To access state-based regimes for refugee protection, refugee applicants must speak. Within individualised processes for the determination of refugee status, refugees are required to present themselves before a decision-maker and convey, as best they can, the basis of their claim to protection. Generally, refugees must present their oral testimony in person, repeatedly and at length, unmediated by a legal representative or advocate, and in many cases without the benefit of documents, witnesses or other forms of evidence to support their claims. This book is about the oral testimony of refugee applicants. It is about the oral evidence that refugees are compelled to give, the stories they are required to narrate and the genres of storytelling they are required to master during administrative oral hearings for the assessment of refugee status in Australia and Canada. Specifically, the book examines how the testimonial evidence of refugee applicants is presented, interrogated and assessed within the refugee status determination (RSD) process and under domestic enactments of the Refugee Convention in both jurisdictions.Footnote 1 Its central question is what the presentation, interrogation and assessment of testimony during the oral hearing tells us about what is demanded of refugee applicants as testimony-givers and narrators within individualised RSD processes. It then asks what those demands, made of refugees and their testimony, reveal about the refugee subject whom Refugee Convention-signatory states judge as authentic, credible and ultimately, acceptable. I address these questions through the qualitative analysis of an original dataset of refugee oral hearings that took place before the Immigration and Refugee Board (IRB) in Canada and the former Refugee Review Tribunal (RRT) in Australia. Central to the book’s project is the claim that we cannot understand how RSD operates, nor the black box of what is referred to as credibility assessment within RSD, without closely studying the oral hearing and its conduct in full. Such a study involves fixing our attention on the frequently surprising, unpredictable and largely unexamined and undocumented exchanges between decision-makers and refugee applicants within specific refugee oral hearings.
In examining the conduct and content of oral hearings in Australia and Canada, this book also aims to bring critical insights from within ‘law and literature’ scholarship, and its engagement with the relationship between law and narrative, to bear on how refugee testimony is both presented by asylum seekers, and tested and judged by administrative decision-makers. How does placing narrative at the centre of an investigation into RSD reveal dynamics of interaction and processes of judgment that are central to the inclusion or exclusion of refugee applicants and to the intractable problem of credibility assessment? Certain strands of law and literature scholarship and popular discourse alike have cast narrative as emancipatory, and celebrated personal narratives and storytelling for both their political power and ability to contest legal norms and authority. What, then, does a focus on the role of narrative within RSD do to disrupt conceptions of narrative as necessarily empowering or as enabling resistance? Against accounts of narrative and storytelling as disrupting law’s authority, this book proposes a different account of the role and political place of narrative and narrative forms within (refugee) law and legal authority.
In my analysis of refugee oral testimony during the hearing, I argue that refugee applicants are required to meet a demand for narrativity and specific narrative forms in the presentation of their evidence, as well as to demonstrate a capacity to account for themselves in line with ‘stock’ narratives of refugeehood and asylum seeking. In the Australian and Canadian refugee hearings that form the book’s qualitative dataset, genre and storytelling operated as disciplining forms and the demand for narrative was critical to and implicated in the refugee-receiving state’s power to exclude. Further, these demands for narrative were made in the context of administrative oral hearings that, in their form and conduct, directly impeded a refugee applicant’s capacity to meet these narrative mandates. As such, refugee applicants were expected to provide evidence in conventional narrative forms. And yet, by virtue of the form and conduct of the hearing, they were prevented from doing so. To put this another way, in the chapters that follow, I argue that a refugee applicant’s presentation and explanation of evidence in a distinctly narrative form is a core aspect of the assessment of refugee credibility and acceptability; and that the RSD oral hearing, as the primary site where applicants must demonstrate this capacity, actively impedes a refugee’s ability to meet this demand. Finally, this frequently unmeetable demand for narrative, alongside its disruption and fragmentation during the oral hearing, is directly implicated in state practices of exclusion and deterrence of refugees seeking asylum within their territory.
The specific sites of the reception and testing of refugee testimony at the centre of the book are the closed oral hearing rooms of the Canadian IRB and the former Australian RRT. As such, the book is about individualised, onshore or inland administrative processes of refugee decision-making within the Refugee Convention-signatory states of Australia and Canada. This means it is about the testimony and judgment of the minority of asylum seekers who are able to access RSD processes at a time when the possibility of entering the walled and securitised territories of Refugee Convention-signatory states has become more and more remote, and for certain people, effectively impossible. The hearing rooms tucked away in inner-city buildings in Australia and Canada and one-on-one oral exchanges between decision-makers and refugee applicants may seem both inconsequential to and disconnected from a global context in which the militarisation and externalisation of borders, forcible ‘turn-backs’ of people seeking asylum on land and sea, and criminalisation and incarceration of those who do reach state territory, determine the reality of what we call ‘refugee protection’. However, as the book demonstrates, RSD and the crude processes for judging a refugee’s credibility that it encompasses, persist as a critical site of refugee inclusion and exclusion. Indeed, in addressing the oral hearing as a central and underexamined event within refugee law, the book sets global trends of diminished and fast-tracked processes of RSD against the critical role played by each refugee’s ability to narrate and account for themselves in an attempt to access protection. Moreover, it presents the primarily closed and deeply individual spaces of refugee assessment, and their role in constituting the acceptable (and unacceptable) refugee, as connected to refugee law’s gate-keeping and exclusionary functions.
