Judging Refugees

In this podcast episode, I speak with Dr Anthea Vogl about her new book, Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination. The conversation introduces listeners to the procedures involved in seeking asylum in the global north and how language is implicated throughout these processes. We explore the difficult narrative demands these processes place on those seeking asylum, and the sociopolitical contexts underlying them. We reflect on the contributions scholars across disciplines have made and can make to law and policy reform, informing best practice, and advocating for more just systems.

I greatly enjoyed the conversation – the topic is something I have been researching and thinking about for a long time and Anthea’s work brings new evidence and new conceptual frameworks and critical reflections to the table, both for a great podcast episode, and to contribute to ongoing scholarly, practitioner and policy discussions.

Anthea’s new book is being launched at the University of New South Wales, Sydney, on the 20^th of November, with hybrid attendance options available. Event information and free registration are via this link: Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination Tickets, Wed 20/11/2024 at 5:30 pm | Eventbrite

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Transcript

Laura Smith-Khan: Welcome to the Language on the Move podcast, a channel on the New Books Network. My name is Dr. Laura Smith-Khan and I’m a senior lecturer in law at the University of New England, Australia.

My guest today is Dr. Anthea Vogl, who is an Associate Professor in the Faculty of Law at the University of Technology Sydney. Her research takes a critical interdisciplinary approach to the regulation of migrants and non-citizens, and she researches and teaches across refugee and migration law, administrative law and legal theory. She is currently co-leading an Australian Research Council Discovery Project grant on private refugee sponsorship in Australia and a national grant examining the health requirement imposed on non-citizens under Australian migration law.

Today we are going to talk about Anthea’s new book, Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination, which is published by Cambridge University Press as part of their series, entitled Cambridge Asylum and Migration Studies.

I’ve read the book, of course, and recently reviewed it for the International Journal of Refugee Law. And, as I say in that review, I particularly appreciated how the book explores the “multiple ways narrative performance is implicated in (both) the conduct and the evaluation of refugee hearings”, and I described the book as “the most substantial and persuasive account to date of the impossible narrative demands placed on people seeking asylum.”

So on that note, Anthea. Congratulations on the book, welcome to the show, and thanks so much for joining us today.

Anthea Vogl: Thanks, Laura. It’s a real pleasure to be here, and thanks for that lovely introduction.

Laura Smith-Khan: My pleasure! To start, I’d like you to introduce the book for us, and perhaps you can explain a little more what it’s about.

Anthea Vogl: So the book really is about what we call refugee status determination. And for listeners who don’t exist in a legal framing, that’s really how the law comes to understand whether or not someone is going to be granted refugee status and believed to be the refugee, as they claim to be according to a particular legal definition.

That is the focus of the book that that question of what we do around refugee status determination at its most general. But the book is fundamentally about what happens when we put refugee status determination into practice, and there has been a lot of work done on refugee status determination. And we can talk in a minute about how, why, it’s such a difficult process, but a lot of the work that has been done on refugee status determination hasn’t necessarily had access to or been able to examine what is called the oral hearing, as part of that process.

A fundamental step in the refugee status determination process is where an asylum seeker comes before a decision maker to explain his or her claim. It’s really difficult to access those hearings. It’s really difficult, because of another thing that the book tries to do, which is to set refugee status determination within the broader context of the regulation of the border, and in particular, the incredibly violent and sometimes lethal means states have used to prevent refugees not from just getting to the border, but getting to that place where States are obligated to assess someone’s right to refugee status within their particular country or territory.

In looking at refugee status determination and the oral hearing, what the book tried to do was access some of those spaces that have been so hard to get into and ask, what happens when an applicant comes before a person empowered by the state to assess and judge their story? And how do those oral exchanges ultimately inform and determine that final decision that sometimes we have access to from the public records of refugee status determination bodies. Sometimes we don’t have access to that decision. And what is the relationship between those two things at a really prosaic level? You know, I was really interested in what is happening in the hearings, and then, more legally, I was interested in the relationship between the evidence that comes out in those hearings and what is finally decided. And at a critical level, a long standing critical engagement with the very premise of refugee law and the idea of border regulation, and only letting certain people cross borders on certain terms.

I was interested in the ways in which state written narratives about refugees, and who is an authentic refugee, and who deserves our protection, influences the kind of stories that are told in those hearings.

Laura Smith-Khan: Yeah, thank you so much. There are so many layers to this. And I really admire how well that you bring all those different threads and those different layers together in the book.

And personally, I can attest to how difficult it can be to access this type of research data – incredibly difficult to get permission to sit in and observe these types of hearings or be able to record them or to access recordings of them. So congratulations even on that first crucial step, especially in Australian context.

And it’s also worth pointing out that in a number of countries the hearings aren’t even usually recorded as an official procedural step, so recordings may not ever exist for hearings as well, and that raises a lot of questions about the accountability of those processes, too.

Anthea Vogl: Yeah. And tracking those gaps, I think is something that is a real challenge for researchers and I think it relates back to the secrecy and control that states seek to maintain over refugee issues and refugee law and practice. And actually, it’s a lot of your work, Laura, that I think has really nicely pointed out that even though – and this is a big part of the book, too, and a really nice intersection between our work – even though it’s the refugee who’s ultimately attributed with the testimony that they bring before decision makers, and they’re considered to be the author or the speaker, and then they are judged on that basis, your work has shown really carefully how actually, there are so many different voices, and so many different people who contribute to that particular testimony. And I’m thinking of your work and Katrijn Maryns’ work, and Marie Jacob’s work too.

