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RAD Decision re: Bias (4 Apr 2022)

On April 4, 2022, the Refugee Appeal Division of the Immigration and Refugee Board (Member Erin Bobkin) issued a decision overturning a Refugee Protection Division (RPD) decision on the basis that the RPD Member demonstrated a reasonable apprehension of bias towards Roma refugee claimants. As Member Bobkin wrote (at para 34):

“I find that a reasonable person would conclude that this Board Member has a predisposition against Roma claimants from Romania. I find that the test for a reasonable apprehension of bias is met. The five decisions reviewed in this appeal reveal that the Member has inappropriately used boilerplate reasons and has repeatedly engaged in a pattern of credibility findings based on inappropriate considerations. Looking at these patterns along with the confrontational and sarcastic tone used in this RPD hearing, I find the test for bias is made out.”

Read the decision here.

Read a media story about the case here.

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Student Backend Developer

The Refugee Law Lab, hosted at York University’s Centre for Refugee Studies and Osgoode Hall Law School, is looking for a Part-Time Student Backend Developer.

The Backend Developer will join a team that currently includes a law professor, a research lawyer, a data scientist, a software engineer, and a front-end developer who are building a legal analytics app to help lawyers draw on insights from data about Canada’s refugee determination system to advance the interests of refugee claimants.

The app involves scraping data about refugee law processes from various online sources, parsing the data, applying natural language processing, and transforming the data into information that will be of use to refugee lawyers, presenting the information to refugee lawyers, and providing a secure venue for lawyers to exchange tips that relate to the information. The app will be made available free of charge to refugee lawyers and more broadly to members of the public. Wherever possible, data obtained through the project will be shared so that it can be used by other researchers.

We are seeking a backend developer who can help us develop and document a REST API to interface with databases such as PostgreSQL and MongoDB.

Core Requirements:

  • Degree in progress in computer science, engineering, or related fields at any Canadian university
  • Programming skills in Python, JavaScript, Node
  • Experience with documenting REST API endpoints
  • Experience with Git
  • Current legal authorization to work in Canada

Assets, but not required:

  • Experience with FastAPI and/or SQLAlchemy
  • Interest in leveraging technology to advance the interests of displaced people and other marginalized groups
  • Interest in contributing to open-source technologies

Pay, hours & location:

  • $40/hr (inclusive of 4% vacation pay)
  • This is a part time position with flexible work hours. We anticipate a total level of effort at around 120 hours, with approximately 10 hours per week for the first 8 weeks of the contract, followed by 5 hours per month as we move into the launch face of the project.
  • Start date: as soon as possible.
  • End date: 31 December 2022
  • Work is remote
  • Additional work may become available, as the Refugee Law Lab is growing quickly.

Application Process: Apply online with a CV and a brief cover note describing your interest in the position by Feb 7 at 5:00pm EST.

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Press Release

FOR IMMEDIATE RELEASE

November 23, 2021

LAW PROFS & CONSUMER ADVOCATES TO INVESTIGATE RACIAL PROFILING OF AIR PASSENGERS

Announcement: New funding received by York University’s Refugee Law Lab to work with Air Passenger Rights and University of New Brunswick law professor to investigate racial profiling by Canadian government at airports abroad

Toronto, ON, (November 23, 2021) – York University’s Refugee Law Laboratory is delighted to announce that it has received funding from the Social Sciences and Humanities Research Council of Canada (SSHRC) to work with Air Passenger Rights, Canada’s independent nonprofit consumer advocacy group for air travellers, and University of New Brunswick law professor Benjamin Perryman, to undertake a joint research project about the Canadian government’s use of racial profiling to prevent some people from travelling to Canada.

In 2016, the Canadian government made it mandatory for Canada-bound air travellers to get pre-authorization for their travel. Before boarding a plane, non-Canadian citizens must apply for and receive an Electronic Travel Authorization (eTA). An eTA is a mini-visa granted by a largely automated system. Each applicant is digitally cross-referenced against lists of “threats” to Canada’s security and the integrity of its immigration system. If a person is on a list, they are not issued an eTA and not allowed to board a plane. The eTA is part of a Beyond the Border strategy that extends the effective border beyond Canada’s territorial limits. One of the purposes of this strategy is to prevent the arrival in Canada of refugee claimants.