My argument builds on the small but rich body of scholarship that has engaged with narrative and language within the law and politics of asylum-seeking and refugee status, often from within the fields of sociolinguistics, critical discourse analysis or literary studies rather than law.Footnote 2 Robert Barsky’s foundational work on refugee testimony, which applied both literary and discourse theory to transcripts of Canadian refugee hearings, demonstrated that refugee applicants must not only be refugees, but they must be able to present and construct themselves as refugees.Footnote 3 For Barsky, the refugee hearing is primarily a test of the claimant’s ability to construct an appropriate image of a ‘Convention refugee’ and to become a ‘productive other’ – in line with conceptions of a refugee set out within particular political and cultural discourses of the receiving state and of government decision-makers.Footnote 4 It is not the veracity of the claim that is tested within RSD procedures, but rather the claimant’s competency in meeting the requirements of the process and in performing the style of speech and argumentation that the process requires. Jan Blommaert identified the problem of ‘narrative inequality’ or alternatively what Katrijn Maryns and Blommaert call an applicant’s ‘narrative resources’ as shaping Belgian asylum determinations.Footnote 5 Blommaert argues that a complex set of discursive practices and language ideologies place unmeetable linguistic demands on asylum seekers, who are discredited for the use of disqualified or insufficiently narrative modes.Footnote 6 Blommaert suggests in turn, that narrative inequalities condition the distribution of social rights.Footnote 7 In line with this claim, I argue that such narrative inequalities (and narrative demands) within the RSD oral hearing find direct expression within existing credibility criteria, which absolutely ‘condition the distribution’ of access to asylum. Matthew Zagor’s engagement with narrative and identity in refugee law also highlights the imperative of refugee speech and stylised forms of testimony, observing that ‘the refugee has long been in a situation where protection depends upon the telling of one’s story. Whether she wants to or not, a refugee must speak; and she must speak in a legal context and, preferably, a legal idiom’.Footnote 8
This book insists that the RSD process requires far more of applicants than merely meeting the legal definition of a refugee. In so doing, it also aims to highlight the fact that we still have little sense of how refugees contend with these narrative demands during the oral hearing, or resist or challenge them. Indeed, as becomes apparent in the hearing excerpts, applicants with ‘narrative resources’ to deploy were at times steadfast and explicit in refusing decision-makers’ questions or re-narrations of their evidence. In these exchanges between applicants and decision-makers, the requirement for a kind of narrative competency was evident in the stock stories of ‘genuine’ asylum seeking against which applicant testimony was interrogated, but also moved beyond this. Applicants had to account for the form of their evidence. They were expected to be able to justify its narrative arc, the actions of various characters, the relationship between events and outcomes, and the details that they (as narrator) had included or excluded; and they were required to do so in the face of decision-makers’ subjective, unpredictable and at times idiosyncratic questioning. Indeed, refugee applicants must relate complex evidence of a life left behind, of persecution, departure and arrival, in the form of a story that presents events plotted in time, with explicable and linear causative links, and, most of all, that resolves in a decision to become a refugee – even where no such resolution exists.
The remainder of this introduction is divided into four sections. First, I introduce the book’s qualitative dataset and the sites of oral testimony it examines. Next, I provide my account of what we know about the immense failures and injustices of credibility assessment within RSD; I explain why compelling research on the dysfunction of credibility determination has resulted in so little change and how these insights shape the questions and findings in the rest of the book. I then establish the profoundly mediated, co-produced and constrained nature of what I imperfectly term ‘refugee testimony’ and present the book’s structure and chapter overview. Finally, I outline how the testimony of the refugee applicants who participated in this research will be presented throughout the book.
1.1 The Oral Hearing in Context
The book presents a detailed, qualitative analysis of fifteen refugee applicants’ oral hearings, which took place before the IRB in Canada and the RRT in Australia between 2012 and 2015.Footnote 9 Since the period in which the hearings and the qualitative aspects of this research took place, refugee law and policy in both jurisdictions have been anything but static. Notably in Australia this period has included reform to the administrative bodies charged with the assessment of protection claims. Indeed, in 2015, the RRT was amalgamated with the Administrative Appeals Tribunal (AAT), into a ‘super tribunal’ to deal with all Commonwealth matters of administrative review.Footnote 10 As a result, the RRT was replaced by the Migration and Refugee Division (MRD) of the AAT, albeit with minimal substantive change to the nature of administrative review provided within the new tribunal division or its fundamental operation. Then, as the manuscript of this book was being finalised, a new Labor Government in Australia announced the abolition of the AAT in its entirety, and plans for its replacement with a new administrative review body.Footnote 11 As I outline in Chapter 2, these changes were motivated by long-standing criticisms of the level of executive control over the Tribunal’s process for the selection of members and, in particular, direct appointments of members with connections to sitting governments in the absence of a transparent, merits-based process.
Alongside reforms to the administration of and institutions responsible for RSD in Australia, Global North Refugee Convention-signatory states continue to be ‘unwavering in their commitment’ to avoiding responsibility under international refugee law and to implementing novel and extreme modes of refugee deterrence and non-entrée policies.Footnote 12 In both Australia and Canada, deterrence policies have moved both outwards from territorial and maritime borders to extraterritorial sites of migration control, and inwards to encompass reforms to RSD processes, including, but not limited to: early and opaque ‘screening out’ of certain applicants before claims are made in full; the rapid acceleration of RSD application timelines for select applicants; limiting access to and/or narrowing the scope of administrative and judicial review of primary decisions; and the withdrawal of government-funded legal assistance.Footnote 13 Indeed, tracing amendments to RSD in both states reveals that the quality of refugee decision-making has been progressively diminished for specific groups of asylum seekers, singled out for unique forms of deterrence or exclusion.Footnote 14
Crucially for this project, though, in both Australia and Canada, the function, nature and conduct of the oral hearing – despite the reforms that have taken place around it – has remained remarkably fixed.Footnote 15 Moreover, the effect of these diverse reforms is that they have put even greater pressure on refugee testimony and its presentation during the first- or second-instance oral hearing, as vital to the success of a claim. In this way, where refugee applicants are granted access to an oral hearing – and this is not always the caseFootnote 16 – reforms diminishing the quality of RSD have been implemented ‘on both sides’ of oral hearings, in terms of shortened timelines in the lead up to the assessment of testimony, and the limiting of the avenues, scope and quality of review following its presentation. As such, the legal and procedural stakes of an applicant’s expression of their testimony have rarely been higher, at the same time as the injustices of giving and assessing refugee testimony, as charted in the following chapters, remain as intractable as ever.
