Refugee law's fact-finding crisis : truth, risk, and the wrong mistake / Hilary Evans Cameron.
2018
K3230.R45 C36 2018 (Map It)
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Details
Title
Refugee law's fact-finding crisis : truth, risk, and the wrong mistake / Hilary Evans Cameron.
Published
Cambridge ; New York, NY : Cambridge University Press, 2018.
Copyright
©2018
Call Number
K3230.R45 C36 2018
ISBN
9781108427074 hardcover
1108427073 hardcover
1108427073 hardcover
Description
xii, 219 pages ; 24 cm
System Control No.
(OCoLC)1006443026
Summary
"Which mistake is worse: to deny a refugee claim that should have been granted, or to grant a claim that should have been denied? The law that governs fact-finding in any legal domain is built on a judgment about which potential error a decision-maker should prefer. Decisions to grant or deny refugee protection often hinge on findings of fact, yet refugee law has not engaged with this question. This hole in the law's foundations may well be undermining refugee protection across the globe, for as this book intends to show, it is contributing daily to the dysfunction of one the world's most respected refugee determination systems"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Soll Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Soll Fund
Table of Contents
Acknowledgements
x
Introduction
1
PART I
5
1.
Wrong Mistake
7
Traditional Economic Approach
10
Psychologically Founded Theory
11
Comparative Study
14
Wrong Mistake in the Criminal Law
15
Wrong Mistake in the Civil Law
20
Conclusion
24
PART II
25
2.
Setting the Scene
27
At the Refugee Board
29
At the Federal Court
38
Case Study: Method and Findings
39
3.
Wrong Mistake: Sending a Refugee Home
42
Wrongly Disbelieving the Claimant
44
Claimant's Testimony
44
Claimant's Conduct
60
Troubles Getting Evidence
69
Overlooking Objective Danger
74
Denying Claims on Procedural Grounds
75
Conclusion
78
4.
Resolving Doubt in the Claimant's Favour
79
Burden of Proof
79
Standards of Proof
82
`Well-foundedness' Threshold: How Much Risk Is Risk Enough?
83
State Protection Threshold: How Much Protection Is Enough Protection?
85
Presumption of Truthfulness
87
In Civil and Administrative Law Generally
88
Within Refugee Law
90
Conclusion
96
5.
Wrong Mistake: Accepting an Unfounded Claim
98
Refugee Claimants Are Ordinary Litigants
98
Acting Rationally and Responsibly within the Hearing Process
102
Acting Rationally and Responsibly outside of the Hearing Process
112
Member Is an Ordinary Decision-Maker
118
Judging Demeanour
120
Judging Plausibility
121
Conclusion
129
6.
Resolving Doubt at the Claimant's Expense
133
Burden of Proof
133
Standards of Proof
139
`Well-foundedness' Threshold: How Much Risk Is Risk Enough?
139
State Protection Threshold: How Much Protection Is Enough Protection?
147
Presumptions
151
Presumption of State Protection
151
Presumption of Truthfulness
154
Conclusion
160
7.
In the Hearing Room
161
Conflicting Standards of Proof
162
Permissible Inferences: Rational Action and Memory
166
Conclusion
171
PART III
173
8.
Way Forward
175
Wrong Mistake in International Refugee Law
175
Principle of Non-refoulement
180
Refugee Status Determination Is Declaratory
181
Duty to Resolve Doubt in the Claimant's Favour
182
Karanakaran Approach
184
Traditional Common Law Legal Theory: Truth-Seeking and Inductive Inference
185
Karanakaran: Risk Assessment and Inference to the Best Explanation
187
Abductive Reasoning
192
Refugee Status Determination as an Abductive Risk Assessment
197
Explanation in a Refugee Hearing: Theory and Counter-theory
199
Josephson on `the Best Explanation'
202
Conclusion
210
Index
212