Refugee credibility assessment and the vanishing interpreter

Editor’s Note: Asylum seekers in countries of the Global North need to communicate a credible fear of persecution to assessors who speak a different language, come from a different cultural background, and operate in a different institutional context. To bridge these gaps between asylum seekers and assessors, the work of interpreters is essential, yet widely devalued and erased. Dr Laura Smith-Khan explored these vanishing acts in her keynote lecture at the recent InDialog 4 conference at Ghent University, Belgium. We are privileged to be able to share a version of her talk with our readers.

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To grant protection to asylum seekers, officials in the global north require them to communicate a fear of persecution. Not only that, they also must believe them. The process of evaluating an asylum claim and an asylum-seeker’s credibility involves multiple forms of communication, and given the transnational nature of seeking asylum, this setting is one with a great deal of linguistic diversity.

Therefore, it should be obvious that interpreting is a common feature in asylum procedures and that interpreters play a crucial role in facilitating the communication of the various participants involved. Yet misconceptions about interpreting can affect participation in interpreter-mediated encounters and can also influence the way asylum communication is evaluated as part of the credibility assessment process.

Existing studies have found that interpreters’ work is sometimes devalued, and interpreters are even made invisible within institutional structures, discourses and practices. This is despite a large body of research about the many roles and impacts interpreters have within the encounters they mediate, both in asylum procedures and beyond.

Below I’ll share some of my own research, focusing on refugee credibility assessment in Australia. I will introduce some key “language ideologies” that operate in asylum procedures. I believe this is important, because “the study of interpreters, their experiences, and the ideologies of voice and language within which they work offers ways to interrogate the contradictions of global capital and its related humanitarian enterprises” (Kunreuther & Rao, 2023, p. 250). So I will explore how these ideologies have an impact on institutional understandings of interpreting, and through this, how they can undermine how asylum seekers’ communication and credibility are assessed.

Seeking asylum in Australia

To provide some context, here is a short overview of the process for seeking asylum in Australia (see Diagram). The procedures differ depending on whether people seeking asylum arrive by boat or with a visa.

First, for people arriving by boat, they have a basic entry interview. And then if the government allows them to, they will later make a protection visa application, along with other asylum seekers who were able to reach Australia by plane, with some other visa, for example as tourists or students.

The protection visa application is assessed by the Immigration Department, and involves completing a long set of complicated application forms and then later participating in a detailed and rigorous interview with the official who is tasked with evaluating the application.

If the application is unsuccessful, a merits review, where the facts of their case are reconsidered, is possible. There are two separate bodies for this: people who arrive by boat have their application reconsidered by the Immigration Assessment Authority, which usually reviews the existing records only, and does not call the applicant for further questions. In contrast, people who arrive with a visa can opt for a review which is carried out by the Administrative Appeals Tribunal and involves attending a further hearing.

If the applicant is successful at the merits review stage, they can seek judicial review. If they continue to be unsuccessful, they can make further appeals up through the Australian Federal court hierarchy. However, what can be considered in a judicial review is quite limited and it is difficult to successfully navigate this process without professional legal assistance, so only a small proportion of cases are appealed there, and even fewer are successful.

In this post, I’ll draw on a mix of data from Australia: published decisions from one of the merits review bodies, the Administrative Appeals Tribunal, a Federal Court decision, and interviews that I conducted with migration lawyers.

Language ideologies and the law

In Anglophone scholarship, the concept of “language ideology” began developing in the late 1970s. It is the idea that everyone has their own “common-sense” beliefs about what good language is and about how communication works or should work. Importantly, scholars emphasize how power structures are implicated in how particular language ideologies are mobilized and prioritized. For example, Ingrid Piller notes that language ideologies “serve to legitimize the social order and therefore they are always interested, multiple and contested” (Piller, 2015, p. 87). Diana Eades concurs, observing that they “can play an important role in the reproduction of inequality (Eades, 2012, p. 474).

