Published On Tue Sep 21 2010, Nicholas Keung Immigration Reporter, Toronto Star

A study of more than 600 Canadian court rulings on immigration and refugee appeals has found favourable outcomes aren’t always based on legal merit. It often depends on access to a good lawyer and the political leanings of the judge, says a paper by a joint Canadian and American research team. The rulings relate to would-be immigrants and refugees who appealed to the Federal Court of Canada after their claims were denied by immigration officials and refugee adjudicators. The findings are significant since immigration appeals can make up 85 per cent of the federal court’s caseload. And once denied by the court, a case is dismissed.

Though disappointing, Toronto immigration lawyer Joel Sandaluk said the results are not surprising. “Far from revealing a hidden truth about the court, it really confirms what lawyers appearing before the court have known anecdotally for some time.”

The researchers pored over 617 random immigration and refugee-related cases filed with the federal court in 2003 – 275 of which permission for a judicial review was denied and 342 in which it was granted.

Researchers coded and analyzed the cases’ outcomes and independent variables such as each claimant’s access to sound legal representation, as well as their age, gender, country of origin, and the career background and ideology of the judges involved.

They looked at a judge’s decision tendency and prior career, primary language, experience on the bench, gender and political leanings, the latter based on a five-point scale assessment by five Canadian experts who specialize in immigration law and are familiar with the federal judges.

The experts evaluated 36 judges, assessing 9 per cent as being very liberal, 33 per cent as liberal, 33 per cent as moderate, 12 per cent as conservative, and 13 per cent as very conservative.

The results “underscore concerns about the FCC’s treatment of immigration and asylum cases,” the 32-page paper states.

The paper is published in the current online issue of Law & Policy, an international legal journal.

A similar study of U.S. immigration courts in 2007 yielded similar findings, concluding the outcome of cases were influenced by such things as the location of the court and the sex and professional background of judges.

“On paper, the Canadian system looks as good as any other system, but the fact is ideological variables still have a strong influence in decision-making (here),” said George Mason University law professor Jon B. Gould, who co-wrote the paper with researchers Colleen Sheppard, a research associate at the United States Sentencing Commission, and Johannes Wheeldon, of Washington State University.

In a 2009 study, Osgoode Hall law professor Sean Rehaag found Immigration and Refugee Board adjudicators varied drastically in their refugee acceptance rates, ranging from 2 to 96 per cent, but that paper didn’t examine the relationship between the adjudicators’ political ideology and their decision-making.

Lawyer Sandaluk hopes this latest study will shed light on the need for transparency in the judicial appointment system.

“The more insulated a court is from review, and the Federal Court is heavily insulated, the more important the transparency of the judicial appointment process becomes.”