By Lorne Waldman and Audrey Macklin
Members of the Immigration and Refugee Board make life and death decisions every day. Our justice system generally provides that when a government official makes such an important decision about you, you can request that a judge (who is independent of government) review that decision. The purpose of "judicial review" is to ensure that the government decision maker acted according to law. Decision makers are human and sometimes they make mistakes. They may misunderstand the law, misapply it, or treat people unfairly. Access to the courts is widely understood as a pillar of the rule of law. It provides a means of assuring accountability for the exercise of state power.
But if you are a refugee claimant who seeks to appeal a decision to refuse your case, you are not entitled to the same access to the courts as other people. Rejected refugees must first ask permission (called "leave") from a judge of the federal court. Only if the judge grants "leave," will the refugee claimant be able to argue his or her case before a court like any other person.
The jurisprudence of the court is clear and requires that leave be granted unless the application is clearly frivolous. Yet, on average, federal court judges deny 85 per cent of all leave applications made in immigration matters. Of the 15 per cent of refugee decisions that are granted leave, the federal court concludes that about half were made contrary to law. This statistic alone should give pause. Fifty per cent is a very high rate of success on judicial review and suggests that the standard being applied by the court on leaves is higher than "not clearly frivolous."
But that’s not the full story, because there is dramatic inconsistency in leave grant rates between judges, as reported by the Citizen’s Don Butler over the last few days. We have a system where one judge grants leave in 60 per cent of cases, and another grants leave in less than 1.5 per cent of cases. The application for leave is made in writing, and no reasons are given for the leave decision. As a result, it is impossible to figure out why one judge is many times more likely than another judge to think that an application for leave presents an "arguable case." Moreover, as the statistics were gathered over five years, they accurately reflect most judges’ patterns. One might think that judges with the lowest rate of allowing cases to proceed would be better able to judge the eventual success of cases that he or she did deem worthy. Not so: judges who almost never grant leave are no better than other judges at discerning which judicial reviews will ultimately succeed.
All of this adds up to the appearance of arbitrariness. The leave requirement for non-citizens exists because of anxiety that the federal court would be overwhelmed by the immigration caseload if they could not restrict access to judicial review. But public confidence in the courts depends in part on our faith that judges make principled and reasoned decisions. The adage that justice not only be done, but seen to be done, underscores the importance of transparency in maintaining that confidence. The leave process is the opposite of transparent: apart from the requirement that the refugee claimant present an "arguable case," there are no criteria, no process, and judges never issue reasons for refusing leave. No one except the judges knows what makes a case worthy of being heard, and the enormous statistical variation among judges suggests that they don’t agree among themselves anyway.
Arbitrariness - even the appearance of arbitrariness - is antithetical to fairness. Access to justice for refugee claimants should not look like a lottery. It does a disservice to refugee claimants and, to the extent that it undermines confidence in the judiciary, does a disservice to the judiciary, too.
A variety of options exists that might reduce the troubling inconsistency. The court could develop guidelines that enumerate criteria for evaluating whether an application for leave discloses an "arguable case." The court could institute a system whereby rejection of leave applications requires the separate agreement of two judges, instead of only one. The government could expand the number of judges of the federal court and get rid of the leave requirement altogether. There are other possibilities that one could devise.
There is a limit to how far a court can go in promoting consistency before it bumps up against the inviolable principle of judicial independence. But in the face of such troubling inconsistency in the decisions that determine access to the courts, doing nothing is not a viable option.
Lorne Waldman is an immigration lawyer and president of the Canadian Association of Refugee Lawyers (CARL). Audrey Macklin is a professor at the University of Toronto and is on the executive of CARL.