This concept has proven useful for examining a variety of legal contexts, when it comes to understanding how testimony and evidence are gathered and assessed. Drawing on a range of existing research, Eades articulated some key language ideologies relevant to legal processes. In summary and for our purposes they are:

• Ideology of inconsistency: A “central strategy” to undermine witness credibility – this involves identifying inconsistency between different tellings of a story.
• Ideology of narrator authorship: The idea that the witness or interviewee produces testimony on their own.
• Ideology of decontextualized fragments: Accepting that it is okay to take single words or phrases out of their original context to examine and test them.
• Ideology of entexualization: Related to the previous ideology, this one involves taking decontextualized testimony, and recontextualizing it somewhere else. In legal and bureaucratic settings, this often involves transforming oral texts into written ones. This transformation is accepted as producing an accurate and official record of institutional encounters.

Here, I’d like to consider more closely these ideologies and explore how they affect understandings of interpreting and interpreters within migration procedures, and in turn, how this can affect policy, practices, and participation within these processes.

A central concern in asylum procedures is determining whether an asylum-seeker’s stories and claims are credible. Much like what Eades found in the criminal law context, one of the key ways refugee credibility is tested relies on the ideology of inconsistency: asylum-seekers are made to tell their story on multiple occasions in multiple ways to try to pick up inconsistencies between each telling.

The three remaining ideologies Eades identifies all help enable the testing of inconsistency. They also all rely on or help to produce a certain understanding of the role of interpreters and interpreting: that interpreting is neutral, and that it puts minority-language participants on an equal footing with other participants, and has no tangible impact on the production of testimony.

As we will see, this means and requires that interpreters and interpreting become almost invisible in the official documents of the asylum decision-making institutions.

Acknowledging the interpreter

I examined a collection of 27 published decisions from the Administrative Appeals Tribunal where credibility is discussed. These are the documents where the Tribunal decision-maker sets out the asylum claim, explains what happened in the hearing, where they ask the asylum seeker questions about their claim. During the hearing, they also raise any concerns that they have and give the asylum seeker the chance to respond. The written decision should include the details of this process and explain the official’s reasoning process for arriving at their decision.

In this corpus of decisions, I found that there is very little mention of interpreters: in four cases there is absolutely no mention of interpreting, nor does the official specify that the decision was conducted in English, so it remains completely unclear what language or languages were involved (see Figure 1).

In the decisions where it was clear that an interpreter was present, more than half only have generic, copy-paste template sort of statements about them, for example “The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.”

While these written decisions often describe the applicant (or asylum seeker) as speaking, saying, claiming, responding etc, interpreters themselves are only infrequently presented as communicating.

In eight cases, including one where the hearing was conducted in English, there is a little more discussion of interpreting, but only because it has been raised as an issue by an applicant or their lawyer. In only two decisions does a decision-maker make what appears to be unsolicited remarks related to an interpreter.

This very minimal inclusion of interpreters in these written decisions contrasts sharply with how asylum applicants are represented. Throughout, they are most often described as communicating, e.g. “the applicant stated this”, “the applicant claimed that” (for more discussion see Smith-Khan, 2017), when of course in actual fact in most cases it would have been an interpreter’s English words that are being written down or summarized. Already in this corpus of decisions, it is evident that the written performance of credibility assessment hinges primarily on presenting how the asylum-seeker communicates, with very little explicit recognition of interpreters’, or indeed other interlocutors’, contributions to the communication.

Raising multilingual communication, challenging authorship

When applicants or lawyers try to challenge this invisibility of interpreting or translation, it can be hard for them to get the decision-makers to accept their arguments.

For example, in one case in this corpus, a decision-maker drew on the ideologies of inconsistency and decontextualized fragments to find an asylum-seeker not credible. She was mainly concerned about the inconsistent use of the words “giving” and “sending” when it came to the part of the applicant’s claim where he talked about sharing information about Christianity with his customers.

In this particular case, it was earlier noted that the applicant, who was Chinese, had professional assistance putting together his application, and that he had prepared a written statement which was “later translated into English” to be included as part of the application. The tribunal hearing was conducted with a Mandarin-English interpreter.

