Today's hearing, where my client and I navigated the intense and often microscopic questioning from a member, was a reminder of the challenges refugee claimants face, even in cases that appear prima facie strong. My client, an LGBTQ+ individual fearing return to a repressive country, was subjected to a level of scrutiny that may have felt overwhelming for her; I was not overwhelmed but certainly put off given the development in the jurisprudence and the Board's own policies in this regard.
The hearing started off with a deep dive in terms of a delay in making the claim.
Decision makers continue to make assumptions about how people "should" respond to fear and danger.
Hilary Evans Cameron, a former classmate of mine at Osgoode Hall, has deeply examined this issue in her research. She points out that adjudicators often assume that those who fear for their lives will behave in predictable ways—fleeing immediately, seeking protection in the first safe country they reach, and never returning to their homeland. But as Cameron's work makes clear, these assumptions are not based on evidence; rather, they ignore decades of research across disciplines like psychology, sociology, and anthropology, which show that human responses to danger are far more varied and complex.
In today's hearing, this flawed perspective was evident in the way the member probed every detail of my client's testimony, seemingly searching for any inconsistency to undermine their credibility. At one point the Member wanted to know why an amendment was made to the original narrative (the amendment was small and sent in well before any deadlines and as per the Rules). Damned if you do and damned if you don't I suppose; if you don't amend a narrative and the testimony is at odds then it's an omission -if you do amend, then the question is why it wasn't included in the first place.
As Cameron argues, such judgments are fraught with pitfalls and can be fundamentally unsound. Demeanor, consistency, and the level of detail in a story—often seen as indicators of credibility—are unreliable. A confident, detailed account might simply be well-rehearsed, while nervousness or gaps in memory can be the natural result of trauma, especially when recounting deeply personal experiences like those involving sexual orientation or gender identity.
Beyond the microscopic treasure hunt search for issues, the Member had, shall we say, a different approach in approaching my client's sexuality/sexual expression/orientation.
I had to object when the Member wanted to know how my client "satisfied her desire" before she came to Canada -unnecessary given the significant, credible and corroborative evidence that had already been submitted as disclosure.
After about 2 hours of questioning, the Board Member finally asked what it was that my client feared in returning to the country of return.
The challenge for refugee decision-makers is not just in weighing evidence but in understanding the psychological and cultural contexts that shape how people respond to fear. Today's hearing reinforced that this understanding is crucial if a well meaning decision maker is to make just decisions in these life-altering cases. My client's experience today, under such intense scrutiny, underscores the need for a more nuanced approach to credibility assessments, one that goes beyond superficial judgments and takes into account the complex realities of human behavior under extreme stress. Without this shift, we risk failing those who come to us seeking protection, and that is a failure we cannot afford.
Of course, that shift is the whole point of the Guideline(s) and one can only hope that this experience was an outlier.
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