Are we all different in the same way?

Multilingual advice provided by the Administrate Review Tribunal

Countries in the Global North have developed increasingly sophisticated and complex processes to assess the claims of people seeking asylum. One key challenge is that asylum seekers often have little more than their story to offer up to support their claims. This means that deciding whether or not their stories are credible has become a fundamental step in the assessment process.

Yet the settings in which these decisions are made are emotionally charged and government officials and asylum seekers often have very different experiences, cultures and languages. So it is unsurprising that credibility assessment processes have attracted a lot of scrutiny, with scholars from a range of disciplines offering cautions and suggestions for improvement. Many of these revolve around issues related to cultural and linguistic diversity – communicating a story of persecution in a foreign institution is hardly straightforward. It involves transforming a complex and unique life experience into a neatly ordered refugee narrative that meets the expectations of the government department and the individual tasked with making the decision. A large body of research tells us of the many difficulties with communicating through an interpreter in such settings, or using a second or third language, or a language variety different to that spoken by the official. The official may have completely different life experiences or cultural expectations to that of the asylum seeker, which may make their story appear unrealistic or unbelievable. Officials may also look at asylum seekers’ demeanour to assess their honesty, despite the overwhelming body of research warning against the reliability of such assessments.

In Australia, the Immigration Department (currently known as the Department of Immigration and Border Protection) has recognised the challenges created by the cultural and linguistic diversity of those participating in asylum procedures and has taken steps to address these in its guidance documents. In my article, ‘Different in the same way?: Language, diversity and refugee credibility’ (Smith-Khan 2017a), I look closely at the Australian guidelines on credibility assessment in refugee appeals and consider how they incorporate diversity. I argue that while they acknowledge the need to accommodate applicants with different languages and cultures, there are some dangers arising from the discourse developed in this guidance. In fact, the language used in the guidelines frames applicants as different and largely ignores the decision maker’s own difference or subjectivity. Again and again, they remind us of the applicants’ social and cultural background. Their culture becomes an immutable feature of who they are – something which will inevitably influence their behaviour and way of thinking. While on its own, this may seem a reasonable warning, this contrasts with how the decision makers are presented. The guidelines instruct them:

What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.

The officials’ neutrality is reinforced by what they are called in the Guidelines. They are referred to as ‘members’ – i.e. institutional and societal insiders (contrasting sharply with asylum seekers who are ‘applicants’, outsiders waiting to be allowed in). Even more frequently though, they are named ‘the Tribunal’. Thus they take on the ultimate neutrality: by taking the name of the institution they represent, we are to believe that any one decision maker is no different from any other. Therefore, unlike the applicants who are tied to their culture and other social attributes, decision makers are expected to be able to attain objectivity (I discuss this in greater detail in another article (Smith-Khan 2017b. See also my blog post here).

This discourse creates difficulties in two different ways. First, because applicants are repeatedly linked to their social and cultural grouping, they are denied individual idiosyncrasies and quirks. They are expected to behave in ways that are standard to the particular groups to which they are assumed to belong. Where their actions or choices clash with the decision maker’s expectations of someone from this group, they may lose their credibility.

Second, the decision makers’ assumed ability to be objective means they are not encouraged to be self-reflexive, especially in regards to how their own background may influence how they decide what is reasonable or expected behaviour in those they are assessing.

The body in charge of processing asylum appeals in Australia, the Administrative Appeals Tribunal (AAT) (which took over from the separate Refugee Review Tribunal (RRT) in 2015), publishes a selection of its (anonymised) decisions online. From these I selected a corpus of decisions that dealt extensively with credibility. From this corpus I identified two decisions in which diversity was a key issue that arose in assessing credibility.

From my analysis, I discovered that the applicants (and their legal advisers) attempted to point to their cultural and linguistic diversity to overcome issues of inconsistency and plausibility raised by the decision makers. They used arguments pointing to sociolinguistic factors to explain inconsistencies in their descriptions of events. For example, an applicant whose claim revolved around his homosexuality explained how he felt uncomfortable sharing details of his sexual encounters in front of a female interpreter from his country of origin. And an Egyptian applicant noted how his choice of words had been affected by the lack of an interpreter when preparing a written statement, meaning he used a general term (‘arm’) instead of a more specific one (‘shoulder’).

The applicants addressed plausibility concerns in a similar way, pointing to cultural and social factors to explain why their reported actions were not implausible. For example, the homosexual applicant was questioned over his ‘failure to attempt to meet other homosexuals’ for a number of years after arriving in Australia as a student. He explained that he was new in the country, busy with study, had to work to support himself, did not speak English well and was afraid to go out at night, following a spate of attacks on Indian international students.