And yet the refugee’s held responsible for that testimony in the end, and we have no way of tracing some of those processes, and how that comes about for a range of reasons, but also because it’s so hard to access the data.

Laura Smith-Khan: Yeah. And I think that’s where your work really comes in to provide a really good evidence base of what is going on behind the scenes, and also how you can have, on the one hand, these ideas of giving refugees a voice, or that, they’re “telling their story”, and that’s put forward as maybe increasing the legitimacy and fairness of the process. But what your book does so well is actually pulls apart what is happening, what is expected, and actually demonstrates so clearly how the demands or the expectations of a certain type of narrative, are controlled by the decision maker, ultimately, both within the hearing, and then also afterwards by the fact that they are the ones that take what has happened in the hearing and reframe it in their decision on both those levels the narrative is never really under the control of the asylum seeker. And that’s just such a great contribution to demonstrate that across all these different examples across Canada and Australia.

But I think maybe we should step back and give a little bit more overview of what the process looks like for someone if they’re seeking protection as a refugee in a country in the global north.

Anthea Vogl: Yeah, great. There’s a lot we could say about the content of refugee law and how it operates. But I think it might be useful to focus on the procedure for the purposes of the podcast.

Very briefly, there’s a definition in international refugee law, and it’s often imported into states that have become signatories to the Refugee Convention. Refugees have to prove that they face a well founded fear of persecution on one of five grounds, race, religion, ethnicity, and political opinion and particular social group.

What’s interesting there is that sense that the refugee has to give an account of their own fear on the basis of a particular ground, and that fear has to be both judged to be true on a subjective level, in that the refugee has to themselves have that well-founded fear, but it has to be objectively true, so it has to accord with a legal and evidence-based assessment of whether or not that person has or would have experienced, something to give rise to a fear in their country of origin.

As listeners, as you start to think through who refugees are and how they come before a decision making body in a global north state, what will probably spring into your mind is that people don’t necessarily come with access to the kinds of things that the law takes to be convincing and compelling in terms of forms of evidence. So someone’s fleeing their home state, and they are seeking to prove that their home state has persecuted them or harmed them, or people in their home state have persecuted or harmed them. The chance of being able to access those records, or having indeed left with written or documentary evidence of that having happened, is really slim.

Even where people leave with the most basic forms of documentary evidence which would help their claim. So really simple things, like even identity documents, even those identity documents are not necessarily the kinds of evidence, or they’re not in a category of what we talk about as probative evidence. We can’t even see prove that those written documents are authentic and true. And so there’s already this massive barrier to making a claim.

And in many ways the refugee status determination process and how it works both seeks to respond to that challenge – I think if we read in good faith the setting up of the refugee status determination process, it talks about having to give applicants the benefit of the doubt, because they don’t have other forms of evidence to build their claim for the purpose of the book. Why, that’s really important is because where we’re left is with both written and oral testimony, as the absolute foundation of how most refugees will make a claim before a court.

Sometimes there are other witnesses or people that someone might be able to call. That happens rarely, and sometimes people have had access to really good records, to substantiate their claim interestingly with social media and the digitization of some forms of evidence that’s like added a whole other interesting element to evidence that might be available. But to really summarize what happens, both at the first and sometimes second level of decision making. So before things are reviewed by courts, an asylum seeker comes before a decision maker. He or she or they may or may not have access to legal assistance, and both Canada and Australia are good examples. Without generalizing too much, even in the hearings, those who have access to a lawyer and a lawyer present, it really is the applicant giving testimony to the decision maker and the decision maker questioning and interrogating that evidence for most of the hearing.

And then, very importantly, the other person in the hearing, in almost all cases, is the interpreter. Keeping in mind another core challenge of refugee status determination, which you are, of course, very familiar with Laura, and will probably be of central relevance to listeners is that that the whole process happens across the applicant’s own language and the language of the host country, which are very rarely the same language, but sometimes they are. In all of the hearings that were included in the book, in both Australia and Canada, there was an interpreter present. In one of the hearings one of the applicants was confident with English, and the interpreter dipped in and out, but otherwise the interpreter was also the third voice in the hearing.

Laura Smith-Khan: Yeah, so you’ve got this really strong reliance on both written oral testimony, and very specific requirements in terms of the written testimony in terms of application forms, filling out a lot of different types of information. And there’s some great scholarship around how those different forms of testimony can also then be used to find inconsistencies. And these types of things come up in credibility assessment, too.

Anthea Vogl: Yeah, and it’s probably worth saying that one of those taken for granted bits of knowledge within refugee status determination and refugee law is that the claim is assessed on the basis of the substance of the claim. So it is assessed in terms of what is being told, and whether the decision maker finds those things to be plausible and true are a key part of that, and whether or not they accord with the legal framework, and also does your claim fit into what the law has said in your country, of where you’re seeking asylum a refugee is, or how it defines refugee.

But a key part of all refugee status determination, precisely because often of this absence of other evidence, is the credibility of the applicant and their evidence. So the applicant themselves, and the credibility of the story that’s being told, or the evidence being given, and credibility assessment in most countries turns on three main criteria: the idea of consistency and coherence that you just referred to and that’s consistency and coherence across multiple tellings. So you have to make sure that you are telling the same story again and again and again, which again, listeners can think about how difficult that is even just in the ordinary course of their own lives, not in an adjudicative setting.

