22 October 2013


'Decision-Making Conditioned by Radical Uncertainty: Credibility Assessment at the Australian Refugee Review Tribunal' (University of Technology Sydney Law Research Paper No. 2013/5) by Trish Luker comments that
The increasing global magnitude and exigency of refugee status determination is resulting in recent attention to the parameters of credibility as part of evidentiary assessment in refugee law. In Australia, as in other countries, it is well recognised that applications for review of primary level decisions on refugee status commonly fail on the basis of credibility evidence. Furthermore, it has been suggested that the assessment of credibility is likely to be a source of error in decision making. In this paper, I report on the results of a small-scale study into decision-making and credibility assessment at the Australian Refugee Review Tribunal involving interviews with decision-makers. Drawing on feminist theories of epistemic responsibility, I argue for a revised standard of proof, suggesting a rebuttable presumption of credibility, or truthfulness, on the part of the applicant seeking asylum. Such an approach may go some way towards addressing the potential for epistemic injustice and is consistent with a position of epistemological responsibility demanded by an ethical obligation to the refugee.
In discussing corroboration Luker comments
Members have an obligation to take all evidence presented to the RRT into account, including any documents presented by the applicant. However, they expressed a general mistrust of documentary evidence, pointing out that it is very easy to produce fraudulent documents. One said:
In fact, I've come really to the view that most documents can be forged and I never accept a document simply on face value. It may be, looking at the document—I mean this happens I suppose fairly often—looking at the document, hearing what the applicant has to say, you come to the view that yes, the document is probably authentic. Quite often though, there'll be real reasons for rejecting a document ... there's a lot of country information about the ready availability of forged documents in a lot of countries and it goes so far as to cover forged newspapers. In Pakistan, for instance, it's quite possible to have a dummy newspaper produced in which you can have an article inserted, talking about the terrible things that happened to you (Member 1, female, full-time).
Any document presented as evidence must be translated, the cost of which is borne by the applicant. Members may ask the interpreter for some general assistance about the substance of the document at the hearing, but are not responsible for translation. Members said that they have access to information available about the ease with which fraudulent documents can be obtained in particular countries through the RRT’s research unit. Procedural fairness requires members to put adverse information to the applicant and invite her to respond.  Further, in attempting to verify the authenticity of documents, members said that they would ask for oral evidence on the providence of the document. For example, one said:
If I have concerns about the authenticity of the document I raise it with the applicant. I might be relying on country information which gives me those concerns; then I will discuss that country information with the applicant. I wouldn’t generally ask the applicant to verify the authenticity, I would do that myself. ... We do that through our country service. So we have a protocol in place (Member 1, female, full-time).
In the past, experts were used to verify the authenticity of documents, although this procedure had subsequently been found to be unreliable, as a member explained:
There were some cases quite a long time ago where we used experts in—well, I'm not quite sure how you'd describe the discipline now but it's analysing photographic images and comparing ... for identification purposes. So on the odd occasion in the past we've used that sort of thing. I've had applicants provide their own expert witness evidence on a comparison of a—sort of facial recognition type of work (Member 5, male, full-time).
While members were generally dismissive of the evidentiary value of documents, one member pointed out that if it was determined that a document was genuine, this may serve to enhance the credibility of testimonial statements (Member 1, female, full-time).