Air Passenger Rights, in the context of ongoing litigation, has discovered that the Canadian government appears to be racially profiling travellers and cancelling their eTAs to deboard perceived refugees from planes. Using targeting methodologies, private airline security forces and overseas enforcement officers search out indicators that a person will make a refugee claim once they arrive. One particularly problematic indicator is whether passengers are associated with refugees — implying that the Canadian government views passengers who associate with refugees as unwelcome. If there are enough indicators, the otherwise legitimate eTA is revoked and the door to Canada is closed. APR has painstakingly obtained documentary evidence showing that Hungarian Roma passengers are disproportionately screened and deboarded. This appears to be part of a longer-term trend of racial discrimination towards Hungarian Roma passengers that precedes the establishment of the eTA. 

“There is a long history in Canada and in Europe of racial discrimination against members of Roma communities,” said Professor Sean Rehaag, Director of York University’s Refugee Law Laboratory. “This research project is necessary because the Canadian government continues to strenuously fight the release of information about the eTA program and how that program is applied to Roma passengers”, he added.

This project, which received $19,854 from the Social Sciences and Humanities Research Council of Canada Partnership Engage Grant competition, will support research into this practice and explore whether Canada’s actions contravene domestic and international law.

# # #

ABOUT AIR PASSENGER RIGHTS

Air Passenger Rights is an independent, nonprofit organization of volunteers working to make the travelling public aware of its rights and capable of enforcing them. The organization’s mission is to turn helpless passengers into empowered travelers through education, advocacy, investigation, and litigation.

ABOUT THE REFUGEE LAW LABORATORY

The Refugee Law Laboratory, based at York University’s Centre for Refugee Studies and Osgoode Hall Law School, undertakes research and advocacy related to new legal technologies and their impact on refugees, other displaced communities, and people on the move.

FOR FURTHER INFORMATION:

Sean Rehaag
Director & Associate Professor
Refugee Law Laboratory & Osgoode Hall Law School
York University
srehaag@osgoode.yorku.ca 

Gabor Lukacs
President
Air Passenger Rights
lukacs@airpassengerrights.ca

Benjamin Perryman
Assistant Professor
Faculty of Law
University of New Brunswick
benjamin.perryman@unb.ca 

Simon Wallace
Research Lawyer & PHD Candidate
Refugee Law Laboratory & Osgoode Hall Law School
York University
simonwallace@osgoode.yorku.ca

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Sharp Borders: Technology, Pushbacks, and Interdisciplinary Investigation

November 15, 2021 (12:30 PM – 2:00 PM ET) (by zoom)

Details to come soon.

Register in advance for this joint RLL & CRS seminar. After registering, you will receive a confirmation email containing information about joining the meeting.

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Summer Osgoode JD RA

The Refugee Law Laboratory (RLL) is looking to hire a summer Osgoode JD research assistant with an interest in refugee law. The successful candidate will assist the Lab with several ongoing projects, including law journal articles about Canada’s refugee determination system and about artificial intelligence and other new technologies in the migration law context. This position is only open to Osgoode Hall Law School students.

Supervisors: Sean Rehaag (RLL Director) & Petra Molnar (RLL Associate Director)

Time: approximately 35 hours per week for 15 weeks, May 2 to Aug 12 (dates flexible)

Location: If Covid restrictions allow in person research, then work will be hybrid in-person and remote (York University campus 3-5 days per week, Remote 0-2 days per week). If Covid restrictions do not allow in person research, then work will be remote.

Pay: $25/hr (inclusive of vacation pay)

Eligibility: Must be a current 1L/2L JD student at Osgoode Hall Law School

Expected tasks:

• Preparing legal research memoranda

• Copy-editing manuscripts, grant applications, and online materials

• Assisting with online events

• Other tasks as required

Mandatory qualities sought:

• Strong legal research and writing skills

• Attention to detail

• Interest in immigration/refugee law

Qualities that are assets but are not required:

• Ability to read in French

• Background in data science, statistics, computer science, or related disciplines

• Lived experience with migration or membership in other equity-seeking groups

Application Deadline: Feb 1 at 5:00 pm EST

Application Process: Apply online with a CV, unofficial transcripts, and a cover note describing your interest in the position.