These types of explanations were mostly dismissed. D’hondt (2009) describes a similar situation in the Belgian criminal justice system. Culture attaches only to the minority participants, yet it is the professionals who retain the power to apply culture in their assessments. He explains:

Categorizing the defendant as a cultural other…prompts the defense attorney to invoke specialist knowledge about the defendant which is not accessible to the defendant him/herself…These attorney-initiated culturizations mobilize common-sense understandings of ‘culture’ (which lack a clearly defined legal status…), without posing a threat to the judiciary’s self-representation as ‘empty’.

In the asylum context, the decision maker is the specialist, entitled to decide what is reasonable behaviour from a person of the applicant’s background. Further, references to accommodating diversity in the Guidelines revolve around issues of communication within the appeal hearing and the applicant’s knowledge, rather than their past behaviour. Although applicants may attempt to mobilize diversity-based arguments to defend themselves, the power remains with the decision maker to determine whether or not to accept such arguments.

The way diversity is constructed in the Guidelines, and then reflected in these decisions demonstrates some of the key concerns put forward in research on intercultural communication. While policy guidelines may seek to sensitize officials to accommodate diversity, such texts may present diversity in such a way as to actually reinforce hierarchical, power asymmetrical structures. Diversity discourse may frame only certain participants as being diverse – e.g. the subjective, culturally and socially influenced applicants vs the objective, neutral decision makers. This can have the effect of ‘othering’ the minority participants and essentializing them into simple categories, while re-entrenching the ‘normal’ and ‘neutral’ status of the mainstream. Difference becomes a fixed and overwhelming attribute that attaches to society’s others and overrides their individuality. This was exemplified in the decision-making in my analysis, most especially in the assessment of the homosexual applicant’s behaviour. It is hard to imagine that a heterosexual person would be misbelieved for their ‘failure’ to date or form a relationship upon arriving in a new country. While the applicant drew on arguments about his social position, cultural and linguistic background, and financial situation, these attributes seemed to be eclipsed by his sexuality. Because this was the key element of his identity for the purpose of the credibility assessment, it seemed that his behaviour was expected to reflect this above all other aspects of who he was. It was the decision maker’s own conceptualization of reasonable behaviour for a young homosexual man against which he was measured – he was expected to actively search out a partner. The plausibility of alternative actions being rejected means that the applicant was denied the privilege of a more complex identity, as an individual with myriad experiences and motivations.

While asylum bodies have come a long way in developing assessment processes, this research demonstrates that challenges remain. Diversity may be acknowledged, but this does not mean that all persons are considered different in the same way. We need to continue to interrogate the way we discuss and present difference and reflect on the effects this has on those who have most to lose in the process.

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References

D’hondt S (2009) Others on trial: The construction of cultural otherness in Belgian first instance criminal hearings. Journal of Pragmatics 41: 806-828.
Smith-Khan L (2017a) Different in the same way? Language, diversity and refugee credibility. International Journal of Refugee Law https://doi.org/10.1093/ijrl/eex038
Smith-Khan L (2017b) Telling stories: Credibility and the representation of social actors in Australian asylum appeals. Discourse & Society https://doi.org/10.1177/0957926517710989

Author Laura Smith-Khan

Laura is a PhD candidate in the Department of Linguistics, Macquarie University. She is admitted as a lawyer in NSW and has conducted fieldwork with refugees across four continents and focused on the inclusion of refugees with disabilities. Her current research focuses on language policy and language ideology in Australian asylum procedures. She loves learning new languages and speaking about anything language or communication related.

More posts by Laura Smith-Khan
  • Tricia

    Very interesting insight into how limited cultural and personal knowledge of an asylum seeker’s experience renders tribunal members predisposed to misinterpreting or even misjudging the former’s narrative and its veracity. Thank you, Laura for sharing your research. It was interesting to see the predicament in this decision making: On one hand, the “applicants” are potential victims of misjudgment; on the other hand, the “members” have the burden of accurate and fair assessment.

    Since linguistic difference is identified as one of the critical challenges in this context, it may help to explore the possibility of providing language and psychological support in the assessment process. As pointed out in the article, it is sometimes not just a matter of speaking the same language (which can be accomplished by interpreters) but also understanding the unique circumstances of the individual. Essentially, bridging the differences between applicants and members seems to call for blending and balancing linguistic similarity, psychological empathy, and legal objectivity.

    This makes me wonder how my own country handles assessment of asylum seekers although I imagine there wouldn’t be as many cases as in Australia.

  • Hoor Raj

    Great work Laura! this is really a thought provoking article with an interesting title. I really appreciate the way you have pointed out towards the measures we have set for catering diversity as rather entrenching the sense of ‘others’ in society. Good work!