This study investigates the assumptions made by decision makers in Australia when adju- dicating claims for refugee status and/or complementary protection. By analysing 50 randomly selected cases of the Refugee Review Tribunal, it provides a systematic evaluation of the frequency and importance of assumptions made by Australian Tribunal members, partly replicating an earlier United Kingdom study published in this journal. As a multi-disciplinary team of lawyers and psychologists, the authors investigate how Tribunal members’ assumptions about human behaviour pervade credibility assessments, and how they shape overall decision making in the asylum context. This study examines the extent to which Tribunal members take account of credibility guidelines and the psychological evidence base to give protection applicants the benefit of the doubt when their claims cannot be verified. Since asylum seekers’ futures are determined by the outcome of these decisions, it is argued that the Tribunal should provide a greater level of predictability and consistency in the approach taken in the assessment of their cases.The authors argue
This study investigates the assumptions made by members of the former Refugee Review Tribunal1 when adjudicating claims for refugee status and/or complemen- tary protection in Australia. It analyses 50 randomly selected cases determined by the Refugee Review Tribunal (Tribunal) in 2015. In doing so, it responds to the call by United Kingdom (UK) researchers Herlihy, Gleeson, and Turner for further systematic evaluation of the frequency and importance of assumptions made by refugee decision makers, following their own 2010 UK study.
The UK study explored refugee decision makers’ assumptions in 30 cases as they related to three broad themes: ‘there’ (the period prior to the applicant’s entry to the UK, focusing on how others behaved); ‘here’ (the period in which the applicant navi- gated the UK asylum process, focusing on how appellants presented themselves and their evidence, as well as their knowledge of the asylum system); and what can be termed ‘now’ (the period during the tribunal hearing itself, when the decision maker evaluated the truthfulness of an appellant’s account in light of factors such as consistency, detail, and demeanour). Decision makers’ assumptions typically fed into credibility determinations in the adjudication process.
In replicating this important study in Australia, the ‘here’, ‘there’, and ‘now’ typ- ology has been maintained. This underscores the cross-cultural, linguistic, and related challenges that Tribunal members face when adjudicating applicants’ accounts of per- secution, their flight from apparent danger, their understanding of expectations in a new culture and society, and their ability to navigate Australian refugee determination processes. How do Tribunal members, with their own cultural norms, expectations, belief structures, and experiences, understand ‘there’, the distinctly different refugee-producing world of the applicant? ‘Here’ and ‘now’ considerations arise in contexts that are familiar to Tribunal members but unfamiliar to applicants, who are outside their comfort zone.
This study, like the UK study, found that decision makers variously make assumptions about applicants, family members, and government officials. Inevitably, the deter- mination process requires decision makers to imagine themselves in other people’s lives and circumstances, and such assumptions are used to fill gaps in diverse ways. There is always leeway for choice, and the robustness of an assumption depends upon a decision maker’s approach and whether, and when, he or she chooses to give the applicant the benefit of the doubt. For instance, whereas there may be documentary evidence avail- able to substantiate a claim that a particular road, bridge, or checkpoint was unsafe at a particular time, issues relating to personal relationships, honour killings, and the like, cannot be verified in the same way. Given the frequent lack of corroborating evidence, it is critical to understand decision makers’ pervasive assumptions since these may be used to fill the void. As Herlihy, Gleeson, and Turner observed, in a personal injury claim, a wealth of external material, such as health and police records, is available, yet ‘[i]n asylum cases, there are often only the narratives from applicants themselves’. Even in cases where there is additional evidence to support the applicant’s account, his or her personal narrative remains pivotal. In such contexts, any rejection of the applicant’s explanation should be based on contradictory information, not just surmise.
This study, like its UK predecessor, sits, both generally and specifically, in the context of a significant body of literature on credibility evaluation that examines credibility assessment issues in refugee status determination. Notably, the tenor of this literature has been endorsed in Federal Court of Australia judgments, and, at the time when the cases selected for this study were decided, Tribunal Guidelines on credibility matters were consistent with this body of research. This study assumes that there is a body of accepted ‘best practice’ regarding credibility assessment, and it analyses the sam- ple cases to identify the extent to which applicants’ accounts are scrutinized, and the nature of that scrutiny. In particular, it investigates the ways in which Tribunal members’ assumptions about human behaviour pervade credibility assessments, and how they shape overall decision making in the asylum context.
The study sets out assumptions in the abstract, rather than in the context of the full decision. This does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence pre- sented to Tribunal members. While an examination of the full Tribunal file in each case, including the evidence submitted and any records of the hearing itself, may have pro- duced a fuller picture of how decision makers analyse assumptions, such files are not publicly available and records of a third party are difficult (if not impossible) to obtain via freedom of information requests. The authors acknowledge this limitation, but stress that the goal of the study was to explore the evidence relied upon and articulated by Tribunal members in their decisions, together with their explanations and justifica- tions for their credibility findings in this context.