The hearings in the book took place across four cities in Australia and Canada.Footnote 17 I accessed them through my in-person attendance at the hearing itself, or through the full audio recordings of a hearing, or both.Footnote 18 For each hearing included in the study, I also had access to the written decision and reasons. In Canada, the IRB is responsible for the first-instance determination of the claim. In Australia, the former RRT conducted de novo administrative review of an initial negative decision made by a delegate of the Australian Immigration Minister.Footnote 19 An oral hearing, with limited exceptions, is required before both the IRB and RRT.Footnote 20 Both bodies are required to determine refugee claims on the merits and in full, and in both cases a refugee applicant presents such testimony directly to a single administrative decision-maker.Footnote 21 The decision-maker directly questions and tests the applicant’s oral evidence and holds substantial discretion over precisely how the hearing is run and what aspects of the claim are discussed and for how long. Interpreters frequently mediate these exchanges.
An applicant’s lawyer or advocate may be present in both jurisdictions, but it is the decision-maker who questions the applicant in the first instance in Canada, and legal advocates in Australia have no right to question their clients during the hearing.Footnote 22 Lawyers are both physically and figuratively ‘to the side’ of the presentation of oral evidence in each jurisdiction. Although the Canadian and Australian hearings took place at different stages of RSD, both the former RRT and IRB constituted the last stage of decision-making where an applicant presents their claim in an oral hearing before a decision-maker empowered to make findings of both law and fact.Footnote 23 Both Australia and Canada have ratified and domestically enacted the key obligations under the Refugee Convention, and each has a semi-independent, administrative decision-making body for the purposes of determining refugee claims.
The book’s argument and findings are applicable to the assessment of refugee testimony in Global North refugee-receiving states where deterrence is a central aspect of the asylum regime and oral testimony is central to the RSD process. My analysis of the oral hearing in Australia and Canada raises questions that can be productively asked in other jurisdictions, particularly where the assessment of in-person oral testimony is governed by a version of the credibility criteria I describe below.Footnote 24 The book’s findings contribute to a growing but still limited empirical literature on conduct of refugee decision-making, in relation to which Nick Gill and Anthony Good observe that ‘it is remarkable that so little empirical research has been carried out into how RSD structures actually operate in practice’.Footnote 25 I agree. Despite the significant variance in the formal design and conduct of administrative RSD processes,Footnote 26 my arguments in relation to the dysfunction of credibility determinations within RSD and the assessment of oral testimony provide insight and lines of inquiry for all states with individualised, testimony-driven processes for RSD. Such research provides a much-needed ‘antidote to the emphasis on either [only] legal doctrine or outcome’ in studies of refugee decision-making.Footnote 27 While my data spans two jurisdictions, I do not adopt a formally comparative methodology. Instead, the book demonstrates the demand for narrative across comparable refugee-receiving jurisdictions, where the presentation of oral testimony and credibility assessment remain core elements of the determination process, with attention to relevant differences in law, practice and procedure in both jurisdictions.
The dataset of countless pages of transcripts, observational notes, reasons and audio files provides a detailed picture of the presentation and reception of oral evidence in the fifteen RSD hearings that I observed. I address the multiple barriers to accessing RSD and oral hearings or interviews in Chapter 1, which also explains the basis upon which particular hearings were included in the research, and how refugee participants were recruited. The scope and limits of the dataset are, in part, a consequence of the enduring difficulty of accessing executive and administrative refugee status decision-making in jurisdictions where RSD is not undertaken in open courts or tribunals, and only a minority of decisions are published. I treat the hearings, both individually and collectively, as a rich source of qualitative data and use close reading and grounded theory as the basis for each chapter’s arguments and thematic analysis.Footnote 28 Indeed, my focus on RRT and IRB oral hearings locates the project within a body of important work exploring the day-to-day operation and outcomes of administrative refugee decision-making despite barriers to access. The challenges of accessing lower-level decisions, let alone the hearings in full, unites much of the work in this field, with valuable recent exceptions, some of which highlight the comparatively open nature of hearings within European Union jurisdictions.Footnote 29 Given the limited amount of work that has accessed or assessed the oral hearing and its conduct, the dataset and hearings provide a valuable source of data and insight.
Existing research on credibility assessment, alongside establishing the unique factors that render RSD as the ‘most intensely narrative mode of legal adjudication’,Footnote 30 are logical points of departure for the remainder of the book. As such, in the next section, I explain the bases, profound failings and gate-keeping functions of credibility assessment and set these against one of the book’s unifying concerns: that credibility assessment and the appraisal of refugee testimony is ‘often the single most important step’ in the determination of refugee status.Footnote 31
1.2 Refugee Testimony and the Intractable Problem(s) of Credibility Assessment
Scholarship addressing credibility assessment is best described as a sustained, multi-jurisdictional and at times exasperated critique of existing standards and practice.Footnote 32 Here, I take stock of what scholars across disciplines have established about credibility assessment and the implications of this research for the immense burden placed on refugee testimony within RSD. I structure existing critiques of credibility assessment into three overlapping strands, each of which is implicated in the demand for narrative required of refugee applicants.