The second criterion is plausibility, so is the story being told plausible. And then a third criterion that comes up is demeanour which has been really roundly criticized in a lot of jurisdictions, and I don’t necessarily address too much in the book, because I wanted to reinforce the ways in which, of all the criteria that have all been criticized, it’s the one, I think, with even less credibility than the other criteria.

But that credibility assessment is a key part of the claim, and it’s almost like a compulsory part of a lot of work on refugee status determination, that as scholars, we all know that decision making turns on the credibility of the applicant, much more so than it does on the legal and factual elements of the claim.

Laura Smith-Khan: Yeah, absolutely. Yeah. I think the demeanour one is quite interesting in the sense that. There is a stronger consensus that it’s not something that should be relied on. But then, maybe it still is, and it’s not explicitly mentioned, or in my own research, I found at least that it’s mentioned when it’s relied on positively. So for, you know, “there are some inconsistencies here, but this person in general seems, you know, authentic” and blah blah, So it can be used in somebody’s favour, and then maybe not mentioned when it goes against them, something along those lines.

But yes, absolutely, the different types of what have been called indicators of credibility. And it really is such a foundational and crucial part of the refugee status determination process

And it’s so important in how your analysis, looking at these different narrative demands, really brings out how credibility or incredibility can be produced through unrealistic expectations of this particular type of narrative, and also the way that the decision maker controls the hearing in such a way that it makes it really difficult for the person seeking asylum to actually perform as they’re required to perform. So I’m really looking forward into drilling down a little bit more into that process.

I’d really like to just briefly talk again about your data that you have. So we’ve already mentioned that you had access to hearings. But could you just explain to us exactly what type of data you collected, where, when and the challenges, you might have faced with that.

Anthea Vogl: Yeah, for sure. Essentially, the method at the core of the book was, what is maybe a bit counterintuitively called participant observation of hearings which, some listeners might be familiar with, but I mean, to just to encapsulate it, it was sitting in refugee hearings as they took place, without actively participating in them, beyond making my presence known and seeking permission to be in those spaces.

Interestingly, and relevant to our discussion earlier. All of my access to those spaces came by the refugee applicants themselves. And there was more hostility from the Australian refugee decision making space than the Canadian refugee decision making space in relation to my presence, even though under the relevant statute in Australia, the refugee applicant has the right to allow people into their own hearing, the tribunal, some way into the research, overrode that.

They also have the right to control who is and isn’t in the hearing. It’s a little bit legally grey. But it wasn’t a point I was going to pursue, obviously, in the really delicate and stressful context of someone having their claim assessed, when the Department said, “No, thank you. We don’t want you in the hearing anymore.”

That’s when I started to work with some audio transcripts and recordings of particular hearings in the Australian context. In the Canadian context, both through refugee applicants and through the UNHCR, I attended the hearings.

It’s important to note, I think, for the book, it’s work that came out of my doctoral project, and the hearings really have not, even though the last hearing that I attended was 2015, which doesn’t make it current data. And it’s not current work of mine, but it’s something I really wanted to come back to in terms of publishing and thinking about it. The one thing in thinking that through and thinking about. What does it mean that these hearings don’t continue on into the present day?

I tracked the history of the oral hearing itself. And what has happened to the oral hearing in both jurisdictions. And I guess one of the things that I came to in doing that was that there’s been a lot of reform around refugee status determination processing. And I argued primarily to make it faster and more efficient in ways that disadvantage the applicant.

But really what hasn’t changed. So those changes have happened around the oral hearing and the oral hearing has remained. This central fulcrum on which the whole process turns, and I would say, unfortunately, there’s even more pressure on the applicant getting their claim right in the oral hearing, because timelines have been shorter in the lead up to it, and appeal and review rights have gotten even more attenuated and limited.

So what that ended up as was 15 hearings across both jurisdictions along with the case files for the applicants. And, importantly, the decisions. Coming back to that earlier point, that really interesting question of what was said in the hearing? How did stories and language come up, and how are they assessed and tested? And then what did the decision makers say about what happened in the hearing? There were some really interesting gaps to follow through and comparisons to make.

So it was the hearings themselves, being in the hearings and observing them. And then the case files. And I really used that material to conduct pretty deeply qualitative assessment of what was going on in the hearings. And again, you know, you’re always thinking through methods and trying to be critical about your approach.

At the start, I was hoping to maybe look at one particular ground, or one particular kind of claim or claimant. But really some of those challenges of accessing the hearing influenced this final decision to look across claims and across claimants and across countries of origin.

And the other thing was, I guess what I was looking at was this sense of what was going on in the oral exchange, and the structure and procedure of the hearing so that helped make those things more comparable.

But I would like to really acknowledge work that I think has been really critical looking at particular kinds of claimants. So, LGBTIQ claimants, people making claims on the basis of gendered persecution, particularly women, particular political opinions coming out of particular countries of origin. I think that work’s been really important. I look at some stock stories and assumptions in the hearing and the way narrative works more generally, and they really drill down into the ways in which global north states require particularly racialised people to tell particular stories about themselves when they are, for example, a woman facing harm, or a queer person who hasn’t been able to live safely on the basis of sexuality.

Laura Smith-Khan: Yeah, I think I think that’s what’s so great about this quite broad and quite large collection of scholarship, as you say, is that everyone has had different kinds of access to different types of data and different conceptual frameworks as well and different methodologies, but actually so much of it complements each other so well. So we have that ability to draw on that scholarship, and then see how it applies to our particular context, our particular data in such really valuable ways.