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2020 Data

2020 Refugee Claim Data and IRB Member Recognition Rates

The following note and the accompanying data are provided by Sean Rehaag, Director of the Refugee Law Laboratory, Director of the Centre for Refugee Studies, and Associate Professor at Osgoode Hall Law School, York University.

5 August 2021

Data obtained from the Immigration and Refugee Board (IRB) through Access to Information Requests and a data sharing agreement reveals vast disparities in refugee claim recognition rates across decision-makers in 2020. This is consistent with similar findings from prior years for Canada’s previous and new refugee determination systems.

In 2020, some Refugee Protection Division (RPD) decision-makers who decided over 30 cases granted refugee status in most of the cases they heard, including L. Houle (100.0%), J. Morin (100.0%) and F. Ramsay (100.0%). Others who decided over 30 cases granted refugee protection much less frequently, including G. Brien (1.8%), M. Rodrigue (11.1%) and P. Ariemma (12.5%).

The tables also show substantial variance for some decision-makers between the recognition rates that would be predicted based solely on the average recognition rates for the countries of origins in the cases they decided, and their actual recognition rates. For instance, R. Khalifa (predicted 48.5%; actual 79.5%), G. Pagidas (predicted 48.0%; actual 76.3%) and J-G. Jam (predicted 63.9%; actual 91.5%) had much higher recognition rates than predicted, whereas K. Gibson (predicted 71.1%, actual 15.1%), L. Stewart Ferreira (predicted 70.3%; actual 17.8%) and G. Brien (predicted 47.0%; actual: 1.8%) had much lower recognition rates than predicted. All decided at least 30 cases.

Some of the recognition rate variation observed in the data is due to specialization in particular types of cases. For example, some decision-makers specialize in geographic regions with especially high or low refugee claim recognition rates. It should also be kept in mind that to enhance efficiency the RPD has recently placed increased emphasis on streaming cases into different categories, including expedited cases that are granted based on paper reviews rather than hearings. The proportion of such claims heard by particular decision-makers may affect their recognition rates. For further possible explanations for variations in recognition rates, please see an explanatory note (also available in French) that was provided by the IRB.

The data for 2020 also includes information about outcomes on appeals at the IRB’s Refugee Appeal Division (RAD). Like the variations seen in RPD decision-making, RAD decision-makers have very different rates at which they grant appeals. For example, in RAD cases decided on the merits, claimants were much more likely to succeed in their appeals before J. Pollock (77.8%), J. Bousfield (75.9%) or C. Maxwell (69.1%) than before J. Sadek (3.8%), M. Lamani (5.5%) or M. Jobin (5.6%). All decided at least 30 cases.

A few implications of this year’s data are worth highlighting:

  • The persistence of variations in recognition rates across adjudicators, combined with the devastating potential impact of false negative refugee decisions (i.e. refugees being returned to face persecution), make robust oversight mechanisms essential. Unfortunately, many refugee claimants continue to be denied access to the appeal at the IRB and are ineligible for automatic stays on removal pending judicial review at the Federal Court. This includes large numbers of claimants who transited to Canada via the United States under an exception to the Safe Third Country Agreement – even though one’s route to Canada has little to do with whether one has a well-founded fear of persecution. For further analysis, see: https://ssrn.com/abstract=2647638
  • The overall success rates in RAD appeals are remarkably high. Indeed, appeals brought by claimants and decided on the merits in 2020 were granted in around a third of cases (32.3%). The fact that the RAD is correcting large numbers of claims that were wrongly denied at the RPD emphasizes the importance of this form of oversight. And it is yet another reason why all claimants – including those who have transited to Canada via the United States – must be entitled to a full appeal on the merits. For further analysis, see: https://ssrn.com/abstract=2647638

For a discussion of the methodology used to obtain the data and to calculate the statistics, as well as an analysis of the implications of similar data for a previous year, see https://ssrn.com/abstract=1468717

Note that, unlike past years, the IRB initially declined to provide the data requested in our annual Access to Information Request, pointing to the new Treasury Board Privacy Implementation Notice and the need to protect the privacy of refugee claimants. The IRB did, however, agree to enter into a data sharing agreement to facilitate this research. While we are grateful to the IRB for engaging with researchers in this way – and while we share the view that it is important to protect the privacy interests of refugee claimants – the agreement limits how much data we are able to publicly share. Thus, for example, we are not posting the raw data we obtained. We are also only posting statistics relating to outcomes in cases decided on the merits by Board Members (leaving hundreds of claims decided on other grounds out of the reported figures). We are also only posting recognition rates, rather than counts of cases and breakdowns of outcomes. If you are interested in general statistics on refugee claim outcomes, including breakdowns for all claims from particular countries, we encourage you to consult the statistics webpages of the IRB and the United Nations High Commissioner for Refugees.