1.2.1 The Credibility Criteria as False Proxies for Truth
The Refugee Convention defines a refugee as a person who holds a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ in their country of origin and who is ‘unable, or owing to such fear … unwilling to avail himself [sic] of the protection of that country’.Footnote 33 An applicant’s claim may fail because their evidence fails to meet one or more aspects of this definition. However, the determination of a claim to protection may also be based, in part or in full, on a decision-maker’s finding that the person seeking protection cannot be believed. To put this another way, a finding that the evidence presented – or the person presenting it – is not credible (or, as is often the case, some slippage between the two). In determining this critical question of a refugee applicant’s credibility, decision-makers must generally decide whether the applicant’s account of their evidence meets the criteria of coherence, plausibility and consistency.Footnote 34 The controversial criterion of an applicant’s demeanour also endures as a credibility standard in Australia and Canada, albeit one subject to repeated judicial caution as to its use and reliability.Footnote 35 These criteria are drawn from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, which sets out that an applicant’s statements ‘must be coherent and plausible, and must not run counter to generally known facts’.Footnote 36 The Handbook is a UNHCR document, first produced in 1979 in response to requests from Convention-signatory countries for guidance on RSD procedures, and many Convention signatories have adopted some version of the criteria of consistency, coherence and plausibility as determinants of credibility.Footnote 37 This is true in Australia and Canada, where the criteria of consistency, plausibility and coherence are used to determine credibility, as set out within credibility guidelines and case law.Footnote 38
In the face of the widespread adoption of these standards, the most fundamental and uncontroversial knowledge about how autobiographical memory functions calls into question consistency, coherence and plausibility as a basis for assessing the credibility of testimony.Footnote 39 That is to say, the criteria used to test refugee applicants’ credibility are at complete odds with existing understandings of the relationship between first person testimony, autobiographical memory and how memory operates.Footnote 40 As a result, refugee law’s indicia of credibility place unreasonable expectations on refugees’ accounts of their past and, to put it simply, are absurd proxies for truth. Research bringing knowledge from the disciplines of psychology and psychiatry to bear on RSD processes has repeatedly critiqued and discredited the foundational, structuring assumptions and standards of credibility assessment.Footnote 41 Such research ‘has provided compelling evidence to suggest that autobiographical remembering is not an exact replaying of an event’.Footnote 42 Moreover, this work examines and categorically rejects ‘the assumption that people can reliably, consistently and accurately recall autobiographical memories’ and that applicants who give discrepant or inconsistent accounts of their experiences are necessarily fabricating evidence.Footnote 43
Notably, the requirement for consistency refers not just to internal consistency across countless retellings, translations and explanations, as well as with the events as they took place. It also assesses the ‘external’ consistency of an applicant’s account, against facts about life in the applicant’s home country and available ‘country of origin information’ (COI) about the conditions or circumstances that the applicant has fled. This brings not only the incomplete and uneven sources of ‘accepted’ COI into the frame, but also decision-makers’ subsequent interpretation of them and their own pre-existing assumptions about life and culture in the applicant’s country. Gibb and Good drily note that the frequent characterisation of COI as ‘objective evidence’ of external consistency is ‘a formulation that seems to ignore the contextualization and interpretation to which all such knowledge is subject’.Footnote 44
The dysfunction of the credibility criteria is exacerbated further still by the fact that refugee testimony is often, and often primarily, about traumatic events, violence or atrocity.Footnote 45 As Shuman and Bohmer write, trauma leaves gaps.Footnote 46 It disrupts the relationship between fact, memory and knowledge.Footnote 47 It distorts time and experience, in both the past and the present, and as some have argued, may exceed language itself and what is sayable.Footnote 48 Theories of traumatic memory suggest that the recall of traumatic events may have ‘little verbal narrative to tie them together’; that they are ‘not marked as being in the past’; and/or that they ‘cannot be brought to mind by conscious attempts to recall’.Footnote 49 Studies of refugee claims made on the basis of gendered harms and sexuality, in particular, have demonstrated the exceptional injustice of the credibility criteria of coherence and consistency in the context of shame, trauma and the prevalence of delayed or difficult disclosure associated with such harms.Footnote 50
These expectations of refugee testimony persist despite the fact that official RSD guidelines frequently and openly acknowledge that refugee testimony and in particular traumatic testimony cannot be assessed against the usual indicia of credibility,Footnote 51 precisely because it is marked by the absence of ‘coherence, structure, meaning, comprehensibility’.Footnote 52 Indeed the Beyond Proof: Credibility Assessment in EU Asylum Systems report – an immense, multi-agency report aimed at improving credibility assessment within the European Union – attested to ongoing and urgent concerns about the quality and basis of credibility assessment.Footnote 53 Domestic, regional and international guidelines on credibility, gender and sexuality, as well as the UNHCR Handbook itself, highlight – at times with nuance and sensitivity – the difficulties faced by applicants in formulating and then presenting autobiographical testimony. However, credibility assessment must be understood as a political rather than procedural problem. I build this argument below, but the need to analyse RSD as steadfastly part of regimes of refugee deterrence is evident in the fact that existing credibility standards persist and that they do so in the face of extensive, intelligent and practical suggestions for reform.Footnote 54 Even where existing policy and guidelines clearly state that expectations of coherence, consistency and plausibility should be modified, reformulated or abandoned altogether for particular types of claims or claimants, the normative framework remains central to the demands placed on oral testimony.