And such a great reflection as well, on how, in the one sense, you could potentially-  See, your data is amazing, and I’m very jealous of it. But in terms of the small number of hearings that you got to observe. On the one hand, you could see it as like a gap or a lost opportunity to, as you say, drill down and look at a specific type of claim across a really large number of cases. But, on the other hand, it creates this really fantastic opportunity to look at that bigger picture across those particular hearings, and see what they have in common, or the patterns that you can see emerging from it.

And you’ve also done such fantastic conceptual thinking. And I really think, yeah, as you say, you acknowledge that this has come from your PhD research, which was a number of years ago. But I’m very grateful that you went ahead and did the book, because I think it’s a great contribution. But I also assume, based on my own experience of how my understanding of my research has changed over time, I assume that maybe your development of the concepts or the theories that you’d like to apply to this data has changed over time. Because I think that’s also a really important contribution in the book. The way that you bring in a number of different areas, a number of different theoretical frameworks, and use them to analyze your data.

Anthea Vogl: Yeah, that’s such a nice way of thinking about it. And it makes me reflect on the ways in which sometimes, yeah, your analysis can be latent, or you start with an idea, and the more you come back to your work. I think for me that sense of reading the hearing contextually and refusing to just individualise what was going on in the hearing, both in relation to the decision makers actually, and the applicants.

So not understanding that the decision makers have a lot of responsibility for how the hearing works, and your work has looked at this, too, Laura, the really limited ways in which credibility is actually governed, or how we define the credibility criteria themselves, how we understand them, and then how they are implemented and the responsibility the decision maker has leaves for some pretty big, capacious, billowy spaces of legal regulation.

But having said that, yes, coming back to the book, that sense of some of the structural forces at play, both in terms of narrative and language and in terms of the politicization of the hearings that has really continued in a pretty relentless way was important.

But yeah, I guess, as you say, in thinking about, you know the data that you have, and coming back to it, I’m wondering, you know, of its relevance. Some of the law and language work in this space, I guess it’s simpatico in particular ways, because you look at one hearing, and you can look at a paragraph within a hearing and really break down what is happening between, say, an interpreter and an applicant and a decision maker, and there’s so much going on at the level of understanding that even if the hearings were perfectly structured and the fairest possible versions of themselves, there would still be these incredible linguistic, cultural, and adjudicative or contextual barriers to understanding and communicating in that space.

Laura Smith-Khan: Yeah, absolutely. There are so many opportunities to look at the data on so many different levels and make sense of it in so many different ways. And, as you said, also contextualizing the hearings within their political and historical context as well. And I really enjoyed that chapter as well where you gave this overview of that exact thing across both Australia and Canada, and mapped some of the parallels, and also noted some of the differences. And also this really ironic or interesting tension, or seemingly contradictory pattern that emerges between, on the one hand, really, you bigoted, discriminatory, hateful political discussion about people seeking asylum on the one hand, and needing to control and stop their entry and deter them and punish them. And, on the other hand, at the same time, this development of what seems to be oh, we need to make the processes more fair, and you know, set them out in a bit more detail and have really good procedures. And there’s that weird tension, because those things are happening similar like simultaneously, it’s really quite interesting. So then you’re left with these processes that look very rigorous, trying to make sure that everyone’s accommodated, and we can communicate across language, barriers and all these things. But, on the other hand, it’s all happening against this really horrible kind of political discourse in the broader public space.

Anthea Vogl: Yeah, and trying, yes you say, there’s a real tension, and I think you know the book very much I guess aims to be a critical theoretical take on what’s going on in the hearings and what’s demanded of refugee applicants as testimony givers. But you know, as an advocate, and someone really committed to refugee justice on the ground I wanted to make really clear that we can’t lose sight of in the context is as it is a commitment to as fair a process as possible. Even if I’m you know, pretty directly critical of procedural fairness or improving credibility standards in this context as fixing the process. I don’t think it will, but the hearing itself and access to legal assistance and access to interpreters, you know, these are really fundamentally important things.

And when people had no ability to put their claims. So, looking at that history, you know, it comes from a complete, almost completely discretionary determination of people’s claims into what was a reform around individual rights to fair hearings both in Australia and Canada, and the right to be heard as a form of administrative justice and natural justice.

You know, I think, given the context, those things are really very important. But then, you see the way in which that individualizing feeds back into this broader narrative of authentic and inauthentic refugees, reinforces, and indeed generates and creates stories of genuine and credible asylum seekers as against bogus and unbelievable and incredible asylum seekers. And the person who bears the responsibility for that, you know, is sometimes, is the asylum seeker at the center of this assessment process regardless sometimes. Not always. You know there are some. There are concessions made, and I think, importantly, really important, research. Looking at the challenges, particular kinds of applicants facing, speaking their claims and narrating their claims.

But you know, generally, it’s the applicant that bears the responsibility of navigating that system and putting forward a claim that it is deemed to be credible. I think it’s important as scholars and thinkers that we don’t become inured or numb, or we stop forgetting how shocking that is. You know that, regardless of what an applicant has been through, or what testimony that they’re giving, their testimony must meet these particular standards of evidence giving, which I guess the book tries to draw on this the amazing literature at the intersection of law and psychology, which has said these are just, entirely unreasonable expectations to have of people’s language, and what the human memory can and can’t do generally. Just, you know, regardless of what might have happened to one person as an individual, but particularly in the context of anyone who suffered major violence, harm and trauma. And what that does to language.

Laura Smith-Khan: Absolutely. And that, yeah, we then still expect these individual people to be able to perform in these very, very specific ways.

