A former refugee judge who once wrote that most refugees are liars was recently rehired by Canada’s Immigration and Refugee Board (IRB) to decide asylum claims, Global News has learned.
Lubomyr Luciuk — who once said he “had no choice but to become ‘Dr. No’” because he denied so many refugee claims — gained notoriety for his views on Canada’s asylum system, including when he said Canada had become a haven for “assorted terrorists, drug peddlers and war criminals.”
“If the IRB continues to operate as it has, then just about anyone and everyone who wants to get into Canada will,” Luciuk said in a 2001 opinion piece published in at least four major Canadian newspapers and an online blog.
“Then our country will disappear, as surely as New York’s World Trade Center vanished in a holocaust perpetrated by the terrorists who exploited our lax immigration laws to worm their way amongst us,” he said.
But for two weeks at the end of December, Luciuk was back at the IRB, deciding the fate of those seeking protection in Canada.
Luciuk, who claimed he denied more than 90 per cent of all cases he heard while at the IRB between 1996 and 1998, also wrote that he “rarely encountered a real refugee” while working at the board.
He also criticized the IRB for the way it handled certain types of claims — such as those from young Tamil men from Sri Lanka who he said received “only the most perfunctory of examinations.”
“Be a liar. That is the first lesson most claimants who come before the Immigration and Refugee Board learn,” Luciuk wrote. “Unless you are an utter imbecile, you stand an excellent chance of getting Convention refugee status.”
Legal experts say Luciuk’s rehiring is problematic and raises concerns about the competence of judges being brought back to decide legacy asylum claims. They also question whether the IRB — eager to clear a large backlog of cases — is “taking a shortcut” in its hiring process.
In a written statement sent to Global News, Luciuk said he wrote the 2001 article to discuss “flaws in the system, as it existed then.” He also said expressing critical views of Canada’s asylum system was “for the benefit” of Canadian society.
“Views change as processes and laws evolve,” Luciuk told Global News. “The IRB is not static, nor are my opinions.”
Luciuk’s hiring prompts internal review
Luciuk was hired as part of the board’s Legacy Task Force, a special group of retired refugee judges rehired to deal with a backlog of roughly 5,500 cases dating back to at least December 2012.
IRB spokesperson Anna Pape said in an email statement that Luciuk was rehired following a review of his past performance at the board and after several members of the task force recommended him to their supervisor.
But since being questioned by Global News about Luciuk’s 2001 opinion piece, the IRB said it launched an internal review of its hiring process, saying it may not be adequate.
“A further review of the Legacy hiring protocol was warranted,” Pape said. “We are now looking at broadening the reference check process internally as well as externally via searches of available public source information.”
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While the board says Luciuk performed his duties “competently” during his short, two-week stint last December, it also said the contents of the article he wrote were inappropriate, adding that Luciuk has not been offered another contract.
According to Pape, the IRB was unaware of the 2001 article prior to rehiring Luciuk. Pape also said Gaétan Cousineau — the man who recommended Luciuk be rehired — was unaware of the article before making his recommendation.
This is despite the fact Cousineau was the Deputy Chairperson of the Convention Refugee Determination Division at the IRB in 2001 when Luciuk authored the article.
Global News attempted to contact Cousineau directly, but received no response.
“The article was written many years ago and references a refugee determination system that has undergone significant change,” Pape said. “In any event, the IRB does not support the content or tone of that article.”
Pape says Luciuk heard three “expedited” cases while back at the IRB. He approved one claim and forwarded the other two claims to a full hearing before another judge.
According to Boulakia, even though Luciuk didn’t deny any cases, those he referred to full hearings should be revisited by another judge.
Boulakia also wonders how the IRB missed the article he wrote.
“Even just doing something as simple as a Google search, seeing what someone has publicly stated about the refugee system, doesn’t seem to be done,” he said.
Luciuk responds to criticism
In a written statement to Global News, Luciuk said his 2001 article was critical of procedures in Canada’s immigration system unique to the time it was written.
“It was written in a particular context, very different from present-day circumstances,” Luciuk said.
“I was an academic when I wrote it and still am,” he said. “It is important to note my expression of frustration with some of what I witnessed at the board.”
