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FOCUS June 2016 Volume 84

Deciding on Protection Pleas

Jefferson Plantillia

How should applications for protection by people who crossed national borders, at times at great risk to their lives, be considered? What make these cases different from pleas for protection by citizens and residents of the country?

For those who advocate for proper application of international standards on handling cases of refugees and asylum seekers, one important principle to keep in mind is the principle of “obligation to protect” those who flee their countries  due to persecution and other serious threats to their safety. Countries that have ratified the Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights have to comply with their “obligation to protect.”

The International Association of Refugee Law Judges (IARLJ) saw the need to clarify how this international principle of “obligation to protect” should be applied in concrete. The paper entitled “A Structured Approach to the Decision Making Process in Refugee and other International Protection Claims," explains:1

Noting the “protection obligations” which states have entered into, pursuant to international law, and recognising the gravity of the predicament that may face claimants who are in need of international surrogate protection from serious harm, judges (and other decision makers) must approach all claims with an outlook that gives claimants full individual respect and recognizes the seriousness of the task being undertaken. In the simplest of terms the task is to make a soundly reasoned, objective assessment of all the material evidence from which, noting the accepted characteristics of the claimant and relevant COI [country of origin information], the question whether there is a real risk of the claimant being persecuted or suffering other qualifying serious harm on return must be determined.

While not binding to “judges and other decision makers,” the paper provides a comprehensive discussion of the various elements of a “structured approach” to deciding refugee and other international protection claims. The paper likewise aims to be “instructive to all decision makers, counsel and claimants.”

Guide to Decision Makers

The substantive guide to decision makers contains the following:
1. Flowchart of Using International Judicial Criteria and Guidance;
2. International Judicial Guidance for the Assessment of Credibility
 i. Basic Criteria and Standards of Good Practice,
 ii. Basic Criteria Applicable for Credibility Assessment of Claimants,
 iii. International Judicial Guidance on Best Practice in Credibility Assessments
a) Treatment of Substantive Evidence,
b) Procedural Standards,
c) Treatment of Vulnerable Claimants,
d) Residual doubts and the “benefit of the doubt” principle;
3. The COI Judicial Checklist.

The paper was presented in the conference entitled “The Role of the Judiciary in Asylum and Other International Protection Law in Asia” held in the Judicial Research and Training Institute of Korea on 10 - 11 June 2016. It was also provided to participants of the Advanced Training Workshops organized by IARLJ on 9 June 2016.

For further information, please contact: Ms Joy Ottaway, Conference Registrar, e-mail: joy.ottaway@internet.co.nz.

1 Allan Mackey, Martin Treadwell, Bridget Dingle and Bruce Burson authored the paper under the auspices of IARL

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