Thank you.
I'm a law professor. I teach at Osgoode Hall Law School at York University. My area of specialization is refugee law. I focus on empirical studies of refugee law, trying to understand what explains outcomes in the refugee determination process.
I've been working with data about refugee decision-making that I've obtained from the Immigration and Refugee Board through access to information requests. I've made that information publicly available over the last 10 years. I've undertaken a statistical analysis on that data and have published articles about factors that explain outcomes in refugee adjudication, including extra-legal factors such as who the lawyer is, what the claimant demographics are, and who the decision-maker is.
Today I'm going to focus on refugee adjudication because of the stakes that are involved in these types of decisions, but one can make similar kinds of arguments about other areas of immigration decision-making. Just as a reminder, as you all know, if we get refugee decisions wrong, people can be sent back to countries where they face persecution, torture, or even death, so the stakes are incredibly weighty.
The basic problem I want to talk to you about is inconsistent decision-making at the refugee protection division, and I want to give you an extreme example.
There was a decision-maker, David McBean, who from 2008 to 2010 decided 174 cases at the refugee protection division. He denied every single claim that he heard during this period, even though the average recognition rate at the Immigration and Refugee Board during the period was 50%. I did an access to information request to get all of his reasons for his decisions and I had a law student go through those and code various data points. It turned out that the decision-maker denied most of the claims on the basis of credibility—that is, he just didn't believe the claimants. In fact, in only one out of the 174 cases did the decision-maker explicitly say that he believed the claimant, and in that case he was actually sitting on a panel with two other decision-makers. He regularly used the phrase “I simply do not believe that any of the significant alleged events actually happened”, and therefore the claim failed.
The question I wanted to talk to you about today is this: what do we do if there's a refugee adjudicator at the RPD who simply does not believe refugee claimants? This is an extreme example, and it's a few years old now, but the problem of inconsistent decision-making continues. Based on data I obtained for 2017, just to give you an example, there's one decision-maker, Wittenberg, who granted claims 19% of the time, and another decision-maker, Bousfield, who granted claims 97% of the time. That's 20% on the one hand and 97% on the other hand. Those are huge variations. There are a variety of reasons that might explain this—country of origin and other factors—but when I do the analysis on the data, even when I account for those factors, massive variations persist.
One can make the same point about the refugee appeal division. Again, according to the data that I obtained for 2017, one decision-maker, Bebbington, granted appeals of refugee decisions 8.2% of the time; another decision-maker, Côté, granted appeals 61% of the time. That 8% versus 61% is, again, a huge variation. I could run through similar statistics at the Federal Court level.
We see here that there is a problem. The problem is subjectivity in decision-making in refugee adjudication. Essentially, outcomes and claims hinge in part on the luck of the draw.
What do we do? Well, I want to say three things that we shouldn't do. One is we should not remove decision-making from the RPD and move that to another location internal to the department, for example. Subjectivity can't be fixed that way. My data shows that across institutional contexts, subjectivity persists. I think it's really important that inconsistent decision-making not be used as a reason for moving decision-making from the IRB to other bodies.
Second, I don't think it's time to revise the complaints system right now. I'm not sure the complaints system can actually deal with the subjectivity. More importantly, the complaints system is actually quite new. It was brought into place in December. I think we need to give that system a bit of time to run its course before we make further changes.
The third thing we should avoid doing is replacing political appointees, specifically at the refugee appeal division, with political appointees of another stripe. When a government comes in that is focused on getting tough on border security, you get one type of appointee, who doesn't believe claimants; then another government comes in that is more generous towards refugees, and you get a different type of political appointee. What we need to do is depoliticize the process.
That's what we shouldn't do. What should we do? First, depoliticize the process. Make appointments merit-based, not based on political patronage. My studies have shown that decision-making improved at the RPD when we got rid of the Governor in Council appointees. That's not because civil servants are better than Governor in Council appointees; it's because the politics was largely taken out of the RPD appointment process.
The second thing that I think we ought to do, and I'm going to end with this, is provide more guidelines and better training for decision-makers. Specifically, we should provide better training on the issue of credibility. Credibility adjudication in refugee decision-making is incredibly difficult. Credibility assessments are unreliable. People overestimate their ability to reliably detect whether people are telling the truth. What we really need to do is encourage decision-makers to approach credibility assessments with some level of caution. The question should not be, “Do I believe the claimant?” The question should be, “Could any of my colleagues reasonably believe the claimant?” If yes, the claimant should be believed.
My recommendation is guidelines and training to discourage decision-makers from making negative credibility assessments and to encourage them to give claimants the benefit of the doubt.
Thank you very much.