Credibility Analysis and Decision-Making – Part 2/2
December 15, 2016 by Steve Beckow
(Concluded from Part 1.)
If I were to tell you the number of sources that we had to take into account before writing a refugee-determination decision, you’d fall out of your chair.
OK, I will. Hold on tight.
- The claimant’s Personal Information Form
- The claimant’s oral testimony
- Documents the lawyer representing the claimant produces, some even at the hearing
- The Canadian Charter of Rights and Freedoms
- The Immigration and Refugee Protection Act
- United Nations and other international, refugee-related charters, conventions, and treaties
- The Board’s own guidelines, such as TheGender Guidelines
- Country-conditions reports like the State Dept.’s Country Reports on Human-Rights Practices
(I now would be concerned that the cabal may have influenced this literature)
- The Immigration and Refugee Board’s own country-conditions and HR issues packages
- The media research the Refugee Protection Officer attaches to the claim docket
(mostly from the mainstream media, which I’d now question)
- The leading cases in Canadian and international refugee law.
- Persuasive decisions from among other Members.
- Departmental directives and procedures.
How did we arrive at a decision?
We gathered up all the information we needed to make it – and you see what that was.
We heard the claimant’s oral testimony and cross-questioned him or her on it.
Contradictions and inconsistencies in their written narrative, contained as part of the Personal Information Form, had been submitted to the claimant for explanation.
All of this was placed to one side.
On the other side were the “objective documents” – The country reports, journalists’ accounts, NGO (non-governmental organizations like Amnesty International and Human Rights Watch) literature, etc.
Alongside of them were the reminders of my obligations under law and treaty: The UDHR, the Canadian Charter, IRPA, on and on and on.
I drew together my computerized notes (cut and paste) from all of it – pro and con. (1)
The important thing I want to say here – and what all of this has been building up to – is that the final decision is only made (A) after all of the due diligence described above has been performed and (B) after due reflection on all the germane evidence available to me in that moment.
The final decision is a yes or a no.
We had to go a step further of course and supply our “Reasons.”
The process I just outlined should have brought you up against every reason for yes and no. Finally a direction will emerge.
If I got it wrong, thankfully, the Federal Court of Canada would catch it and overturn me. If I were interested in ego boosting, I’d comment self-servingly here on how many times I was or was not overturned. But you and I don’t have time or need for that.
Someone wrote in a while back and protested about people posing as if they knew something when they only believed it to be true. I call that a question relating to the “status of our knowledge.” If I claimed a status of knowledge that was impossible, improbable or implausible for me to have, the Canadian courts would overturn me.
When you arrive at a decision, there should be the ring of truth in it for you.
In Canadian refugee matters, if you cannot arrive at a negative decision having the clear ring of truth for you as a decision maker, then the benefit of the doubt should go to the claimant.
If you think that’s fair, listen to this one. If the claimant’s testimony is in large measure not credible, and yet a rump of it remains that isn’t impugned, if that “credible remainder” is sufficient to ground a refugee claim in law, then the decision must go to the claimant.
I can’t guarantee that the Board still makes its decisions this way. It was terribly undermined by the cabal-dominated Harper Government. Hearing some of what happened, it sounds like it suffered greatly.
But that’s the way it was in my day and I still have tears in my eyes thinking of being raised under such a fair system of human-rights decision-making. (2)
- Gather in all relevant evidence.
- Separate the credible from the non-credible evidence, listening to the inner voice.
- Weigh everything, making notes.
- Reach your decision only after due reflection.
If you’re reading this because you’re a financial wayshower who plans to disburse funds through your own organization, drawing on decision-makers, then the only thing I’d add is the recommendation to ensure that the independence of your decision-makers is guaranteed.
There should be no discussion in the lunchroom or anywhere else of another person’s decision, except with the departmental supervisors.
There should be no sidebarring or gossiping about Members behind their backs.
Only if the decision-maker does not have to fear criticism will they make the tough decisions in line with their conscience rather than to avoid ridicule or criticism (or coercion).
(1) In my case, I didn’t stop there. From my cut-and-pastes I created dictionaries on country conditions and HR issues. These were made available to the other Members.
(2) I can’t speak for the rest of the refugee system; just decision-making.