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.
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-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)