Okay. So I think I would like to ask you a little bit in more detail now, because I’ve been hinting at this. What exactly is demanded, what types of different narratives or expectations did you find.

Anthea Vogl: Yeah. One thing that I that motivated the project and led to, I guess a series of findings was a bit of curiosity around what we mean when we talk about narrative in law and narrative studies and law and literature. So these bodies of work were really helpful, and I think particularly law and storytelling, which has come out of critical race theory and really looked at, you know, who gets to tell stories before the law who gets to judge them, and which ones are credible. For the refugee hearings and the book, I think drilling down into the specific narrative demands made of refugees, and the construction of narrative really informed the findings of the book.

Because it’s one thing to say, yeah. People, we demand stories. We demand people tell stories. But what does that mean? And why is it a problem, I think, for refugee applicants?

There are a couple of things. One, very significantly was that idea of a really Western narrative form which is temporarily located, even if it might not be chronological, that it’s sequenced in a way that is explicable. And that there’s a sense of most narrative studies talking one way or another about causation or connection between events and an accounting of that causation. So you can’t say, you know, “I went to the shop today, and tomorrow I brush my teeth.” That doesn’t make a narrative, because you’re meant to, you know, account for why you’re telling these things in a particular way, in a particular order, and someone might say that was out of order, because you should brush your teeth first.

So that sense of refugees being able to account for the connection between events in their lives and account for them in a way that – and this is a narrative, that coming from Western and Anglo European narrative studies – where there’s a real sense of not only being able to explain causality between events that happened to you, but that they should all come together in a sense of what’s sometimes called moral closure, a moral lesson or meaning. So a story has to have a particular meaning, and that that has to make sense. So that comes back to that credibility standard of plausibility. So it’s only plausible if you can sequence it, account for connections between events, and then provide some form of moral meaning or moral closure.

And this is the work of Marita Eastmond and a range of other really great critical non legal scholars often talking about refugee status determination. That’s not how things happen to people, and seeing that play out in the hearings was really apparent, making things make sense in a particular way, accounting for connections between events.

And then the other really important part of narrative studies as it connects to the work that I did, and what I saw in the hearings, was an accounting, a demand for refugees to account for themselves, like to understand themselves, and be able to really clearly explain how and why they did things, and to do that in a way that denied ambivalence, denied confusion, denied the impact of the circumstances that they were in that might have led to arbitrary decision, making or decision making that I can’t account for.

And then really, I wanted to say shockingly, but it was more infuriating, listening to decision makers wanting refugees to also account for other actors in their story. So you can imagine.

Laura Smith-Khan: Oh, my God! Yes.

Anthea Vogl: Yeah, it’s so. You know, this is where you start to see how literature helps us understand why this is a problem.

Work has been done on this in a more legal framing. But the idea that the applicant would have to account for the decisions of their persecutors. So if a persecutor let them, if someone was let out of jail, even though they were then you know they were then free of their captors. But then, say, re-imprisoned. If that didn’t make sense to the decision maker, the refugee had to account for why a state jailer might let someone free from arbitrary detention.

And again, the need to do that with clarity and certainty in order to reassure a decision maker in a sense of what might or might not be consistent or plausible, was really disturbing. And then I connected that to a narrative voice, or a particular version of the coming of age novel, or what gets called the Bildungsroman in German, because that’s where it’s said to come from. Which is the formation novel, which is like an all-knowing narrator. So if you did just.

Laura Smith-Khan: Omniscient.

Anthea Vogl: Yeah, exactly. So. It’s like the refugee applicant, in the hearings I observed, didn’t just have to tell a story that ended in this moral closure of becoming a refugee and a resolution to seek confidently seek refugee status. But along the way had to account for sometimes really minute aspects of the story that they themselves were part of, or that they were subject to as a narrator, in order to make the claim credible to a decision maker.

So to summarize that, I think, looking at the elements of narrative a little bit more theoretically, or looking at narrative structure, and then asking how they informed, or how they came up in the hearings, was a useful way to come back to a broader politics of storytelling and how it was operating in the hearing.

And I really appreciated, when you said earlier, you know, we assume that this right to tell one’s story is something that is a positive development and that, you know, being able to – and yes, storytelling itself has been cast as a really important part of, I think, campaigns for political justice, and I think that is true.

But there’s also a disciplining function of telling particular stories and people are disciplined into being certain kinds of subjects before the law, and it’s really clear the kinds of subjects refugees have to be in order to fit within the storytelling frame that decision makers accepted as true.

Laura Smith-Khan: Yeah, I when I was reading those parts of the book, I was – you know, waving my hands around and screaming almost. And I really appreciated like, because they resonated a lot with me, things that I’ve observed myself in work contexts.

But the theoretical frameworks that you had to work with from narrative studies and law and literature really helped name or you know, account for what’s happening there and why it’s so problematic. And it’s this, expectation, as you said, that we have somebody who not only has to account for themselves and explain why every single choice that they’ve made along the way is completely rational and well informed, and not emotional, or needs to be more emotional, or, you know, whatever the expectations are, but also that they have to account for every single other person who’s part of “their story” along the way, including sometimes even they’re persecutors.

Of course they can’t get inside the head of other people, and people do irrational things all the time. Or you know, there are motivations that we don’t understand informing why they make the choices that they do.

Anthea Vogl: Yeah.

Laura Smith-Khan: Yeah, just so problematic too.

