How we decide if asylum seekers lie

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In the five years I worked in refugee law, some of the most common and complicated legal challenges I encountered were questions regarding the 'truthfulness' or 'credibility' of an asylum seeker's claims. Despite examining the same evidence, different decision-makers can draw different conclusions about whether an asylum seeker is telling the truth.

Protestors against refugee policy on June 19, 2016 in Sydney, Australia. The rally was organised as a show of public support for the closure the Manus Island and Nauru detention centres, and the safe resettlement of detained refugees in Australia. Refugee Week runs from 19 to 25 June. (Photo by Brook Mitchell/Getty Images)Yet when determining whether or not an asylum seeker is a refugee — a process called 'refugee status determination', or 'RSD' — these subjective findings of credibility are pivotal. They can make the difference between a person being granted asylum or being turned away.

There's an old cliché in refugee law that refugees don't come with a note from their dictator. Asylum seekers don't carry indisputable evidence setting out precisely who they are, what has happened to them and why they fear harm. They will rarely have been the subject of press reports. Their personal experiences may not have been documented. And any witnesses to what they have lived through may be unwilling or unable to testify on their behalf.

Even information that is available, like information about the asylum seeker's country of origin, has its limits. Country information, or even information about the group, sect or party to which an asylum seeker belongs, will usually be in very general terms. It will not be sufficiently specific or detailed to confirm the experiences of any single individual. These challenges become even greater when an asylum seeker makes claims not just about what they have done, but about who they are and what they believe: their religion, their sexuality, their political beliefs.

When governments or the UNHCR carry out RSD, they hence make decisions with extraordinary consequences for the asylum seeker on the basis of very limited information about that person.

In practice, decisions about whether an asylum seeker is telling the truth are mostly made on the basis of the asylum seeker's own testimony. Decision-makers question asylum seekers about their lives and decide whether the answers seem 'credible'.

These decisions are very difficult. The techniques and presumptions we use in other legal proceedings, or in our daily lives, to decide if someone is telling the truth are often uniquely unsuited to RSD.

 

"Plausibility is not static across all cultures and all times. What seems absurd to a decision-maker in an air-conditioned Sydney office may bear no relation to lived experiences of warfare, captivity and abuse."

 

In other contexts we might look to consistency to decide whether someone is telling the truth. This presumption is often used in RSD. Decision-makers may suggest that an asylum seeker's story is fabricated because its details have shifted when told at different times, or because it was not presented at the first possible opportunity.

However, an asylum seeker's narratives may vary due to differences in translation or in the exact questions asked. Sometimes accounts will differ because the asylum seeker is being asked to recall experiences of torture and trauma — memories that are difficult to recall and even more difficult to recount.

And sometimes, especially in matters of religion or sexuality, claims are presented late or in a fragmented form due to the lasting effects of shame and stigma. These may be things the asylum seeker has never told anyone, and must battle a lifetime of repression to reveal.

In other contexts we might also look to plausibility. Does this seem like it could really occur, or does it sound like some concocted fantasy? Could, for example, this asylum seeker really have escaped their captivity, or run across open ground fleeing bullets? Or is the asylum seeker's story just some fabulist playing at being John Wick?

But 'plausibility' is not static across all cultures and all times. What seems absurd or implausible to a decision-maker in an air-conditioned Sydney office may bear no relation to lived experiences of warfare, captivity and abuse.

And just because an event seems 'unlikely' or even lucky, does not mean that it never occurred. Even (or especially) in dictatorships or war zones, people still act unpredictably — they may be kind, merciful, cruel or capricious. 'Plausibility' analysis cannot be used to assume that people only act in the most predictable, utilitarian ways.

There are no easy answers. But these difficult decisions ultimately need to be resolved through empathy.

Asylum claims call for scrutiny, but not cynicism or instinctive distrust. They call for decision-makers and lawyers alike to understand why asylum seekers speak as they do and present claims as they have. Claims need to be understood as part of a broader context, which may differ entirely from that of the decision-maker. Where asylum seekers lie, it needs to be understood why they have lied: self-advantage, shame, stigma or fear? A lie is not evidence by itself that a person does not truly fear harm.

The stakes are too high in RSD for lazy decisions or unfounded assumptions. A decision-maker can only assess whether or not an asylum seeker is telling the truth by first and foremost seeing the asylum seeker as a human being.

