IRB member’s rejection rate not enough to be deemed biased

An oddly low rate of acceptance is not sufficient to establish reasonable “apprehension of bias” in a member of the Immigration and Refugee Board, Federal Court Justice Russel Zinn ruled in a recent case.

The case involves two Hungarian failed refugee claimants who allege the member of the IRB who dismissed their application chronically rejects cases. David McBean’s dismissal rate is “astronomically different from his colleagues and of the total average,” the plaintiffs had argued.

They backed their claim with a report from an Osgoode Hall Law School professor Sean Rehaag that shows that McBean granted only two of the 108 refugee claims he heard in 2011. For three consecutive years prior to 2011, his acceptance rate was zero when “the predicted recognition rate” was approximately 15 per cent for that period.

But simply presenting these numbers doesn’t satisfy the required burden of proof, the judge ruled, adding the stats could hint at bias but fail to come close to confirming it.

“Although the statistical data presented by the applicants may raise an eyebrow for some, the informed reasonable person, thinking the matter through, would demand to know much more,” Zinn said.

Those things include finding out if the Refugee Protection Board of the IRB assigns cases to members at random and if it does, what the statistical significance of the member’s rejection rate is, he added.

The Judge also said questions must be asked about the possibility of recurring mistakes that are similar to McBean’s disputed decision and what could have possibly led to the errors.

“Even if the data in the Rehaag Report is credible evidence, it is credible evidence only of the result of various refugee determinations made by various members of the RPD over a specific period of time,” Zinn said.

“It is not evidence of any of the variables that may impact the inference that the applicants seek to make.”

The applicants’ dismissed claim was based on fear of a violent ex-boyfriend who will retaliate for a life lived without him. McBean rejected the case, saying the applicant could simply find safety 200 kilometers away from her hometown.

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