The official reports in her decision:

The Tribunal indicated to the applicant that there appears to be inconsistencies in the evidence, namely that in oral evidence he had said that he was giving the customer some material whereas in writing he has claimed that he was sending the material. The applicant stated that the mistake had been made by the translator. The Tribunal indicated that the inconsistency could raise doubts about the veracity of his claims and his credibility generally, and his general credibility. The Tribunal invited him to comment or respond. The applicant said if there is any doubt he is regretful.

From what is evident from the written decision, the asylum seeker (referred to as an “applicant” as per Tribunal conventions) consistently stated throughout the hearing that he gave and did not send these materials, so the apparent inconsistency is between what appears in the written statement prepared when he initially applied for asylum, and later when interviewed.

Here, along with relying on decontextualized fragments to find an inconsistency, the ideology of narrative authorship is clearly demonstrated. When raising the apparent inconsistency between “sending” and “giving” the tribunal member assigns authorship to the asylum seeker: the applicant said in oral evidence and the applicant claimed in writing. However, in fact, those utterances and words were produced by two others: an interpreter and a translator. When the applicant seeks to respond to this issue – again, communicating with the assistance of an interpreter – he raises this exact point: that it was the translator who produced the English version of the statement and so it must have been a mistake they made.

The tribunal decision-maker mentions this particular inconsistency at multiple points, and the applicant consistently points to the translator. But unfortunately, the tribunal member does not accept this at any point and continues to suggest that this inconsistency undermines the applicant’s credibility.

Written texts as reliable representations

I’ve been discussing these types of issues and ideologies for some time now, and a few years ago I was excited to find an Australian Federal Court review where the original rejection had involved a similar type of inconsistency, and the Federal Court judge rejected the use of decontextualized fragments (Smith-Khan, 2022).

Part of the claim was that the asylum-seeker’s family started running a shop, and that sometime later the shop had been attacked. The apparent inconsistency was that during one interview, the asylum-seeker talked about an attack occurring “a few months” after opening the shop; and at another interview, the asylum-seeker provided two dates that suggested the attack was about six months after the shop opened. The merits review official rejected the case, and at first appeal a judge agreed with their approach.

In a further appeal to the Federal Court of Australia, however, I was very happy to discover that the asylum seeker’s lawyers argued that the judge should look beyond these decontextualized fragments to consider the actual interaction, involving questions and answers, that took place in one of these interviews. Even better, the judge accepted this argument, and throughout his written decision, we find extracts of a transcript of the immigration interview to which he refers to demonstrate this reasoning.

Analysing protection interview discourse

Particularly relevant to our current discussion is this extract of the transcript (see Image). The transcript is reproduced in the court decision (references are to the Immigration Officer (Off) and the asylum seeker (App)).

By looking more closely at the interaction, instead of just those decontextualized fragments, the judge concluded that the original finding of an inconsistency was not logical, and that the answer “a few” could be explained by the way the questions were worded, and because of the official’s interruptions too. He observed that “the question … posed two alternatives. It was not an open question” and the asylum seeker’s “answer was the most accurate of the two alternatives.”

Importantly, the judge also emphasizes that relying on decontextualized words is particularly problematic “in an interview where the [asylum seeker] was unrepresented and which required an interpreter …” (my emphasis).

However even in this exceptionally positive case in which we see an uncommon resistance against these pervasive language ideologies, where the lawyers and judge support the approach of looking more closely at the interaction, we are still not actually looking at the interaction itself. We are looking at an entextualization of a spoken interaction into a written transcript.

And very significantly for our purposes, not only is it a transcription of speech into writing, in doing so, we also see a multilingual interaction, involving Arabic and English, transformed into a monolingual English one. In the process, all of the asylum-seeker’s and interpreter’s Arabic utterances simply no longer exist.

We also see an interaction that actually had at least three speakers – the decision-maker, the asylum-seeker and an interpreter, transformed into one where the interpreter is once again made invisible.  All of the interpreter’s English utterances are textually reassigned to the asylum-seeker, reflecting and reinforcing this ideology of narrative authorship.

