At a time when many around the world are fleeing their homes, seeking refugee protection has become a game of chance, says Dr Hilary Evans Cameron, keynote speaker at the upcoming Kaldor Centre Conference 2019 and author of Refugee Law's Fact-Finding Crisis: Truth, Risk, and the Wrong Mistake (Cambridge University Press, 2018). Her book looks at the law that governs how refugee status decision-makers resolve their doubts. Here, she explains what is not working and why.
Refugee status decision-makers are often left with doubts – doubts about whether to believe a claimant’s evidence, doubts about whether the claimant will be at risk if they return home. And refugee law internationally has not yet made clear enough to these decision-makers how they should resolve these doubts. The Canadian Federal Court, for example, essentially offers our adjudicators two competing bodies of law, one that allows them to resolve their doubts in the claimant’s favour, and the other at claimant’s expense. Our adjudicators can choose in any case, for any reason, whether the claimant will benefit or suffer from their uncertainty. Under such circumstances, inconsistent decisions are not surprising. It would be truly surprising if these decisions were any more coherent than the law that governs them.
Not yet, but there should be. Implicit within the Refugee Convention is the notion that doubt should be resolved in the claimant’s favour, that it is a worse mistake to refuse protection to a refugee than to offer it to someone who does not need it. A maxim would help to make this clear to decision-makers. Blackstone’s 10:1 ratio has been the topic of much distracting debate. For our purposes, I would say simply: It is much better to accept a claim that should have been rejected than to reject a claim that should have been accepted.
The law does not expect decision-makers to be neutral. On the contrary, the law expects them, in resolving their doubts, to prefer the right kind of mistake.
No one can ever be neutral in deciding whether or not to accept an allegation. Two questions will always come up that will force that decision-maker to take sides. How certain must they be before they accept that the allegation is true? And what should they do if they are on the fence, if they cannot decide whether they are certain enough? The answers to these questions will make it easier or harder for an allegation to prove itself, and so they reflect a judgment about whether it would be better to err on the side of accepting more false allegations or rejecting more true allegations.
We do not want legal decision-makers to decide for themselves how they would prefer to err. As discussed above, that would be a recipe for inconsistent decision-making. Instead, the law itself decides how they should resolve their doubts. The law answers these two questions by means of its fact-finding structures: its standards of proof, burdens of proof and presumptions. The decision-maker’s job is to apply this law and to resolve their doubts accordingly, in keeping with the law’s error preference.
Two theories lie at the heart of the popular posts that suggest that there are real-time clues in a person’s behaviour that can help us to figure out whether they are lying. The first is that liars are more nervous or afraid than truthtellers and that their bodies will betray these emotions. Based on this theory, these posts suggest, we should look for signs that the person is feeling these emotions strongly: they might fidget, or avert their eyes, or take defensive poses. The second theory is that it takes more mental energy to lie than to tell the truth. Based on this theory, we should look for signs that the person is working very hard to tell their story: they might hesitate, or trip over their words, or speak more slowly.
When we use clues like these to decide if a person is telling the truth, we are only slightly more accurate than if we had decided by tossing a coin. This has been observed in hundreds of studies and it is as true of so-called ‘experts’ like veteran police detectives as it is of lay people. And what is more, in a refugee interview there is simply no reason to think that either of these grounding theories will apply. A truthful claimant who genuinely fears returning home may well be more nervous or frightened than one who does not. And testifying about one’s own traumatic experiences may take much more mental energy than repeating a made-up story. This is of course to say nothing of the many other factors that could distort this kind of assessment: the fact that the decision-maker is judging a person from a different culture, one who is often testifying through an interpreter, who is typically exhausted and who may be suffering the after-effects of trauma.
Why should we be ‘harder’ on refugee claimants than on people charged with murder? The police and the prosecutor believe that Mr. A has murdered someone, but we still give him the benefit of the jury’s doubts. Mr. B says that his government will torture him if he returns. Why should he pay, potentially with his life, for our decision-makers’ uncertainty?
Refugee status decision-makers should accept the theory that the claimant is asking them to accept unless a counter-theory is decidedly more persuasive – unless it seems decidedly more likely that the claimant is not telling the truth, for example, or that the risk is not as serious as the claimant thinks it is. Taking this approach, refugee status decision-makers will still deny many claims. They will deny them for the same reason that juries convict: because they are confident enough. In many cases, at the end of the day, refugee status decision-makers will be convinced of the counter-theory, rightly or wrongly. We all think that we can spot a liar, even when we cannot – and the same studies that show that our accuracy does not increase with experience also show that our confidence does.
Blackstone’s maxim has stood at the heart of our criminal law for centuries, but criminal courts still manage to convict. Resolving doubt in the claimant’s favour would not open the border any more than Blackstone’s maxim has emptied the jails.
Dr Hilary Evans Cameron is a former litigator who represented refugee claimants for a decade and now holds a doctorate in refugee law from the University of Toronto. In addition to speaking at the 26 November Kaldor Centre Conference at UNSW Sydney, she will appear in Melbourne on 27 November at ‘Truth lies and refugee status’, in conversation with a Protection Obligations Decision Maker at Australia’s Department of Home Affairs, Shaun Hanns, moderated by the leading barrister and human rights advocate Julian Burnside AO QC.