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How to Make a Decision in Refugee Law

I’d like to continue with our discussion of human rights by looking at the basis on which I (and perhaps others) as a human-rights decision maker would make a decision in the field.

For those who are new to this line of inquiry, I served for eight years as a Member of (or refugee adjudicator with) the Immigration and Refugee Board of Canada.

I discuss this subject because the formal process we followed would be useful to consider when deciding how to interact with others informally so as to respect their human rights.

I have to acknowledge too that I was not a legally-trained adjudicator. The Canadian Refugee Board liked to have a mix of community and legal members and I was from the former group. So my understanding of some legal concepts may not be as deep as some others.

Different legal claims have to reach different thresholds of proof. For some that threshold might be beyond a shadow of a doubt; for others beyond a reasonable doubt. For a human-rights claim the threshold is on a balance of probabilities, which boils down to more likely than not.

The threshold is fairly low because many refugee claimants have fled their country and may be without proper documentation. Some may have been memory-impaired as a result of being tortured. Their ability to prove what they allege may be lower than in the case of a resident or citizen of the country they’ve fled to and so the threshold of proof is lower.

What is being decided in a human-rights claim is whether a person, if they were to return to any part of their country, would likely face a danger of persecution on certain grounds such as race, nationality, religion, gender, political opinion, etc.

In all cases in refugee law as practiced in my country, the benefit of the doubt went to the claimant.

For me, the deciding of a claim to do with human rights involved three steps.

The first step was to determine credibility, which means whether a claimant’s story is reliable or believable or not. I’m going over these matters for what can be borrowed from human-rights decision making and made use of in everyday life.

Human-rights decision makers can almost never be certain that what they are hearing is the truth. The most they can probably ascertain is whether it is likely that they’re hearing the truth.

They make that assessment on whether testimony does or does not have contradictions and inconsistencies and whether what the claimant says is improbable, impossible, or implausible.

  • A contradiction is a statement that contains contrary elements or discrepancies.
  • An inconsistency is a statement that is incompatible with other statements.
  • Improbable means not likely to happen or be true.
  • Impossible means not capable of happening, existing, or being true without contradicting proven facts, laws, or circumstances.
  • Implausible means not seemingly or apparently valid, likely, or acceptable.

Any of these features reduces the believability of the account or reliability of the witness uttering it. In refugee law, however, the decision-maker can’t simply dismiss an account because it contains some of these problems. He or she must also see if a credible remainder of evidence exists sufficient to ground a positive decision or whether the credibility problems are so great as to render the whole account unacceptable.

The decision maker is charged at arriving at an assessment of these matters on the basis of a reasonable assessment of all relevant circumstances, based on the claimant having had a fair and reasonable opportunity to state his or her case.

He or she is also expected to listen in a fair and impartial way to what is said. The claimant is expected to make timely and open disclosure of all the facts relevant to the claim before the case.

One cannot expect that the claimant won’t have lied prior to approaching the refugee tribunal, because the claimant will have been fleeing dangerous or life-threatening circumstances, But one can expect the claimant not to lie to the tribunal.

Having listened to the whole of the case the claimant presents, sometimes through representation (counsel) and sometimes on their own, with the help of the Board’s own legal officers, the decision maker is then expected to reflect on the whole and arrive at an assessment of credibility.

If the claimant was judged to be non-credible, the decision, or report on the claim, need go no further. But if the decision maker was satisfied overall as to credibility, then the claim would go to the next step.

The next step involved a legal determination of the claimant’s status (refugee or not) based on such matters as a review of international human-rights conventions (such as the Universal Declaration of Human Rights and other charters), statute law, precedent, current affairs, history, and tribunal procedure. If the claimant’s claim passed all these hurdles, he or she could be adjudged to be a refugee.

But the really important step was the last one.  I don’t really consider it the third step. I consider it the basis of the whole process. For me it was the most important consideration in refugee law and that was the application of the test of fairness.

Whether the adjudicator, or decision maker, was fair or not was a calculation that all lawyers coming before the Board would have already made before coming into the hearing room. It was common talk among counsel to say, “Oh, you don’t want to come before Mr. Smith but you do want to come before Mrs. Jones.” And usually what they were judging was whether the decision-maker was fair or not.

Being unfair usually meant being arbitrary, quick to judge, partial, etc. It could also mean uncommitted, lazy, venal, etc.

When I first joined the Board my wife bought me a brass set of scales, representing the scales of justice. Every time I entered the hearing room, in my imagination, I’d put that set of scales between me and the claimant. The question in my mind in all matters was is what I’m about to say or do fair to the claimant? Fair to counsel? Fair to the people of my country?

For my purposes, I’m willing to say that the whole of refugee law, the whole basis of decision making in matters of persecution and human rights revolves around fairness. And I’d be willing to extend that and say that the whole basis of getting along in society revolves principally around fairness.

Among the circumstances in refugee law that indicate a lack of fairness on the part of the decision maker and could have a decision overturned by the senior branches of the law that review the tribunal’s decisions, the most prominent is a lack of impartiality on the part of the decision-maker, a lack of even-handedness or balanced assessment, which boils down to a lack of fairness.

These then are the three steps that I (and perhaps others) would follow to arrive at a fair and impartial decision in a case that revolved around the claimant’s human rights.

 

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