When in Doubt: The Law of Fact-finding in Canadian Refugee Status Determination

Which mistake is worse: to deny a refugee claim that should have been granted, or to grant a claim that should have been denied? Canadian refugee law has not made up its mind. In any area of legal adjudication, the law’s error preference lies at the root of the structures that allow decision-makers to resolve their doubts: its burdens of proof, standards of proof and presumptions. The Federal Court, where Canadian refugee law is made, is divided on the question of which kind of error Refugee Board members should prefer, and as a consequence, the law’s fact-finding structures work at cross-purposes. Board members are therefore often free to choose whether to resolve their doubts in a claimant’s favour or against her, and since refugee status determination is mainly about fact-finding, this helps to explain the infamous disparities in the Board’s grant rates. These disparities could suggest that many members must be highly suspicious or highly trusting, or else deciding claims on a whim or in bad faith. But in order to make nothing but negative decisions, a member does not need to be cynical or biased. He simply needs doubt, along with access to the structures that allow him to resolve that doubt against the claimant. To make nothing but positive decisions, a member does not need to be highly credulous. She could, on the contrary, be full of doubt, and choosing to resolve that doubt in the claimant’s favour. Doubt lurks around every corner in a refugee hearing, and so even if every member decided in good faith, such a system could be expected to have difficulty treating similar cases consistently. And of course, if members can make whichever decisions they prefer for whatever reason they want, the system is vulnerable to influence and abuse.S.J.D.2018-06-23 00:00:0