This shows that even in very exceptional cases where there is resistance to the problematic language ideologies at play in asylum credibility assessments, these ideologies are so deeply engrained in institutional practices that they persist in ways like this.

Perhaps the choice of a monolingual transcript was pragmatic in this particular case, since the lawyers’ arguments relied on questioning approach rather than any particular issue with interpreting. However, the fact that they could make this choice suggests that transforming multilingual oral communication into monolingual written texts is an accepted norm in this setting. Further, the choice to attribute the English utterances to the asylum seeker, similar to the Tribunal decision corpus, further erases the interpreter’s contributions.

In this example from Australia, we can see how the choices made in how audio recording of the immigration interview is transcribed involves a transformation process. However, in many other jurisdictions, this can happen through other forms of entextualization. In places where asylum interviews are typically not audio recorded, the immigration official must simultaneously conduct the interview, while also making a written record of what is apparently said (Maréchal, 2022; Wadensjö et al., aop).  Arguably with that arrangement there is even less transparency than in the Australian case, because there will be no audio records to consider when seeking to examine the accuracy of that written record, or to raise issues with the interpreting or any other part of the interaction. However, even in the Australian case, we can see that languages and participants circulate unequally throughout asylum procedures: multilingual interactions become monolingual documents, and interpreters, though very often physically present in interview room, are all but erased on paper.

Structures and practices

If we look beyond the decision-making process, these ideologies also help justify and are reinforced by structural aspects of asylum processes, and again the Australian setting provides a clear example, but these considerations are also relevant elsewhere.

Despite Australia being a world-leader in terms of its professional accreditation for interpreters, poor working conditions for community interpreters suggest that their professional skills are not highly valued. These conditions include being poorly paid and working mainly in insecure freelance roles (Cho, 2023). For legal interpreting many report not even having access to a chair to sit on in court, or a table to take notes, or not being given water to drink, or adequate breaks (Hale & Stern, 2011).

In the asylum system, interpreters are generally only booked for the exact start time of the asylum interview or hearing, and are given very little or no briefing on the application. The government department is effectively the client – they choose and pay the interpreters. The interpreters do not have permanent contracts but work casually, on an ad-hoc basis through external agencies. This set-up understandably has an impact on the power dynamics in the interaction, limiting interpreters’ ability to raise issues about how the officials conduct the sessions, how they ask questions or interrupt the asylum-seekers.

This type of work arrangement is also an environment where interpreters may feel uncomfortable asking for clarifications or sharing doubts. There are also time-related pressures created by room bookings and interpreting assignment booking which limit the duration of interviews or the duration of an individual’s interpreter’s involvement.

The way languages are classified by the interpreting agencies and official interpreter accreditation body can also create challenges: lawyers report having trouble being able to choose the right type of interpreter for their needs, for example not being able to specify a particular variety of Arabic.

Also, while there is effectively a right to interpreting in asylum interviews and hearings, there is no such right beyond the interview room. Some community legal centres have very tight interpreting budgets, and have to sometimes rely on untrained volunteers or family members to help with interpreting, or preference telephone interpreting over face-to-face interpreting because it costs less.

Further, going back to this idea of the asylum seekers being the sole narrators of their testimony, there is no right to legal representation for asylum seekers in Australia. This somehow seems justified in a system where the testimony is ideologically viewed as simply the asylum-seekers’ own.

This is significant for so many reasons: both research and practice both tell us that having legal assistance has a huge impact on how strong an asylum application will be, and whether it will meet very stringent procedural requirements (Ghezelbash et al., 2022; Smith-Khan, 2021). Further though, the lawyers I’ve interviewed often talk about the interaction monitoring role they play in asylum interviews. Being familiar with their client’s case means that they are better placed to pick up any issue that might come up in interpreter mediated encounters and to intervene and advocate on behalf of their client – something that interpreters can’t do due to the limits created by their code of conduct and ethics. Lawyers can also note such issues and use them as grounds for an appeal, putting more pressure on officials to do the best they can to ensure smooth communication (Smith-Khan, 2020).

