The Battle for the Wrong Mistake: Risk Salience in Canadian Refugee Status Decision-making

Canadian refugee status adjudicators must choose between two opposing bodies of law, one of which resolves doubt in the claimant’s favour and the other at the claimant’s expense. How do they decide which to prefer? How do they decide whether it would be better to risk accepting an unfounded claim or to risk rejecting a well-founded one? This paper explores one potentially relevant factor: the salience of the harms that decision-makers associate with potential risk outcomes. A brief account of recent events in Canadian refugee law history, beginning with the refugee law reforms of former Conservative Immigration Minister Jason Kenney, shows how risk salience can be manipulated. For each refugee claim to be heard on its own merits, the law cannot leave adjudicators to decide for themselves which kind of error to prefer. It must recognize that sending a refugee home to persecution is the wrong mistake.