The Federal Court’s new chief
justice says its 33 members will
meet in mid-February to “
wrestle” with what to do about the
substantial variation among
judges in how often they grant
leave to appeal to refugee claimants who have been turned down
by the Immigration and Refugee
Board (IRB).
A recent statistical review of
23,047 refugee cases decided by
the Federal Court from 2005
through 2010 disclosed considerable divergence in how
often different judges granted
failed claimants leave to
appeal—ranging from less than
2 per cent to more than 60 per
cent in such cases.
“We hadn’t appreciated that
the degree of variation was that
high,” Chief Justice Paul Cramp-
ton said in an exclusive phone
interview with The Lawyers
Weekly. “It is troubling, and it’s
somewhat surprising, and we
are wrestling with what to do
about it.”
He said the court appreci-
ates that refugee claimants,
seeing such a wide variance
among judges, might question
whether all claimants are being
treated fairly. (To obtain judi-
cial review, failed refugee
claimants are required to con-
vince a judge that it is “fairly
arguable” that the IRB
unreasonably refused to recog-
nize them as refugees).
The competition law expert,
who was elevated to the top post
last December, said the judges
will discuss the legal standard
for granting leave to appeal, and
their individual approaches to
it, at the court’s roundtable in
mid-February.
“The hope is that coming out
of the meeting…— with the
benefit of different perspectives
on the meaning of the test and
how it’s applied, and how it has
been applied by others—that
the way that [the judges] apply
the test may be slightly different, and that we will see reduced
variation across the court, or
greater convergence, whatever
way you want to put it,” Chief
Justice Crampton explained.
The court is also mulling
whether lawyers newly appointed
to the court should wait a year
before hearing leave applications—after they have gained
some experience in refugee cases.
However, there will always be
some variation among judges in
every area of the law, he said.
“The issue is reducing the extent
of the variation,” he said.
“We can never have any pre-
conceived idea about what the
average [leave grant] rate across
all judges should be,” he empha-
sized. (The current average is
about 14 cent.)
The vice-president of the
Canadian Association of Refugee Lawyers, Mitchell Goldberg
of Montreal’s Blanshay Goldberg
Berger told The Lawyers Weekly
“the immigration Bar is very
concerned about the leave issue.”
“We are gratified that the
Federal Court is taking the issue
seriously,” he said. But “we are
concerned that inadequate judicial resources may impede their
ability to address the issue.” n
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