Anthea Vogl: Yeah. And I think you know, what was really apparent was when that wasn’t. It happened in so many of the hearings that there were a couple of hearings that I point to where it’s like. Oh, no! There was a space for the applicant to express what happened without having to take responsibility for imbuing that with plausibility, sense, rationality, as you say, and like moral meaning.

And that burden of having to do that was was so conspicuous in its absence. Because you started to say, Oh, this is this could look significantly different. I think it wouldn’t solve all the problems or the fact that we still don’t have great indicia. We don’t have great ways to tell, to determine with any degree of certainty what truth is in these contexts.

But yeah, as you say, when it was there, it was just such a barrier to being able to just provide the evidence that was required of the applicants as they were coming before decision makers.

Laura Smith-Khan: Yeah, and something that a lot of the literature talks about especially in the Australian context, and perhaps also in the Canadian context, the idea that theoretically this is supposed to be an inquisitorial process where the decision maker is responsible for, you know, searching around for evidence and helping to produce the evidence. But in reality, at least in these particular contexts, it does seem quite adversarial. Right? That’s maybe a reflection of our particular legal systems.

Anthea Vogl: Yeah. And I think again, yeah, narrative theory was helpful in thinking through the different reasons we tell stories and the different settings that we tell them in, and how that will inflect the story that’s being told, what can be said, what can’t be said, how we might imagine an audience receives our testimony or testimony more generally.

And I think one of the things that became apparent in thinking through this idea of a narrative occasion is that it’s not easy to tell one’s story to begin with. But if there is a context in which a decision maker is also impeding your ability to meet these narrative standards. Then I guess that’s when for me the argument about credibility and decision making spaces as gatekeeping comes together because one of the findings and I think this has come through in other people’s work because it’s clear in decisions.

So a lot of work in the credibility space has also looked at the written reasons and written decisions. But people that I observed, the hearings that I observed, applicants were asked to tell the story and to meet some of these standards that we’ve just spoken about. And then the hearing itself did all of these things to just make that actually impossible. So even if the applicant could meet those demands the behaviour of a decision maker, the norms-

And so again, not necessarily bringing this home to individual decision makers because I didn’t- it wasn’t an ethnography of decision making. I didn’t have a quantitative number of, it wasn’t a quantitative study of how decision makers behave.

But the norms, as you say, around how the hearing is conducted was not to open up a space where someone could present narrative on their own terms, and then be judged on the on the terms of the decision maker and hearing it was instead, I guess what I observed was fragmentation decision makers interjecting themselves into applicant’s stories and actually asking exactly the kinds of questions that even the very limited guidance, legal guidance, or usually policy guidance, on credibility that exists, asking those kinds of questions. So the guidance that we have generally says it’s not uncommon for people to forget dates. It’s not uncommon for memory to be interrupted by traumatic events. And so that’s all there.

And yet, you know, decision makers really pushing for “did this”, not just “did this happen before or after this other thing?” But you know, “when did this happen? What year was it? You earlier said it was early in the year. Now you’re saying it was October. Why are you doing that?” So really interrogating and looking for moments where the credibility criteria wasn’t being met against the credibility guidance, such as it is, that exists.

So yeah, that that sense of the inquisitorial hearing was absolutely, apart from, I would say two of the hearings that I observed, just really absent from the hearings that were part of the study.

Laura Smith-Khan: Yeah. So even where there are guidelines with very specific advice, the fact that they just seem to be routinely overlooked or ignored is yeah, very, quite concerning yeah. And you’ve touched on another really important chapter in your book in terms of the conduct of the hearing and the fact that we have this idea of applicants having the space, and the floor, I guess, in communication to be able to just say things, tell their story. But what that actually looks like in terms of the hearing structure can be very different.

And I think you talked about the difference between Canada and Australia as well in terms of the order of the hearing.

Anthea Vogl: Yeah, I mean, it’s interesting. There was a similar kind of unpredictability around how the hearings went. So I guess that was another finding. And I must say, I attended hearings first in the context of, before coming to research, in the context of refugee advocacy.

And I really did, I think it’s not naive to think that if you have a hearing where a refugee believes that his or her or their story is being assessed that they will be able to tell their story. I mean, I look back on it, and I think it’s naive. It feels a bit naive, but, as you say, it’s like, well, here’s the space. It’s an open space, tell your story. It’s not how it works.

Sometimes the Canadian hearings, even though they were, they sometimes they made much clearer that they were just going to interrogate aspects that the decision maker found implausible, or the aspects of the decision maker was concerned to get more information about. And that was done more predictably. So, even though it wasn’t this open space for storytelling on one level, that benefited applicants because they were told what was coming at them

In the Australian hearings, a little bit about how the hearing is introduced, or how the decision maker sets up the hearing, when the applicant walks in and begins the hearing and it was, it was still- You know, an applicant would still be forgiven for thinking they’re about to be able to tell their story, and to do that in something of a chronological way. What we sometimes would call just for shorthand, and maybe even non lawyers know this, the idea of evidence in chief. So you get to tell your story before someone tests it. That really didn’t happen in any of the hearings that I observed.

And so the that sense of being able to create coherence and create plausibility was denied to the applicant, even though you know a lot of work on law and language and credibility in the hearings and Law and Psych has pointed out, it’s, you know there are barriers to doing that, in any event.