 

 

Douglas McDonald-NormanDouglas McDonald-Norman previously worked as a researcher and solicitor representing asylum seekers. He is grateful to Amanda Yeo for her comments on this article. Follow him on Twitter at @dougmcdnor

 

Main image: Protestors against refugee policy on June 19, 2016 in Sydney, Australia. (Photo by Brook Mitchell/Getty Images)

Topic tags: Douglas McDonald-Norman, refugees, asylum seekers

 

 

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The author clearly explains how the individual RSD assessments are a fraught process, but why is it the default framework? Certainly a process of separating valid from invalid applicants is needed to keep public support from collapsing as it has in Europe. But in their recent book "Refuge - transforming a broken refugee system", A Betts and P Collier argue that one of the many reasons why the Refugee Convention is no longer fit for purpose is because most refugees are fleeing violent regions, not the RC's 5 types of "persecution" of targeted individuals. The latter was relevant to its European, Cold War origins but not to those fleeing failed states or civil war, whose claims apparently need to be re-worked to fit. The ethical duty to rescue people in danger is universal and sacrosanct, but now at risk in Europe because its leaders couldn't deal credibly with a manageable situation (1 million refugees seeking harbor in a 500m population) and avoid a backlash. This book has powerful analysis and prescriptions of how to move forward, and I hope many advocates will read it and make their comments.
Kevin Bain | 14 September 2018


I think we also need to acknowledge that some of our politicians tell lies about asylum seekers and even demonise them for political purposes. Remember the lie relating to asylum seekers throwing their children overboard. Remember the lie about asylum seekers being referred to as 'illegal', when it is not illegal to seek asylum. And then there's the cruelty of keeping asylum in off-shore hell-holes where depression and self harm are the norm, and where guards carry a knife to cut down asylum seekers who try to hang themselves.
Grant Allen | 14 September 2018


Thanks for this article. It shows that, under the veil of client confidentiality, anonymous (to the public) immigration officials are practising the art rather than the science of determining who is a valid asylum seeker. Thus, it may be that we are not accepting enough asylum seekers or we are accepting too many. Confidence in the skill of the artist official to ferret out the truth is greater when the applicant has already been languishing in a camp, and less so when the applicant has taken it into his own hands to contrive a means to get here.
Roy Chen Yee | 15 September 2018


We are inclined to be righteously judgmental about applicants for asylym "telling lies". Wouldn't we all lie if it meant saving our children from suffering and misery? Telling lies to attain or remain in power is another thing altogether. As far as refugees are concerned why don't we give them the benefit if the doubt instead of trying to trick them up?
Jo Mercer | 17 September 2018


I think Grant Allen has hit the nail on the head. Our politicians do lie and are totally self serving. Home Affairs is in disarray and has been for years. Both sides of politics have attempted to bury the problem on Mannus and Nauru and pay off the Indonesians to help stop the boats with tied aid money. Our generosity as a nation to welcome asylum seekers is woefully inadequate compared to Europe's response. Australia's response is to categorise the asylum seekers as criminals or extremists and hang the expense of jailing them offshore with cash strapped Pacific neighbours.
Frank Armstrong | 17 September 2018


All resettlement countries that showed liberal attitudes to asylum seekers have revoked, amended, withdrawn or adapted their policies. Many, like Australia, are establishing parallel policies to avoid their responsibilities under UN conventions. If we are to reframe this debate to ensure a generous future Australia, and avoid the reactionary policies and narrow paths now taking deep root in Europe, those of us with opinions on this issue need to refocus our thoughts. And sometimes our language. Kevin's reference to the Betts and Collier book above is a must read. This is a mighty complex issue. The book charts the history of the issue but points to answers. Few statements on this issue are safe. References to generosity as compared to Europe [Australia resettled its 900,000th refugee last year since 1947; Europe is now largely issuing temporary visas.] Australia is unwelcoming [it isn't - refugees report high levels of support and acceptance. The Toowoomba report the most recent document to shed light.] Labor is likely to win the next election. Labor has significant differences in policy. I'm writing to Labor members with what I see are achievable suggestions. Labor supports the deal with New Zealand. Labor says it will also: - Increase Australia’s annual humanitarian intake of refugees to 27,000 by 2025 - Provide $450 million in funding over three years to support UNHCR both globally; Australia will become one of the big funders. Betts and Collier have a lot of important things to say about how this funding should be spent. - Appoint an independent children’s advocate to represent the interests of children seeking asylum and legislate to impose mandatory reporting of child abuse; -Reintroduce the ‘90 day rule’ into the Migration Act, in addition to references to the UN Refugees Convention; -Reinstate access to the Refugee Review Tribunal and abolish the IAA established by the Abbott Government; -Abolish Temporary Protection Visas (TPVs) and place those found to be genuine refugees on permanent protection visas.
John Kilner | 21 September 2018


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