugee determinations decided from 2005 to 2010 in the Canadian Federal Court. The study found that outcomes in these applications often hinged on which judge was assigned to decide whether to grant leave, with the leave grant rates of individual judges ranging from 1.36% to 77.97%. (2) The study concluded that the leave requirement imposed an "arbitrary limit on access to justice for refugees". (3)

Several institutions responded to the study. There was media attention, (4) including a call from The Globe and Mail's Editorial Board for measures to be taken to reduce unfairness in the process. (5) As the Editorial Board put it,

some variation is to be expected; however, when the disparities are this wide, justice becomes arbitrary. The court should consider what reforms it can implement to improve the court's transparency and consistency, and to restore the public's confidence.... Access to justice for refugee claimants should not resemble a lottery system. (6) The Federal Court responded to the study by inviting me to discuss the research with several members of the Court. (7) In addition, Paul Crampton CJ--who was himself an outlier on the low end in terms of leave grant rates during the period of the study (8)--participated in a video interview with The Lawyers Weekly, discussing the results of the study at length. (9) In that interview, he noted that "the subjective nature of judging" means that "different judges are always going to look at similar problems somewhat differently". (10) However, he went on to acknowledge that high levels of variability in leave grant rates across judges is "an issue that we perceive as being a troublesome one because it does have a fairness dimension to it". (11) He then suggested that he would welcome input from stakeholders about what, if anything, could be done to address the issue. (12) He also indicated that he planned to hold a meeting of members of the Court to discuss the test for leave and the standard of review. (13) He emphasized that because judicial independence must be respected, this meeting would not be intended to force judges to apply the tests in particular ways. (14) Rather, he hoped that by sharing their perspectives with one another, judges would develop "enriched understanding of different ways of looking at issues", and that this would lead to "greater convergence". (15)

Similar points about a planned meeting of the Court to discuss the leave test as a way to encourage "convergence" were made by the Chief Justice in a meeting of a Federal Court Bench and Bar Liaison Committee (Liaison Committee). (16) At another Liaison Committee meeting, the Chief Justice indicated that "the court is currently developing a list of factors for justices to consider in making leave decisions". (17) At the next meeting of the Liaison Committee, however, the Chief Justice noted that the Rules Committee of the Court had considered the proposal to create a list of factors in making leave decisions, but that some members of the Rules Committee felt that the Rules Committee lacked jurisdiction to do this. (18) At that same Liaison Committee meeting, it was noted that the Court had held the planned discussion about applying the leave test through an education session, and that one judge who served on the Liaison Committee found that session "very useful". (19)

The Federal Court's Strategic Plan (2014-2019) also responded to the variations in leave grant rates identified in the study:

In late 2011, the Court became aware of the initial results of a study which indicates that there is a significant variation in the rate at which individual judges of the Court grant Leave for judicial review under the Immigration and Refugee Protection Act. Variation in judicial outcomes is a common feature of our system of law. However, the Court recognizes that there is a point at which the variation in judicial outcomes may raise questions of predictability, certainty and consistency. Since becoming aware of this issue, the Court has actively endeavoured to achieve a better understanding of it and the extent to which it may engage these types of questions. The Court also continues to assess whether there may be steps that can be taken to address this issue in a manner that does not encroach upon the judicial independence of individual members of the Court. (20) It has been over five years since the release of the study that prompted the Court's efforts to achieve "greater convergence" in leave grant rates. Now is, therefore, an opportune time to revisit the study by looking at more recent data, particularly given that the Federal Court's Chief Justice suggested that it is an "unanswered question" whether the results of the study would be the same if it were repeated "allowing time for the new measures implemented after the first study to be felt". (21) This article represents my attempt to answer this question. It draws on data from over 33,000 applications for judicial review involving refugee determinations filed from 2008 to 2016 to examine trends in outcomes and to explore whether the Court's efforts to reduce leave grant rate variations have been successful.

The article begins by describing the methodology used for the study. Next it sets out the results of the study. Finally, it concludes with recommendations for enhancing fairness in the judicial review process.

At the risk of ruining the suspense for the reader, the main conclusion of the study is that the luck of the draw remains a stubbornly persistent feature of the judicial review process. Notwithstanding efforts made by the Court in this area, from 2013 to 2016 one's chances of success in an application for judicial review of a negative refugee determination continued to hinge in large part on which judge was assigned to decide the case. This is unacceptable. Refugee determinations involve life and death questions. Judicial oversight of these determinations should be based on the facts of the case and on the law, not on arbitrary considerations such as who decides the case. Change is urgently needed.

A few points before getting to the current study.

For readers who are not familiar with judicial reviews (JRs) of refugee determinations, here is a brief overview of that process--though readers who would prefer a more fulsome account are encouraged to consult the earlier study, which discusses the process at length. (22) Refugee determinations are made by an independent quasi-judicial administrative tribunal, the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). Some, but not all, RPD determinations are subject to an appeal to the IRB's Refugee Appeal Division (RAD). Both the government and the claimant can apply to the Federal Court for leave to judicially review the final IRB decision by filing a notice of application. The applicant must then perfect the application--that is, file all the relevant supporting documents, including a memorandum of argument. The respondent then has the option of filing opposing materials, including their own memorandum of argument, or they can choose either to not oppose or to actively consent to the application. If the respondent opposes the application, the applicant can file a reply or can choose to let the time for filing a reply expire. At that point, the application goes to a judge who reviews the paper file and decides whether to grant leave (i.e., the leave stage). The test for obtaining leave is whether the applicant has made a reasonably arguable case. There are no written reasons for leave decisions, and it is not possible to appeal a leave decision--meaning that if leave is denied that is the end of the matter. If leave is granted, a hearing is scheduled. When the hearing is scheduled, the applicant and respondent are entitled to file additional materials. Sometimes, at this stage, the respondent will consent to the application, and there will be a motion for judgment on consent. More often, the matter will proceed to an in-person hearing, where a judge will make a determination on the merits (i.e., the judicial review or JR stage). In making a decision at the JR stage, the JR judge will also decide whether to certify the case for appeal to the Federal Court of Appeal, with the applicable test being whether the case raises a serious issue of general importance. If the case is not certified, then no further appeals are available. If the case is certified, the losing party can choose to proceed to an appeal at the Federal Court of Appeal (and ultimately the Supreme Court of Canada, with leave from that Court). Finally, throughout the process, at both the leave stage and the JR stage, the applicant may choose to discontinue their application.

While the judicial review process and the test for leave (i.e., reasonably arguable case) are the same as they were at the time of the original study, it should be emphasized that the underlying refugee determination process underwent substantial revisions. (23) The new system took effect for all claims made on or after December 15, 2012, while claims made before that date were processed under the old system (i.e., legacy claims).

There are many important changes...