An official view of the daily drama behind the quest for refuge

by Peter Showler

Refugees can change the law. A man named Singh sought asylum in Canada in the early 1980s claiming fear of persecution in India. He was interviewed by an immigration officer and a verbatim record was sent to an official panel in another city. The decision-makers never saw him; they never heard him describe his experiences or speak about his fear of persecution if he were returned to India. They rejected his claim for asylum based solely on the record of his interview and other documentation.

Mr. Singh's story did not end there. He appealed his rejection and in 1985 the Supreme Court of Canada said that procedural fairness required that a refugee claimant must be allowed to speak directly to an asylum panel. This was particularly true if the credibility of the refugee claimant was at issue.

At the time (and still today in many western democracies) immigration or justice officials interviewed and made an initial decision on refugee claims. Courts or administrative law tribunals were reserved for reviewing the decisions of government officials by way of appeal. Some appellate bodies had the authority to hear the live testimony of the claimant, others were limited to a review of the written evidence.

Following the Singh decision, Canada chose a radically different way. All eligible claimants would now receive a hearing before a two-member panel of the Immigration and Refugee Board (IRB) to ensure that (s)he received a full opportunity to explain why (s)he feared persecution. If panel members disagreed, the claim would be decided in favor of the applicant.

The claimant was assured a wide range of protection including the right to counsel and an interpreter, the right to be heard, prior disclosure of all documentary evidence and written reasons justifying a negative decision.

No one was assigned the institutional role of opposing the claim. A neutral refugee hearing officer would assist board members by preparing documentary evidence and questioning the applicant. Both claimant and hearing officer would have full access to a world-class documentation center containing human rights and country information. The asylum seeker, as well as the refugee officer, could make submissions on the evidence.

WORKING WELL

By and large, the Canadian system has been successful. Yet, despite all of the procedural protections, there are certain inherent qualities to the refugee experience that will always present a challenge to the most astute and conscientious decision-maker.

In addition to the relentless pressure of mounting caseloads demanding a rapid and efficient hearing, the decision-maker must address the unique realities of hearing refugee claims.

Every day board members hear stories of human suffering. Occasionally, it is horrific: rape, beatings, imprisonment, torture, threats of death to the claimant or their family. Sometimes it is unspeakable, beyond imagination. I recall a Tutsi survivor of Rwanda's genocide whose home was invaded by a gang of machete-wielding men, and who was left for dead. She recovered consciousness to find the bodies of her family littered about her on the floor.

It is the member's job to decide the credibility and truth of each story and whether the claimant's fear conforms with the definition of a Convention refugee.

It is a wonderful privilege for board members, if a claimant is judged to be telling the truth, to inform someone who genuinely fears persecution that they are safe and have found asylum.

Many refugees also earn the respect of officials. They tell more than a tale of oppression. Their stories are often a triumph of the human spirit, of the will to survive, to endure, to maintain a sense of personal dignity in the most debasing of circumstances.

Another reality in this day by day drama is less pleasant, when a member does not believe the claimant or finds his or her fear of persecution is not well-founded.

Sometimes their story does not fit the refugee definition, there has been a change of circumstances or the specific harm feared does not fit the definition of persecution. Sometimes the story is exaggerated and the applicant is simply fleeing poverty, squalor and general oppression. Sometimes the story is fabricated but contains the ring of truth because the claimant is the persecutor rather than the persecuted. Sometimes the story is simply false.

TERRIBLE REALITIES

The most terrible reality is that it is often very difficult to distinguish between a genuine and false refugee. Therein lies the ultimate challenge.

The majority of claims fall into a middle ground where the evidence is ambiguous and certainty is elusive. Board members have several tools to assess credibility: they are well-trained, they have country expertise and country information and a research center for specific claimant information.

But the challenges remain formidable. Claimants are often not good witnesses. They may be poorly educated, confused, traumatized, inarticulate, frightened. Their cultural and social realities may be totally different from that of a board member.

They don't understand questions and appear evasive. They speak through an interpreter, which always blunts the immediacy of their testimony and occasionally causes real confusion. The events they describe occurred in far away countries in the middle of civil strife and are often impossible to document.

Both genuine and false asylum seekers use illegal means to come to Canada. Ironically, while many people lack adequate documents, some wealthy 'illegal' claimants may have all the necessary paperwork, having bribed corrupt officials or smugglers back home.

In summary, board members daily see people who tell imperfect stories of horrible personal abuse which may or may not be true and which are not easily verified by normal objective forms of evidence. Their job is to listen carefully and to make a well-reasoned decision promptly, within the law and rules of natural justice. It is a humbling and difficult task, but I am sure that Mr. Singh would agree, one well worth the effort.

Peter Showler is the Chairman of Canada's Immigration and Refugee Board (IRB).

Source: Refugees Magazine Issue 123: "The Wall Behind Which Refugees Can Shelter" – The 1951 Geneva Convention 50th Anniversary (July 2001). Download the complete issue (pdf, 1.2Mb) here