1.2.2 RSD Cultures of Suspicion and the Politics of Refugee Deterrence
Domestic refugee laws, policies and politics in Global North states are designed to achieve the deterrence of ‘onshore’ refugees, and failing that, their punishment. The endurance of discredited credibility criteria must be understood in this context. Researchers across jurisdictions have described RSD, and the determination of an applicant’s credibility within it, as characterised by a ‘culture of disbelief’,Footnote 55 ‘a culture of suspicion’,Footnote 56 ‘adversarial posturing’Footnote 57 and a ‘presumptive scepticism’.Footnote 58 These descriptions are so common they have attained a sound bite quality within the field.Footnote 59 Their persistence across time and jurisdiction reflect the connection between refugee decision-making and the politics and practical consequences of state policies orientated towards refugee exclusion. Which is to say, states’ systematic ‘illegalization’ of onshore refugees is directly implicated in the suspicion and doubt that structures credibility assessment and the judgment of refugee testimony.Footnote 60 Refugees who dare to cross a border without authorisation to seek protection are not only cast as ‘illegal’ and as ‘security threats’ through the racialised securitisation of migration, but totalised as ‘illegals’.Footnote 61 What is at times lost in the legal literature on credibility is that it is only those who surmount state-imposed barriers and ‘unlawfully’ cross militarised borders – that is, those already cast as bogus – who ultimately appear before RSD bodies in order to be judged. Making this critical connection between ever-expanding global deterrence policies and the judgment of individual applicants within RSD, Michael Kagan writes that ‘[o]ne by one and case by case, asylum seekers must navigate the tension between refugee protection and migration control as they struggle to be deemed “credible”’.Footnote 62
The framing and explanation of a politics of doubt and distrust within RSD can be widened further still and connected to a broader, post-colonial literature explaining the figure of the ‘illegitimate’, racialised and fake refugee. Sherene Razack argues that settler colonial states’ narration of the nation as ‘besieged’ by bogus asylum seekers conceals a racist logic. This ‘simple’ logic casts refugees arriving without permission (i.e., those who rely on onshore RSD) as unidentifiable, racialised masses betraying the state’s trust, and seeking access to entitlements which belong to white, settler citizens.Footnote 63 The state, in such circumstances, is permitted to defend itself from exploitation by illegitimate, ‘undocumented’ masses, which in turn relies on a ‘national story of white innocence and the duplicity and cunning of people of colour’.Footnote 64 As against the produced, Eurocentric image of a ‘normal’ asylum seeker – ‘white, male and anti-communist’ – post–Cold War asylum seekers are characterised as ‘new’, mass arrivals, abusing Western hospitality and without genuine claims to protection.Footnote 65
These narratives of race and nationhood enter the hearing room and highly individualised processes of credibility assessment because, as I am attempting to underline, the refugee applicant giving testimony who is judged as dubious or deceitful is simultaneously the queue jumper, the bogus refugee and the economic migrant who dared to move across national borders and exploit the sovereign exception embedded within the Refugee Convention.Footnote 66 Bridging cultures of disbelief within RSD and states’ physical and political acts of refugee exclusion (or expulsion) is critical to the assessment of the politics of refugee testimony during the oral hearing. To ignore such theorisation involves imagining the doubt that has defined credibility assessment as materialising out of thin air, or assuming that well-designed procedural reform could solve ‘the credibility problem’, which it certainly has not to date – despite the best efforts of exceptional thinkers and experts on the topic.Footnote 67
Decision-making ‘cultures of disbelief’ or ‘refusal mindsets’ would present a problem in any adjudicative context. For refugee applicants, though, it is critical to note from the outset that these predispositions fly in the face of a core, structuring principle of RSD: namely that refugee applicants should be given the benefit of the doubt.Footnote 68 The imperative of affording refugee applicants this benefit is precisely because of the singular context of refugee decision-making, whereby a life or death decision must frequently be made on the strength of an applicant’s testimony alone.Footnote 69 Instead of the benefit of the doubt, doubt itself shapes the reception of refugee narrative. Refugee applicants in turn must actively manage and negotiate the burden of suspicion during the hearing, a challenge that is exacerbated by the conduct of the hearing that I describe in the book and the elusive, unreachable ‘standards’ of credibility assessment that they are required to fulfil.Footnote 70
1.2.3 Gender, Race, Culture and Decision-Makers’ Narrative Worlds
The credibility literature has plainly and repeatedly demonstrated that decision-makers bring their culturally specific, raced and gendered understandings of the world around them to the question of who refugees are, how they should behave and what amounts to credible testimony. While questions of decision-maker subjectivity and standpoint are nothing new to studies of fact-finding and judgment, the vast discretion afforded to administrative refugee decision-makers renders the regulation of their discretion and subjectivity a central theme in evaluating both RSD and credibility determinations. There are of course limits on how decision-makers apply their worldviews when determining the credibility of a refugee’s evidence.Footnote 71 However, as Hilary Evans Cameron has shown, the challenges posed by decision-maker subjectivity and predisposition – and the challenges of fact-finding across culture, language and time – are exacerbated by the lack of a clear legal or normative framework for basic fact-finding within Canadian RSD and beyond.Footnote 72
Studying RSD generally and determinations of credibility specifically, then, involves a study of refugee decision-makers just as much as an inquiry into burdens and standards of proof or the jurisprudence of credibility assessment. Large, data-driven, quantitative studies of refugee status assessments have demonstrated the central role played by individual decision-makers in determining RSD outcomes in multiple jurisdictions.Footnote 73 These studies have reinforced the role of the decision-maker through their analysis of vast disparities in decision-maker recognition rates, including evidence of decision-makers with comparable caseloads having overall rejection rates ranging from 95 per cent (for one decision-maker) down to 5 per cent (for another).Footnote 74 Statistical variance across comparable caseloads has led to analogies of RSD with games of pure chance – a spin of the roulette wheel – based on the assigned decision-maker. This is the case even though, as others have argued, such quantitative findings regarding the impact of individual decision-makers must be read alongside other factors, including the presence and quality of legal counsel and advice.Footnote 75
