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 ignores how humans actually assess danger and risk. She insists members must weigh “the psychological and cultural factors influencing the claimant’s risk perception, assessment, and management” before inferring anything. Even then, human behavior’s variance makes subjective fear a shaky peg for life-or-death calls.
Why Fear Isn’t One-Size-Fits-All
Cameron unpacks why claimants defy expectations:
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Familiarity: Colombians might shrug off kidnapping threats—routine there—like Canadians do car crashes despite thousands dying yearly.
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Control: Feeling (even falsely) in charge cuts fear; without it, some turn defiant, others passive from learned helplessness.
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Appeal: A mother risks return for her kids, unable to bear time apart and making a desperate calculation.
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Risk Tolerance: Some are more apt to roll the dice (Joe Rogan-style), others shun it.
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Optimism Bias: “It won’t hit me”—claimants delay, chasing a mirage of safety.
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Place Attachment: Home’s grip—keeps them rooted.
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Faith: Where fate rules, fleeing’s not reflex—it’s surrender.
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Outcome History: Dodged bullets before? Past luck skews future bets.
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Lay Knowledge: Many rely on the whispers and advice given to them by their own community members over government websites and expert opinions.
Then there’s the devil-you-know trap: fleeing swaps embodied risks (harm) for non-embodied ones (lost identity, family). It’s a brutal choice—many stick with the familiar evil for perhaps too long.
The Cost of Misreading
Misjudge fear, and claimants suffer. Trauma can paralyze, defiance can subsume terror—she points to U.S. communities rejecting cancer prevention not from apathy, but resolve (hope against hope or hope despite statistics and science). Claimants dig in too, refusing to let persecutors win. Yet members, pressed to wrap cases in 3.5 hours, may well lean on shortcuts. Add claimants from diverse worlds—traumatized, varying levels of sophistication, variably represented, with the assistance of interpreters also of variable ability and judged by members of varying skill, background and experience—and credibility calls get dicey all too often.
Squaring the Circle
Cameron’s right—human responses don’t fit neat boxes. Claimants hesitate not from fearlessness, but humanity and the fragility of the human condition (h/t Justice Shore). But with 260,000 cases, how do members pivot? The existence of the Refugee Appeal Division (RAD) might tempt some to shrug and stereotype, assuming the backstop will catch their errors and pass the buck. Meanwhile, cessation applications spike as returnees face scrutiny—though there is better case law here. Practitioners must stay “alert, alive, and sensitive,” challenging shaky assumptions. Hilary’s work isn’t just a critique—it’s a rallying cry. In this backlog crunch, we can’t let stereotypes and assumptions decide fates.
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