The Perils of Judging "Subjective Fear": A Reminder Amid Canada’s Refugee Backlog

As a refugee lawyer with over 20 years at hearings, a former refugee protection officer, and someone who tackled unwarranted deference to adjudication in my LLM research, I’ve seen the Immigration and Refugee Board (IRB) wrestle and sometimes struggle with assessing claims. Today’s Refugee Protection Division (RPD) backlog—260,000 cases and counting—cranks up the pressure. Members face a tough gig: decide fast and get it right. Lives hang in the balance. Revisiting Risk Theory and ‘Subjective Fear’ by Hilary Evans Cameron—a brilliant Canadian lawyer and academic I met during my LLM (2009/2010)—provides a caution to Members basing their decisions on (negative) credibility findings and a touchstone for refugee advocates. Her critique of how adjudicators judge fear is a wake-up call, especially now. Canadian law demands claimants prove objective risk and subjective fear. RPD members lean on three ‘common sense’ beliefs: the truly afraid flee instantly, seek protection in the first safe country, and never return home. Delay, fail to claim at the first opportunity, or go back despite persecution and risk? You’re not scared—and therefore not credible. Cameron torches these assumptions with psychology, sociology, and anthropology research. They’re not evidence-based, she says, but adjudicator-made folklore falls back on the intuitive but... Read more →