One of the insights of work addressing the highly subjective and even hunch-driven nature of credibility assessmentFootnote 76 is that refugee decision-makers do not merely decide if an applicant’s evidence is credible or meets the requirements of the Refugee Convention’s definition of a refugee. Applicants must also convince decision-makers that they authentically fit the social and political category of ‘refugee’. Razack, Makua Matua and Susan Masarrat Akram are among a number of scholars who have compellingly argued that presumptions about who or what is ‘credible’ and plausible within RSD frequently turn on orientalist and racialised characterisations of asylum seekers – of their countries of origin as barbaric; the liberal nation-state as saviour; and refugees as ‘victims’ in need not only of protection but of saving.Footnote 77 Omid Tofighian and Behrouz Boochani draw a direct connection between the exclusionary ideologies that hold up colonial border regimes and assertions of sovereignty, and the epistemic basis for contradictory and dehumanising tropes associated with refugees and displaced peoples. These include the ‘desperate supplicant’; the ‘trickster’; the ‘tragic and miserable victim’; and the ‘struggling [and battling] overcomer’.Footnote 78 These characterisations and expectations have been cast as a measure of one’s ‘refugeeness’, an awkward term which in its capaciousness captures the demanding, contradictory and regularly dehumanising ways in which Global North states judge those seeking access to the category of ‘refugee’, and determine how ‘acceptable’ refugees ought to behave.Footnote 79 This has significant implications for exploring the place of narrative forms and ‘stock’ refugee stories in RSD. Refugees must adopt a form of passive victimhood and a desire to be saved from the indignity of illiberal and non-white cultures and beliefs;Footnote 80 however, as I seek to show, they must equally display agency, self-possession and a clear will towards liberal freedom, a theme which shapes Chapters 3 and 6.Footnote 81 The refugee story must conform with cognisable and plausible narratives of refugeehood, but at the same time it must not be too ‘scripted, rehearsed or borrowed’ such that is deemed too generic and therefore also fabricated.Footnote 82 So while the refugee applicant’s testimony must be plausible, coherent and consistent as a refugee story, there is no one model refugee story, or one fixed stereotype, with which a refugee must conform.Footnote 83
As has been so frequently observed, there is no absolute requirement that a refugee be credible to be granted asylum.Footnote 84 And yet, incredible refugees are rarely granted refugee status. Further, despite clear guidance that coherence and consistency are incompatible with autobiographical memory as such, and absurd standards by which to judge attempts to disclose and account for traumatic events, the standards persist. Each strand of the problem of credibility charted here is entwined with the burden of speech and demand for narrativity faced by refugees during the oral hearing, and these critiques, which fundamentally reject the credibility of credibility assessment, move in and out of the foreground in each of the book’s chapters.Footnote 85
1.3 The Impossibility of Refugee Testimony in RSD: Law, Lawyers, Interpreters
Like so much scholarship addressing refugee decision-making and credibility assessment, in the book I refer to ‘refugee testimony’ to describe the evidence presented by refugees as the basis for a protection claim. However, the testimony that I describe and analyse is not purely the ‘refugee’s testimony’. Instead, it is speech co-produced, shaped and constrained by the socio-legal requirements of the RSD process and the multiple actors involved in its production in Australia and Canada. The evidence referred to as ‘refugee testimony’ is what Marie Jacobs and Katrijn Maryns carefully describe as ‘co-constructed’ and continuously mediated by multiple actors within the RSD process.Footnote 86 The cast of people co-producing refugee testimony within RSD include, at least, interpreters, decision-makers and lawyers involved in preparing a claim and advising an applicant. As Laurie Berg and Jenni Millbank put it, ‘[h]ow the asylum claim is articulated depends on the relational interaction between advocate or decision-maker and asylum seeker at every stage of the process’.Footnote 87 Barsky even notes the (former) role of hearing stenographers and the conditions of their work in the production of testimony in Canada, which was performed under subcontract, paid as ‘piece work’ and transcribed under difficult conditions, with varying degrees of accuracy.Footnote 88 The usually imperceptible and unacknowledged role that RSD decision-makers, in particular, play in shaping the oral testimony attributed to applicants is evident throughout the book. Laura Smith-Khan explains the problem with assigning sole authorship of texts produced in the application process ‘discursively … to asylum seekers’; namely that they are held responsible for and judged as credible against communication that is produced by multiple actors, the content of which is simply not within their control.Footnote 89 This is a theme, finding and problem that comes to the fore in the analysis that follows.
This, in turn, highlights a limitation of this research: the hearing-based data cannot account for or evaluate the influence of other actors – and significantly of lawyers or interpreters – in shaping the testimony available for assessment. In my dataset, it is only when lawyers actively intervene in applicants’ oral testimony or when there is an acknowledged issue with linguistic interpretation that these actors come into the frame of analysis. Here, research that has examined the fallibility of processes of linguistic and cultural translation (among lawyers, expert witnesses and interpreters alike) provides crucial context for the testimony represented here.Footnote 90 As Jacobs and Maryns have shown, lawyers, advocates and other actors may shape evidence through sincere misunderstanding or misinterpretation of testimony, but they may equally actively impose their own ideologies to reorient refugee narrative, imposing perceived markers of credibility or ‘institutionally accepted forms of narration’.Footnote 91 My research, however, only assesses testimony in the form presented during the oral hearing, where it is reshaped by decision-makers and interpreters once again – but attributed, completely and finally, to the refugee applicant.
