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18 results

  • 8 - A Way Forward

  • from Part III
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 175-211

  • Summary

    Which mistake is worse: to deny a refugee claim that should have been granted, or to grant a claim that should have been denied? The first part of this chapter argues that denying a genuine claim is the wrong mistake under international refugee law. Two core elements of the refugee protection doctrine – the non-refoulement principle, and the declaratory nature of refugee status determination – combine to create an apparent problem within the law. This problem can only, and can neatly, be solved by recognizing that states have a duty to structure refugee status decision-making to err in the claimant’s favour. The second part, drawing on UK and Australian jurisprudence, proposes a new approach to refugee status decision-making that reflects this legal imperative to resolve doubt in the claimant’s favour. It argues that a model of legal reasoning built on abductive rather than inductive inference would best equip refugee status decision-makers to fulfil their risk assessment obligations under the Convention.

  • 7 - In the Hearing Room

  • from Part II
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 161-172

  • Summary

    Burdens of proof, standards of proof and presumptions are supposed to constrain decision-makers to follow the law’s guidance on which mistake to favour – ideally in reaching their conclusions, and at least when it comes to justifying them. The Federal Court’s judgments in the preceding chapters leave the members of the Canadian Refugee Board fully unconstrained. They could hardly be freer to follow their own sense of which mistake is worse. As long as they are in doubt, or can credibly claim to be, members can decide whether their uncertainty will help or harm claimants, which will often allow them to justify either conclusion on the same evidence. Not only are members free to adopt either of the Court’s two conflicting approaches to resolving doubt, but they will often be able to frame their findings to take advantage of either the lower or the higher of the law’s two standards of proof, and the debates within the Court about rational action and memory have created two powerful ‘permissible inferences’ that allow members the option to preserve or to displace the presumption of truthfulness.

  • 5 - The Wrong Mistake: Accepting an Unfounded Claim

  • from Part II
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 98-132

  • Summary

    The Canadian Federal Court often conceives of refugee claimants as ordinary litigants in a standard legal proceeding. Seen from this perspective, claimants cannot be assumed to be vulnerable. Like other litigants, if they claim any relevant vulnerability, they must prove it. Like other litigants, they have responsibilities to the legal system, and they must also be assumed to be rational actors who calculate costs and consequences and act in their own self-interest. Moreover, adjudicators are not being asked to accomplish anything extraordinary. All they need in order to judge a refugee claim are the common sense and reason required of any legal decision-maker. In short, the Court often firmly rejects the notion that refugee law is a special case.

  • 2 - Setting the Scene

  • from Part II
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 27-41

  • Summary

    This chapter sets out the relevant aspects of the Canadian refugee system, in a discussion that also highlights what is familiar, and what is decidedly unfamiliar, about the process of accepting or rejecting allegations in refugee status decision-making. Like many legal decision-makers, adjudicators deciding refugee cases spend most of their time trying to establish facts. Their task, however, is uniquely difficult. They are required to assess risk, an inherently uncertain exercise, in a context in which there is exceptional room for doubt: they typically have little information and no expert tools with which to analyse it. This chapter explains the case study’s approach and concludes with an overview of its findings, which suggest that this tension between the familiar and the unfamiliar lies at the root of the divisions within Canadian law on the question of which mistake to prefer.

  • 6 - Resolving Doubt at the Claimant’s Expense

  • from Part II
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 133-160

  • Summary

    When the Canadian Federal Court conceives of a refugee hearing as a regular legal proceeding, it sees no reason to depart from the common law’s traditional preference for resolving doubt against the party who brought the matter forward. It therefore attempts to ensure that the law of fact-finding functions here as it does elsewhere, with structures that resolve doubt at the claimant’s expense, and that reflect the familiar logic of a legal proceeding rather than the alien logic of a risk assessment.

  • 3 - The Wrong Mistake: Sending a Refugee Home

  • from Part II
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 42-78
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  • Summary

    The Canadian Federal Court often conceives of refugee law as a special case. It imagines refugee claimants as particularly vulnerable litigants in a process that puts their most fundamental rights at stake. It imagines that refugee status adjudicators are being asked to accomplish something quite extraordinary: to assess risk in a context characterized by exceptional uncertainty, one in which obstacles confront them at every turn. The Court’s judgments often reveal a profound concern that, in this uniquely challenging fact-finding environment, refugee claimants face a heightened risk of being misunderstood and wrongly disbelieved.

  • 4 - Resolving Doubt in the Claimant’s Favour

  • from Part II
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 79-97

  • Summary

    The law in Canada, as in very many other jurisdictions worldwide, typically resolves doubt against the moving party. When the Canadian Federal Court interprets refugee law’s fact-finding structures, however, it often views them through the lens described in the last chapter: with an understanding that refugee law is a special case, and with a deep concern for avoiding mistaken rejections. Seen from this angle, it makes sense to design the law’s obstacle course to try to avoid a particularly devastating kind of harm to a particularly vulnerable kind of litigant, and the Court interprets these structures in a way that resolves doubt squarely in the claimant’s favour.

  • 1 - The Wrong Mistake

  • from Part I
  • Hilary Evans Cameron
  • Book:
    Refugee Law's Fact-Finding Crisis
    Published online:
    20 April 2018
    Print publication:
    10 May 2018, pp 7-24

  • Summary

    Who will benefit and who will suffer from a legal decision-maker’s doubts? Since a tie-verdict is not possible in law, decision-makers must resolve their doubts in one direction or the other, and burdens of proof, standards of proof and presumptions govern this process. Together they design the obstacle course through which a party’s case will move on its way to the finish-line. By making this party’s job easier or harder, they reflect an underlying judgment about which kind of mistake is worse: a mistake in her favour or a mistake at her expense. While legal scholarship typically imagines that this judgment results from a rational calculus, this book suggests that it often reflects, instead, a desire to avoid a particularly salient kind of harm, as illustrated through a comparative study of criminal and civil law in common law jurisdictions.

Refugee Law's Fact-Finding Crisis
  • Truth, Risk, and the Wrong Mistake
  • Hilary Evans Cameron
  • Published online:
    20 April 2018
    Print publication:
    10 May 2018
  • At a time when many around the world are fleeing their homes, seeking refugee protection has become a game of chance. Partly to blame is the law that governs how refugee status decision-makers resolve their doubts. This long-neglected branch of refugee law has been growing in the dark, with little guidance from the Refugee Convention and little attention from scholars. By looking closely at the Canadian jurisprudence, Hilary Evans Cameron provides the first full account of what this law is trying to accomplish in a refugee hearing. She demonstrates how a hole in the law's normative foundations is contributing to the dysfunction of one of the world's most respected refugee determination systems, and may well be undermining refugee protection across the globe. The author uses her findings to propose a new legal model of refugee status decision-making.