'It's a crapshoot': Asylum seekers fret over fateful day at Canada's immigration board

"I think I'm going to lose this case."

In the basement of a Toronto church community centre, a gay asylum seeker from Uganda was feeling overwhelmed.

His refugee hearing was scheduled for the following week. He'd just been through a mock hearing run by Matthew House, a local refugee shelter, in preparation for his day before Canada's Immigration and Refugee Board (IRB).

"Tired," he said of his state of mind to Out in the Open after his mock hearing. "Not happy."

An asylum seeker can file a refugee claim upon arrival in Canada, but they don't become a refugee until they support that claim at a hearing. The IRB estimates the current wait time for a hearing to be 21 months.

Outcomes of individual claims can be hard to predict. In 2017, the overall acceptance rate was about 67 per cent.

"People's lives hang on decisions on refugee claims," Canadian Council of Refugees president Claire Roque told CBC News in a 2018 statement, following an independent review of Canada's refugee claim system.

"We are not talking about traffic violations, we are talking about a decision that may determine whether a person lives or dies. When we make such important decisions, we need to guarantee due process and the basic protections of an expert and independent tribunal."

Refugee hearings are a 'crapshoot,' says shelter director

A hearing before the IRB looks more like a job interview than a court proceeding. A single board member sits across from the claimant and their lawyer, if they have one, and asks questions. The member can then decide on the spot whether to accept or reject the claimant as a refugee in Canada.

Many board members are lawyers, but they don't have to be. Necessary qualifications include any post-secondary degree and some experience doing related work, such as conducting interviews or researching refugee issues.

"I think it's a crapshoot," Debbie Hill-Corrigan, director of the Sojourn House refugee shelter in Toronto, said of outcomes at refugee hearings. "I really do. I've worked in the refugee sector for 30 years — 20 at Sojourn House — but I have to say, it really depends who you get."

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The asylum seeker who participated in the mock hearing asked for his identity to be kept confidential, over fears for his family's safety back home. Homosexual activity is illegal in Uganda, and LGBT people there face harassment, discrimination and violence.

Why a gay man from Uganda would seek Canada's protection seems clear. But the sharp line of questioning at his mock hearing shook his confidence.

Martin Ginsherman played the part of the IRB member in the Ugandan man's mock hearing. He picked apart the man's "narrative" ー a document claimants must submit before their hearing that explains why they left home to seek asylum in Canada.

Ginsherman quizzed him on small details, evaluating whether the man could reiterate elements of the document on the spot.

"There have been situations where people, allegedly, buy narratives," Ginsherman said after the mock hearing. "If you've memorized something, it's very difficult to pick something out of context – you have to go through everything to get to that point where they've memorized an answer. If it's something you've lived, you can answer it spontaneously."

Some adjudicators go on 'gut,' says law professor

Audrey Macklin, a professor at the University of Toronto's Faculty of Law who specializes in immigration and refugee issues, served as a board member in the 1990s. She says determining whether a refugee claimant's story fits Canada's refugee criteria was the easy part. The harder task was discerning whether a claimant was telling the truth.

Although refugee claimants can present evidence to support their claim, Macklin found that board members were focused on a claimant's credibility, rather than hard evidence. Was their story consistent? Did it seem plausible? Did they present it convincingly?

"It was quickly apparent to me, as a decision-maker, that there may be a truth out there, but I'm unlikely to be able to uncover it in a two, three, four-hour hearing," she said. To believe she could do otherwise was "just naive."

Macklin also adds that some decision-makers were overconfident in their abilities to determine credibility.

They can deny or accept any claim for any reason.- Hilary Evans Cameron, former representative of refugee claimants

"I think the difficulty is that sometimes decision-makers aren't humble enough about what they do," she said, "and some people seem to think their gut is a uniquely valid arbiter of truth, and if their gut tells them that somebody's lying, well, they must be lying."

Hilary Evans Cameron spent a decade representing refugee claimants at the IRB. The University of Toronto professor says that precedents from refugee cases that have gone to federal courts are split on whether to resolve a decision-maker's uncertainty either in favour or against a claimant.

"What it means is that a board member who goes into a hearing has the full discretion to say, essentially, 'I don't know, so yes, I'll accept them,' or 'I don't know, so no, I'll reject them,'" she said of cases where a claimant's credibility is the issue. "They can deny or accept any claim for any reason."

Acceptance rates vary widely between board members

York University professor Sean Rehaag publishes annual statistics on refugee determinations, obtained through access-to-information requests. In 2017, the most recent year for which data is available, member acceptance rates ranged from 19.2 per cent to 97.9 per cent.

In a case study published that same year, Rehaag reviewed decisions of one former board member in particular, David McBean. McBean had rejected all 172 refugee claimants whose cases he heard in a three-year period, from 2008 to 2010.

"He was, in the large majority of cases, denying the claims based on credibility," Rehaag said, based on his own analysis of McBean's written decisions. "That is, he believed the refugee claimants were lying about their experiences."

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McBean no longer hears refugee cases, but now works as a Refugee Appeal Officer in the IRB's appeals division. Anna Pape, a spokesperson for the IRB, said McBean was not authorized to speak to media.

Pape said that variation between board members is to be expected, since every refugee case is unique. She also noted that Canadian courts have recognized the independence of decision-makers.

"The IRB strives to achieve consistency when making decisions," Pape wrote in an email. "However, absolute consistency in a quasi-judicial setting where each case is determined on its own merits and in accordance with the evidence presented is not possible."

Decision-makers 'all bring a different approach'

On the day of his refugee hearing, the Ugandan asylum seeker said he woke up feeling sick. But the real hearing was "totally different" from the mock one a week earlier, he said.

"Today's judge never mentioned anything they mentioned last week," he said after the hearing. "It was so different."

"That's always the way it is on refugee claims," said the man's lawyer, Jonathan Fedder. "The law is the same, but each member, decision-maker, is different, and they all bring a different approach to each hearing."

The board member accepted the man's claim, officially granting him refugee status in Canada. "I'm feeling so great and so happy," the claimant said of the decision.

"We have two very happy people here: the claimant and his happy and very relieved lawyer," said Fedder. "I've been doing this for a long time, but I tell you, waiting for that decision, it grinds on you."

With files from CBC News. This story was written in conjunction with the Out in the Open episode, "Asylum Seekers".