Finally, while a core aim of the book is to investigate how the event of the refugee oral hearing is conducted in Australia and Canada, it is not an institutional or ethnographic study of the decision-making bodies responsible for RSD in either jurisdiction. Ethno-graphic or bureaucratic studies of the ‘asylum field’Footnote 92 stretch far beyond the study of a sample of refugee hearings or even of one decision-making body such as the RRT, AAT or IRB. Rather, such work reads asylum decision-making in the context of multiple, overlapping institutions and the tensions between them.Footnote 93 This scholarship has consistently found that refugee decision-makers operate in extremely high-pressure environments and that they regularly face immense time constraints, resource challenges and backlogs. This is certainly the case in Australia, where as noted, the AAT itself is being disbanded and redesigned as this book goes to print, in part because of the intractable backlog of matters before it. Angus Grant and Sean Rehaag note that RSD in Canada involves a high-volume, high-stakes caseload and constant pressure to decide matters quickly.Footnote 94 Such pressures are connected to insufficient state funding alongside state imperatives to speed up asylum determinations – but equally, as I have argued, connected to rhetoric about dealing ‘efficiently’ with ‘bogus’ or ‘opportunistic’ claimants besieging (to use Razack’s language) RSD mechanisms.Footnote 95
In reading the rest of this book, though, constant calls from Global North states for more efficient and accelerated RSD will strike readers as at odds with the at times lengthy and painstakingly detailed exchanges led by decision-makers during hearings and circuitous discussions of aspects of evidence that seem ancillary to the refugee definition. The set of hearings that I present take place within, but cannot be fully accounted for by, high-level analysis of the broader ‘asylum field’ or governance of RSD as such. As I hope becomes apparent, reading the hearings in full, as complete qualitative texts, is the only way to think through and analyse the often-singular course of each hearing; the intimate and particular back-and-forth exchanges between refugees and decision-makers; and the demands made in real-time of refugee applicants and their testimony.
1.4 Judging Refugees: Chapter Overview
The chapters that follow integrate a theoretical and conceptual argument about the function of narrative within refugee decision-making and Global North states’ demands of ‘acceptable’ refugees, with a detailed and intensely specific empirical analysis of how such demands manifested within fifteen refugee hearings. Following this introduction (Chapter 1), Chapter 2 presents the book’s argument in favour of a critical politics of narrative. Specifically, it engages with the theoretical insights of law and literature, and law and ‘outsider storytelling’ scholarship as articulated by critical race, Indigenous and feminist law scholars, to explain how narrative and narrative genres are implicated in RSD and the politics of whom states cast as the ‘credible’ refugee. It also presents a working definition of narrative and of the ‘model’ Anglo-European narrative form, which I argue shapes the reception and assessment of testimony. In making a case for the use of narrative methods in evaluating refugee decision-making, the chapter critiques aspects of the ‘law and literature’ project that present storytelling and narratives either as distinct from legal discourse or as necessarily disruptive of law’s authority.
Chapter 3 addresses the history of the refugee oral hearing in Australia and Canada. It explains how and why the oral hearing became a central event within RSD processes in each jurisdiction and traces the role of refugee testimony up until the introduction of a semi-independent administrative process for RSD and into the present day. In setting the scene for my analysis of hearings before the IRB and former RRT, the chapter demonstrates that the introduction of an oral hearing before a semi-independent executive decision-maker in both jurisdictions represented a shift towards enhanced administrative rights and justice for onshore refugee arrivals. However, the chapter also establishes that formal RSD procedures were introduced as both states became increasingly focused on the deterrence of refugee arrivals and limiting onshore claimants. In both jurisdictions the same legislation that introduced statutory RSD procedures also implemented harsh new modes of refugee deterrence. Particularly in Australia, the hearing itself was implemented alongside mandatory detention and presented quite explicitly as a means to both insulate executive decision-making from judicial interference and identify and exclude ‘bogus’ claimants.
Chapters 4–7 form the heart of the book. Each chapter is dedicated to putting narrative to work in analysing the assessment of refugee testimony in the oral hearings and dataset. Chapter 4 argues that a distinct ‘stock story’ of who refugees are and how they behave featured throughout the observed hearings. This story, which I name the ‘stock narrative of becoming a refugee’, is one of refugee departure, flight and arrival and exemplifies the elements of model Anglo-European narrative forms presented in Chapter 2. Implicitly or explicitly, in form and content, the refugee stock story formed an all-too-neat normative standard against which refugee applicants’ evidence – and credibility – was tested and judged.
Chapter 5 shifts from examining the demand for a particular refugee story during the hearings, to considering how narratives were used to test oral evidence. It presents a key finding from the hearings: that decision-makers often engaged in ‘narrative contests’ with the applicant, presenting their own counter-narratives of how events should have taken place if the story presented were to meet the credibility standard of plausibility. The chapter details how the criterion of ‘plausibility’ forges a direct link between credibility assessment and the narrative form, as well as the minimal law or policy that governs the testing of oral evidence during the hearing in Australia and Canada. In the chapter, a laptop, an injured shoulder and an escape from state custody all become subjects of and opportunities for narrative contestation. When engaging in these narrative contests, the narrative expectations of decision-makers were often deeply subjective, idiosyncratic and unpredictable. Decision-maker ‘questioning’ went beyond asking refugee applicants for further information or explanation. Instead, the hearings involved decision-makers presenting alternative, hypothetical accounts of events that would have taken place, if the story (and by implication the applicant) were credible. This chapter also demonstrates that in navigating these exchanges, certain applicants displayed high levels of agency and resistance vis-à-vis decision-makers’ own narrative assumptions and their vast power to direct the applicant’s evidence and the hearing.