Laura Smith-Khan: Yeah, I think it’s probably worth just as a slight aside to explain to listeners who aren’t familiar with the setting that in the Australian context that the hearings that you were observing were a second hearing. So there’d already been an application process, and there’d already been an interview with the Immigration Department, and that hadn’t gone well, and the particular person had been, you know, rejected. They had their claims rejected. And then, after that, the second stage hearing was with a review body that looks at the whole claim afresh. So they aren’t supposed to just look at the first decision, and see whether that was done correctly, but actually look afresh at any fresh claims, or you know what’s happened since then, and the whole claim. So on the one hand, there could potentially be the expectation that they’re just reviewing the existing record. But ideally they would give the applicants a complete fresh chance to share their story, as it were.

Anthea Vogl: Yeah, yeah, that’s always. I teach a refugee law clinic. And it’s always so difficult to explain to students that this process is meant to be fresh review of the original decision, so just a rehearing of the decision as it was first made. And of course that’s not what happens in the hearings, and as advocates you’re always you’re already, and the book talks a little bit about and there’s been great work done by Jesse Hambly and Nick Gill and others about the role of lawyers, and also a lot of the law and language schools, too. Great recent piece by Katrijn Maryns and Marie Jacobs about the role of lawyers and their politics.

But I think, what really comes through when you’re looking at the way in which the hearings operate, and what the applicant can and can’t say is that there’s no version where there’s an ability to clearly articulate your story on your own terms. And so you then, you’re just fed back into this process where the decision maker is picking up on things that he or she has already observed as a problem with your narrative.

Laura Smith-Khan: Yep. Starting from that point of problem or distrust.

Anthea Vogl: Yeah.

Laura Smith-Khan: To somehow work from that back footed position, which is, yeah, a whole different challenge.

Yes. Wow. So yeah, I think it was valuable to read about your reflections in terms of you know. What does all this mean for our ability to make an impact? And you know, what is it? Does this lead us to any kind of suggested reform? Or you know, what does this all mean, especially when we’re looking at that broader question of structural unfairness, that really comes out so clearly in the book.

Do you have any hope?

Anthea Vogl: I mean, look. One thing, that without being a prescription of reforms to fix the process which the book just, you know, is really open about that. That’s not. That would be that would come out of, or that some of these observations would hope to inform that maybe accepting that some of the broader political challenges, or that the reforms have to take place in light of attention to the idea that there’s some, if we have in Australia, and you know Canada does its own share of this increasingly with the US-Canada border.

If we have a regime that’s willing to exert such brutal violence on people seeking to cross the borders and make an asylum claim, what does it mean, then, to demand, or how do we understand that alongside, is a real question. I think a very sincere and genuine quest of many scholars, advocates, lawyers, decision makers to make this process fair and equitable.

I think that they’re the two really hard things to hold within the frame together. I mean that, having been said, I do think the interdisciplinary work that has been done on the problems with the process. And I am not just saying this because we’re conducting a law and language podcast you know the work that has been done by law and language, and like law and, the intersection of law and language attending to what goes on in the hearing, and how decisions are made.

The other interdisciplinary, that big body of interdisciplinary work, looking at the intersection between law and psychology, and trying to really understand how these incredibly unfair and incorrect, you know, just blatantly incorrect inferences are drawn in the hearings, gives me hope.

Because I don’t think, you know –  I think there is a gap between the politics and also the will of decision makers and decision making bodies to make good decisions. That having been said, you know, I think that site of interdisciplinary knowledge is crucial for understanding legal processes here. I don’t think we get very far with a legal analysis of refugee decision making.

So in that kind of sense of grounding reforms, I think it’s really important. And the other thing that I do think, and I try and talk about this at the end of the book, if we are stuck with this process, if we, and I know a lot of things are on the horizon, including AI and Automated decision making, which will require us as researchers and advocates interested in justice for good decision making and refugee justice, we’ll have to engage with those things.

But I think if the hearing is in its current form, working hard to preserve the quality of the procedure and people’s access to good legal advice and proper interpreters and proper timelines before and after the hearing is part of the struggle in the interim.

I think there’s really good work. I do think the critical work which has just really come at credibility as lacking. I mean your own work. But really, the critical cultural studies work about the problems with all of these stereotypes that exist within credibility assessment.

Even at the level of international NGOs, maybe not yet government, there is a real consensus that credibility is dysfunctional, like the credibility assessment process is not working, and I do hope that they will work on that, that there will be an ability to really think of something. I don’t think that will solve the problems, but it affords a little bit more justice in these testimonial spaces and spaces of decision making.

Laura Smith-Khan: Yeah, for sure. While ever we’re working within the existing system, it is really heartening to see, I think, at least at an individual level, lawyers and also decision makers being quite receptive to that type of interdisciplinary research.

Anthea Vogl: Interest.

Laura Smith-Khan: And I guess we just all have, you know, a kind of quite hefty duty and responsibility to communicate it to them in ways they are going to take it on and use it productively within the problematic context in which we we’re all doing our work.

Anthea Vogl: Yeah, I mean, yeah. So true. I mean, sometimes I catch myself. I’m not pessimistic. But I’m kind of you know, I think it’s important to always think politically and contextually. And you know, I was like, I just don’t think, you know, coming to a pretty negative conclusion. But like, yeah, towards the end of the book.

Anthea Vogl: Gregor Noll recently also wrote something, so a scholar of credibility and refugee assessment for a long time, reflecting on whether or not we can make RSD work in the context of the current credibility standards, and I think the work of Jane Herlihy, who has also engaged with this.

And you know that there’s just a really clear no, you know, there’s not a reformist agenda. I don’t think that works around the credibility assessment, the current credibility criteria, as they’re currently expressed. And then what that looks like in these hearings. So even though I don’t mean to be, I was like, “am I being too pessimistic?” You know “is it too much of a harsh conclusion?” But I think that kind of consensus, and then the receptiveness of at least trying to think of other ways, to approach testimony is hugely important. Unless we really take seriously the problem of individualized status determination which I don’t think states will be doing away with anytime soon.