Having knowledge of institutional processes and challenges, they are also better placed to navigate the bookings processes, to best ensure an appropriate interpreter is chosen. This makes them valuable in terms of addressing some of these structural issues just discussed, yet only the small number of asylum seekers who have access to legal support can benefit from this sort of assistance.

If we adopt this ideology of asylum-seekers producing their refugee narrative all alone, then all of these structural issues are much harder to challenge, and both interpreters’ and lawyers’ contributions to the production of refugee testimony can be denied.

Conclusions

In this post I have introduced some key language ideologies that operate in asylum processes. Through the data I have shared, I have tried to demonstrate how these ideologies affect how asylum claims are assessed and how asylum seekers’ credibility is evaluated. In particular, I have sought to demonstrate how these ideologies operate to render invisible interpreters’ and interpreting’s contributions in asylum communication. This is a key part of the institution’s discursive performance of objectivity and legitimacy that acts to entrench their authority to make these types of decisions: because for them to rely on assessments of asylum-seekers’ communication in the way they do, other participants’ contributions in the co-production of testimony cannot be acknowledged.

To close, I want to leave us with this thoughtful quote in which to find motivation for our work:

As figures who stand at the intersection of global economic and political projects, interpreters enable the movement of people, ideas, and capital across borders. An understanding of the invisible labor of interpreters disturbs the alleged transparency, neutrality, and ease of communication that is so foundational to the authority of institutions of global governance. (Kunreuther & Rao, 2023, p. 250)

This is why I believe that research in this area is so crucial, and that we must all continue to do our part to investigate interpreters’ work and working contexts, and to challenges discourses, rules and practices that devalue them.

References 

Cho, J. (2023). Bilingual workers in a monolingual state: Bilingualism as a non-skill. International Journal of Bilingual Education and Bilingualism. 10.1080/13670050.2023.2213374
Eades, D. (2012). The social consequences of language ideologies in courtroom cross-examination. Language in Society, 41(4), 471-497.
Ghezelbash, D., Dorostkar, K., & Walsh, S. (2022). A data driven approach to evaluating and improving judicial decision-making: Statistical analysis of the judicial refugee of refugee cases in Australia. UNSW Law Journal, 45(3), 1085-1123.
Hale, S., & Stern, L. (2011). Interpreter quality and working conditions: Comparing Australian and internationa courts of justice. Judicial Officers’ Bulletin, 23(9), 5-8.
Kunreuther, L., & Rao, S. (2023). The Invisible Labor and Ethics of Interpreting. Annual Review of Anthropology, 52. https://doi.org/10.1146/annurev-anthro-052721-091752
Maréchal, M. (2022). Engagements institutionnels. Enjeux glottopolitiques de l’interprétation dans les instances décisionnaires de l’asile en France. Glottopol : Revue de sociolinguistique en ligne, 36. 10.4000/glottopol.1653
Piller, I. (2015). Language Ideologies. In K. Tracy (Ed.), The International Encyclopedia of Language and Social Interaction. 10.1002/9781118611463
Smith-Khan, L. (2017). Telling stories: Credibility and the representation of social actors in Australian asylum appeals. Discourse & Society, 28(5), 512-534.
Smith-Khan, L. (2020). Migration practitioners’ roles in communicating credible refugee claims. Alternative Law Journal, 45(2), 119-124.
Smith-Khan, L. (2021). “I try not to be dominant, but I’m a lawyer!”: Advisor resources, context and refugee credibility. Journal of Refugee Studies, 34(4), 3710-3733. https://doi.org/10.1093/jrs/feaa102
Smith-Khan, L. (2022). Incorporating sociolinguistic perspectives in Australian refugee credibility assessments: The case of CRL18. Journal of International Migration and Integration. https://doi.org/10.1007/s12134-022-00937-2
Wadensjö, C., Rehnberg, H. S., & Nikolaidou, Z. (Ahead of print). Managing a discourse of reporting: the complex composing of an asylum narrative. Multilingua: Journal of Cross-Cultural and Interlanguage Communication. https://doi.org/10.1515/multi-2022-0017