These connected themes – of decision-makers’ discretionary control over the hearing and applicants’ attempts to control their evidence – are addressed in detail in Chapter 6, which takes up narrative theory’s attention to the conditions for narration, audience and context. In this chapter, I argue that applicants’ testimony was frequently and severely fragmented due to the structure and conduct of the hearing, the control exercised by decision-makers, and the manner and style of their questioning. The process of narrative fragmentation leads to the finding that, in the majority of hearings observed, the applicant was both expected to present testimony in a narrative form and then actively impeded from doing so. Further, where applicants displayed confidence and an ability to present evidence in a narrative form – to ‘argue and justify’Footnote 96 their own story – this was done in spite of, rather than because of, the structure and setting of the observed hearings.
Chapter 7 returns to an argument articulated in Chapter 1, namely that interrogating narratives within the hearing in terms of their (overlapping) genres, and with attention to implicit and explicit generic aspects of decision-makers’ appraisal of testimony, provides further insight into the ‘authentic’ refugee whom state authorities are willing to accept. The chapter takes up Joseph Slaughter’s engagement with the genre of human rights discourse, and his argument that we can understand the conception of human personhood evident within human rights discourse through the genre and plot of the Bildungsroman (the realist novel).Footnote 97 The chapter shows that Slaughter’s account of the realist novel’s plot trajectory, involving ‘the movement of the subject from pure subjection to self-regulation’ is evident in the testimonial forms required of refugee applicants.Footnote 98 Like the protagonist of the classic Bildungsroman and human rights narratives, refugee applicants were expected to narrate a linear progression from ‘outsider’ status towards full civic incorporation through the seeking of protection and the resolution of refugee status.Footnote 99 In this generic mode, the ‘good’ refugee’s story moves steadily towards a resolution that is the seeking of refugee status and thereby, the realisation of a liberal personhood, marked by self-possession and autonomy, and readiness to become a refugee-citizen.Footnote 100 Finally, following what Agnes Woolley has described as ‘the entanglement of literary and legal technologies in the asylum decision-making process’, the conclusion (Chapter 8) returns to the book’s central questions and arguments.Footnote 101 It considers the implications of the book’s findings for the conduct and place of oral hearings within RSD, and the impossibility of a just assessment of refugee applicants’ oral testimony against the current credibility criteria and the direct link between such criteria and a global politics of refugee deterrence, punishment and exclusion.
Presenting Refugee Testimony and the Oral Hearings
Every hearing included in my dataset involved an interpreter, even though at times the applicant spoke in the language of the Board or Tribunal (English or French). In the hearing excerpts reproduced here, I have edited out all speech not conducted in English but attempted to preserve the presence of the interpreter by indicating where the applicant is speaking directly and where the interpreter is speaking on behalf of the applicant. In each excerpt, I use the term ‘Applicant’ to denote where the interpreter is speaking for the applicant; ‘Applicant in person’ to denote where the applicant is speaking directly; and ‘Interpreter’ where the interpreter is speaking directly. The terms ‘member’ and ‘advocate’ are used in their ordinary sense.
In this research, I present segments from individual hearings after contextualising them in relation to the applicant’s claim, and where relevant, in relation to the conduct and sequence of the hearing. I note that the excerpts, in some instances, are quite long. They are often more than mere snippets and extend beyond a couple of lines of transcript. I have included these longer excerpts to convey a sense of the hearings and the dialogue within them – as messy or confusing as these exchanges at times were – and to preserve as much as possible of the affect and tone of the exchanges.Footnote 102 Of course, ‘preserving’ the hearing is not possible especially given the use of excerpts, the move from speech to text, and in absence of the interpreter’s non-English translations. Hopefully, though, in the longer exchanges something more than the mere text is apparent, and the data adds value to the existing archive of published decisions, hearing summaries and brief excerpts from hearing transcripts. While some written decisions in Canada and Australia include short, verbatim excerpts from the hearings, they predominantly include the decision-maker’s highly condensed summary of evidence, which in turn becomes the official and only record of the applicant’s testimony and is yet another example of the decision-maker’s role in co-producing testimony that is finally attributed to the applicant.
Finally, in writing on the law of RSD, and state-based procedures for judging refugee lives and entitlements, it is difficult to escape state-centric language and terminology. I primarily refer to the people included in this study as ‘refugee applicants’ because of my narrow focus on their interface with institutional processes for RSD and the domestic and international law that governs these procedures. At times I refer to ‘irregular’ or ‘undocumented’ migrants, but do so when explicitly referring to or analysing state-centric categorisations of people who seek to cross borders. I use the modifier ‘onshore’ to refer to all refugee applicant participants in my research. In Canada, those who seek status within Canadian territory are often called ‘inland’ (or sometimes ‘point of entry’) claimants. In Australia, they are called onshore applicants. I use the Australian terminology for the sake of consistency and clarity throughout the book. An appendix outlining the fundamental elements of each claim, including the applicant’s country of origin, gender, alleged grounds of persecution and the hearing outcome is included at the end of the book.
