A Refugee from Justice? Disparate Treatment in the Federal Court of Canada

Abstract

This article paints a troubling picture of disparate treatment in the Federal Court of Canada. Examining more than 600 immigration and refugee claims, the results link judicial action to litigants' representation, their demographics and national region, and the background and ideology of the judges involved. When compared with prior research in Canada and similar studies from the United States, the findings suggest that an applicant in search of a just result would do as well to hire an experienced lawyer and hope for a sympathetic judge as to prepare an excellent appeal. Canada's immigration process requires greater attention so that the reality of its operation matches the promise of the nation's intentions.

Explaining the Divergence in Asylum Grant Rates among Immigration Judges: An Attitudinal and Cognitive Approach

“…By creating a measure that is specific to one area of law—here asylum decision making—we lessen the potential for multidimensionality in preferences to obscure our findings. Indeed, previous studies of asylum decision making in Canada have utilized both background characteristics and measures of ideology as determined by experts in asylum and immigration law in attempting to discern judges' policy predispositions (Gould, Sheppard, and Wheeldon ). Other early studies have also turned to the judges' background characteristics, arguing that they ‘reflect similar socialization processes and life experiences, which in turn produce similar attitudes and ultimately behavior (votes)’ (Gryski, Main, and Dixon , 528).…”

South Africa as dystopia: diaspora views from Canada

“…Liberal critics are more likely to see the outcome as a function of inconsistent and idiosyncratic decision-making within the RDP. In their view, the outcome of someone's claim or appeal is far too dependent on the luck of the draw given considerable 'grant rate disparities' between adjudicators (Gould et al, 2010;Rehaag, 2007Rehaag, -8, 2012). 8 Ironically, the post-apartheid South African refugee determination system has precisely the opposite problem.…”

“…He will now appear before the RDP again where his lawyers will reportedly now argue that he will come to harm if returned to SA, 'because of fear of being attacked by black South Africans, and because he is now a well-known white South African' (Barbeau, 2012). Should his application be rejected, he will be able to institute a second round of appeals in the courts (Gould, Sheppard, & Wheeldon, 2010). Four years after first lodging what most legal commentators would see as a 'manifestly unfounded' claim and nine years after he first came to Canada on a temporary work permit, Huntley remains in the country.…”

International Law and Administrative Insulation: A Comparison of Refugee Status Determination Regimes in the United States, Canada, and Australia

“…This lack of transparency makes it impossible to assess whether applications are rejected because they are not seen as having merit, or whether, as the statistics would imply, the Federal Court has adopted an unofficial policy of only hearing a specific ratio of the cases available, which hovers steadily around 15 percent 47 . A recent study found that applicants who are represented by big law firms are more likely to be granted leave (Gould, Sheppard, and Wheeldon 2010), though these firms are also less likely to take on weak claims. The claimants who are granted leave go on to a full court hearing, but the prospect of reversal is extremely slim.…”