Tables for RPD Cases:

1.1. Outcomes by Board Member (Alphabetical)

1.1a. Outcomes by Board Member (Organized by Recognition Rate, 30+ Decisions)

1.1b. Outcomes by Board Member (Organized by RR Nominal Variance, 30+ Decisions)

1.2. Outcomes by Board Member (Excluding Paper Review & Expedited Positive Decisions) (Alphabetical)

1.2a. Outcomes by Board Member (Excluding Paper Review & Expedited Positive Decisions) (Alphabetical) (Organized by Recognition Rate, 30+ Decisions)

1.2b. Outcomes by Board Member (Excluding Paper Review & Expedited Positive Decisions) (Alphabetical) (Organized by RR Nominal Variance, 30+ Decisions)

1.3. Outcomes by Country and Board Member

1.4. Outcomes by Board Member and Country


Tables for RAD Cases:

2.1. RAD Outcomes by Board Member (Alphabetical)

2.1a RAD Outcomes by Board Member (Organized by Allowal Rate, 30+ Decisions)


To be cited as: Sean Rehaag, “2020 Refugee Claim Data and IRB Member Recognition Rates” (5 August 2021), online: https://refugeelab.ca/refugee-claim-data-2020.

NOTES:

  • The data was obtained through Access to Information Request A-2020-01130 and a data sharing agreement with the IRB dated 2 June 2021.
  • Tables 1.1, 1.1a, 1.1b, 1.3 and 1.4 include only cases resulting in positive (including expedited positive and paper review positive) or negative (including no credible basis) decisions, excluding cases that were abandoned, withdrawn or otherwise decided. Tables 1.2, 1.2a and 1.2b, include only cases resulting in positive (excluding expedited positive and paper review positive) or negative (including no credible basis) decisions, or where applications were withdrawn or declared abandoned, excluding cases that were abandoned, withdrawn or otherwise decided.
  • All statistics (including recognition rates) include only principal applicant claims (i.e. excluding associated claims by family members of principal applicants).
  • A small number of cases were decided by panels of Board Members. Only the first listed Board Member is included in the statistics.
  • Country of origin averages and predicted recognition rates are calculated separately for tables that include (i.e. Tables 1.1, 1.1a, 1.1b, 1.3 and 1.4) and exclude (i.e.  Tables 1.2, 1.2a and 1.2b) expedited positive and paper review positive decisions.
  • The data refers to “recognition rates”. The term “recognition rate” is used to mean the proportion, expressed as a percentage, of positive (including expedited positive) decisions relative to the total number of positive (including expedited positive and paper review positive where applicable) and negative (including no credible basis) decisions, excluding cases that are abandoned, withdrawn or otherwise resolved. This is the standard practice for reporting outcomes by the United Nations High Commissioner for Refugees (https://www.unhcr.org/statistics), and it is the way that both “recognition rates” and “grant rates” were reported for data obtained for prior years (see links below).
  • Tables 2.1 and 2.1a only include principal applicant RAD appeals brought by claimants (i.e. excluding appeals brought by the minister) that are decided on the merits (i.e. excluding appeals that are abandoned, withdrawn, not perfected, denied on jurisdictional grounds, or otherwise resolved).
  • This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License (CC BY-NC-SA 4.0)

Sean Rehaag

Director, Refugee Law Laboratory
Director, Centre for Refugee Studies
Associate Professor, Osgoode Hall Law School
York University


Data from previous years (via Refugee Law Lab):

2019

Data from previous years (via Canadian Council for Refugees):

2018
2017
2016
2015
2014
2013
2012
2011 (Updated)
2011 (Original)
2010
2009
2008
2007
2006

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