Laura Smith-Khan: Yes, absolutely. I think I personally felt that you did a really good job of very explicitly, you know, drawing a line, really making it clear that you know it’s not just enough to walk away from reading this book and say, “Oh, well, you know, we can just tweak this little bit, or just avoid doing that particular thing, or requiring this, or don’t interrupt,” or you know these little things that we can check off the list, and then everything’s going to be fine, not enough. And we can’t accept that as good enough. And I think that’s a really powerful and important statement to walk away from with this book.

I thought it was really well expressed. And yeah, it is very easy to just fall into cynicism when you’re working in this space, but also to be able to say specifically, you know, these are the things that I’m identifying in this work. This is what other people are identifying. This is what we can say within this system, but to acknowledge that the system is fundamentally flawed within itself, and while ever it exists, as it is, there’s a limit to achieving the ultimate goal of, you know truly fair processes and affording everyone protection when they need it. Yeah, hopefully, that’s not too glum.

Anthea Vogl: No. And I think, yeah, I’m reminded of yeah, of Hilary Evans Cameron’s work, who’s worked in this space. And you know, she really reinforces that in the search for truth that our focus should be on – the state’s focuses on the danger of a false positive, you know, giving someone status when they “shouldn’t” have been given status because they didn’t have a real claim. And you know, like shifting the focus to actually, a false negative. You know? How do we actually attend to the ways in which decision making that should be the focus of our concerns, given what refugee law regulates and what’s at stake in these decisions.

Laura Smith-Khan: Absolutely. I find that argument, I’ve heard that one from her as well, so persuasive that it’s much more important to protect against or avoid false negatives, you know rejections that shouldn’t have been rejections rather occasionally, you know, “letting someone in” who, you know, doesn’t “deserve our protection”. And I’ve spoken with lawyers as well, who make a parallel between this particular setting and credibility and the criminal law. You know, we give people the benefit of the doubt. We assume someone is innocent until proven guilty rather than the other way around, and the stakes are just as high or arguably higher in this particular setting. So why not try something similar here? Yeah.

If we can address the larger socio-political context in which all of it…Yeah, to to be worked on today and in the future.

Anthea Vogl: That small problem. Yeah.

Laura Smith-Khan: Thanks so much for speaking with me today, Anthea, and congratulations once again on this really incredible contribution that you’ve made to this very important scholarship. I understand that you have a book launch which is coming up fairly soon. Could you share the details with us?

Anthea Vogl: Yeah, so the book came out earlier this year. But these things take more time than you anticipate. So on the 20th of November here. I’m currently, I should have said, I’m so sorry I should have said I’m here in Gadigal land, on Gadigal Land, in Sydney. We are having a book launch at the Centre for International Law and the Centre for Criminology, Law and Justice at UNSW. And the UNSW Kaldor Centre would have the details and the registration link. So I’m really looking forward to that. I’m grateful to those centres for launching the book, and it’ll be just an hour discussion at 5.30 in a few weeks from now.

Laura Smith-Khan: Yeah, it’s not too far away, I think hopefully, we will have this podcast up and published before then, so we can publicize it. And I’ll be able to include a link to the invitation.

Anthea Vogl: Amazing. That’d be great. And it is also a hybrid for people who are listening from places other than Sydney, it’s a hybrid event. So there’s an online attendance option.

Laura Smith-Khan: Fantastic. Thank you so much. Thanks again.

Anthea Vogl: Thank you. Thanks for such wonderful questions, Laura, and you are absolutely the best person for engaging with the book. So it’s been really a pleasure to speak to you about it.

Laura Smith-Khan: So wonderful to read it, and thanks for taking the time to discuss it with us, and thanks everyone for listening. If you enjoyed the show, please subscribe to our channel, leave a 5-star review on your podcast app of choice and recommend the Language on the Move podcast and our partner, the New Books Network to your students, colleagues, and friends. Till next time!

References

Berg, Laurie & Millbank, Jenni (2009). Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants. Journal of Refugee Studies, vol. 22, no. 2, pp. 195-223.

Eastmond, Marita (2007). Stories as Lived Experience: Narratives in Forced Migration Research. Journal of Refugee Studies, vol 20, no. 2, pp. 248-264.

Evans Cameron, Hilary (2018). Refugee Law’s Fact-Finding Crisis: Truth, Risk and the Wrong Mistake (Cambridge University Press).

Hambly, Jessica & Gill, Nick (2020). Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. Journal of Law and Society, vol. 47, no. 1, pp. 3-28.

Herlihy, Jane & Turner, Stuart W (2009). The Psychology of Seeking Protection. International Journal of Refugee Law, vol. 21, pp. 171-192.

Jacobs, Marie & Maryns, Katrijn (2022). Managing Narratives, Managing Identities: Language and Credibility in Legal Consultations with Asylum Seekers. Language in Society, vol 51, no. 3, pp. 375-402.

Noll, Gregor (2021). Credibility, Reliability, and Evidential Assessment, in C Costello, M Foster & J McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press), ch. 33.

Smith-Khan, Laura (2019). Why Refugee Visa Credibility Assessments Lack Credibility: A Critical Discourse Analysis. Griffith Law Review, vol 28, no. 4, pp 406-430.

Vogl, Anthea (2024). Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination (Cambridge University Press)