Luciuk also said many of the rules and procedures he had issues with while at the IRB have changed since 2001, adding it is “not the same board I experienced two decades ago.”
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Luciuk’s statement did not, however, address parts of the article in which he said “most” refugees are liars. It also did not address his criticism of the Supreme Court of Canada’s 1985 decision granting refugees equal rights under Canada’s Charter of Rights and Freedoms, which he said made Canada a haven for “assorted terrorists, drug peddlers and war criminals.”
“In 2018, I was invited to apply to the board and welcomed the opportunity,” he said. “All appropriate protocols were followed, and after being vetted, I was offered a contract position.”
Luciuk also forwarded Global News a 2015 article published in the National Post in which he appears to advocate for a return to a 1940s-style asylum system, like the one he says his parents experienced while fleeing Nazi and communist tyranny.
In the article, Luciuk describes a system where “chosen” refugees were carefully directed to specific communities in Canada and were then “obliged” to remain there for two years while working to “pay back the cost” of their passage.
“They knew they had been protected from harm and were being given a second chance to rebuild their lives,” Luciuk wrote. “That is all real refugees want.”
Changes to the IRB
There have been significant changes to the IRB since Luciuk was first appointed in the late 1990s.
Asylum claims are now heard by one refugee judge, not two. This means decisions are now based on a single judgment, whereas in the old system, if one judge gave a negative decision and the other a positive, the positive decision would overrule the negative — something Luciuk complained about in his 2001 article.
There have also been “enhancements” to the security screening process asylum seekers must go through, according to the IRB. The use of biometric data, including fingerprints and photographs, to confirm claimants’ identities has become common.
A new Refugee Appeals Division (RAD) was also created. Legacy claimants, however, are prohibited from accessing the RAD because their claims were made before this branch was set up.
But according to Boulakia, who has appeared before the board for more than two decades, none of these changes excuse Luciuk’s “injudicious” opinion piece.
“The statements that he made were attacks on Tamil refugees, xenophobic statements promoting a paranoia that refugees coming into the country were going to carry out mass slaughter, comparing it to the holocaust,“ Boulakia said.
“Saying that the board has fundamentally changed doesn’t really answer things,” he said.
According to statistics provided by the IRB, the acceptance rate for asylum seekers in 1997 and 1998 — the two years that roughly coincide with the time Luciuk was first at the board — averaged 42 per cent. In total, refugee judges at the IRB rejected more than 19,000 claims during this two-year period.
And between 1993 and 2012 — the year major changes were made to Canada’s asylum system — the acceptance rate averaged 44.4 per cent, with a low of 35 per cent in 2012.
This also doesn’t mean everyone rejected was lying. According to both past and present immigration rules, asylum claims can be denied for several reasons, including the availability of “state protection” in the claimant’s home country and refugees being unable to prove their identity. Claimants can also withdraw or abandon their claims, altering the annual acceptance rate.
The rate of acceptance in 2017, the last year from which stats are fully available, was 63 per cent, according to the IRB.
Meanwhile, the Canada Border Service Agency told Global News it has deported more than 31,500 failed refugees since April 2013.
Refugees must be presumed to be telling the truth
Hilary Evans Cameron, a former immigration lawyer and law professor, said just as anyone accused of committing a crime must legally be presumed innocent until proven guilty, refugees must be presumed to be telling the truth until proven otherwise.
“One of the most famous ideas in our common law system is this idea that it is better that 10 guilty persons go free than one innocent one be convicted,” Cameron said.
“We have the same thing in refugee law. Claimants are supposed to be presumed to be telling the truth at the beginning of the process,” she said. “If there’s a reason to disbelieve them, the members at that point are free to conclude that they’re not telling the truth.”
Cameron teaches excerpts of Luciuk’s 2001 opinion piece to a first-year law class at Osgoode Hall. She says she teaches the piece because she wants her students to “have a sense of the kind of ideas that might be in a decision-maker’s mind if they were getting the law wrong.”
Cameron says all adjudicators, whether in the criminal system or refugee system, are supposed to have a “legal bias” favouring the accused — or in the case of refugee law, favouring the claimants.