Simcha Walfish
BCL/LLB III, Faculty of Law, McGill University
15 February 2019
When it comes to claims for refugee status, “credibility is always an issue.” There is often no independent evidence corroborating a person’s claim that they meet the definition of a refugee in Canadian and international law. Instead, as academic Sean Rehaag writes, “Refugee determinations often turn on a single question: Is the refugee claimant telling the truth?” While our system has placed credibility as the key question, “credibility decision-making is poorly understood, including by decision-makers themselves.”
Singh and the Creation of the Immigration and Refugee Board
The centrepiece of Canada’s refugee determination process is an oral hearing before the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB). The Canadian government created the IRB to respond to the landmark 1985 case Singh v. Minister of Employment and Immigration. Singh dealt with seven different refugee claimants – six citizens of India and a Guyanese citizen of Indian extraction – who argued they would face persecution for their race, religion, or political activities if forced to return. Immigration officers had refused all seven claims based on written submissions and an interview by an immigration officer. Decisions were made in private and the applicants were not allowed an oral hearing to respond to the case against them.
Section 7 of the Charter of Rights and Freedoms guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In Singh, the Supreme Court of Canada ruled that the word “everyone” includes every person physically present in Canada. Because of the importance of credibility, the Court concluded that refugee claimants present in Canada were entitled to a full oral hearing. In Justice Bertha Wilson’s opinion, “where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.”
The Court’s reasoning relies on the assumption that the written record is inadequate to fairly determine a serious issue of credibility. The Court does not explicitly address just why that is so. As Donald Galloway writes, “the opinions in the case are none too clear about the specific reasons for preferring oral testimony to the written word.” Perhaps an oral hearing is so deeply connected to fundamental justice and due process in the western legal psyche that it goes without saying. If the primary question is going to be whether a claimant is telling the truth, justice demands the immediacy of a personal interaction and the possibility to respond to arguments.
Some of the more common justifications for requiring oral hearings before the RPD is that they allow members to gauge a claimant’s demeanour and the consistency, plausibility, and coherence of their story. Face-to-face, the decision-maker will somehow be able to tell whether the claimant is telling the truth. This fundamental assumption does not seem to be true. According to Rehaag, “decision-makers seldom have the ability to accurately detect false testimony empirically verified, which is worrisome considering that most people dramatically overestimate their abilities in this regard.”
The Problem with Demeanour
While urging a “great deal of caution,” IRB guidelines maintain that “the RPD can evaluate the general demeanour of a witness as he or she is testifying. This involves assessing the manner in which the witness replies to questions, his or her facial expressions, tone of voice, physical movements, general integrity and intelligence, and powers of recollection.”
In a context where communication is nearly always cross-cultural, assessments of demeanour are deeply flawed. As Galloway argues, scholarship and decision-makers themselves have come to see demeanour with great skepticism. Facial expressions, tone of voice, and body language do not contain universal markers of truthfulness. They derive their meaninig from cultural context. They can also be affected by PTSD. The IRB document notes that “courts have attempted to diminish the role of demeanour in the final assessment of credibility” but that every assessment of credibility is nonetheless influenced by demeanour.
The Problem with Consistency
Galloway notes that for many decision-makers, realizing the personal and cultural specificity of demeanour, “the archetypically objective (logical) criterion for credibility has been consistency.” If a claimant sticks to the same story, from the initial claim, to the interview, to the hearing, the decision-maker will see that conssitency as a mark of credibility.
Demanding consistency seems like common sense. A claimant that is telling the truth should tell the same story at every stage of the process. But relying on consistency is not so clearcut. Rehaag argues that the assumed nexus between truthfulness and consistency is “problematized by research on the complexity of memory and autobiographical accounts – complexity that is amplified where the person offering the account suffers from post-traumatic stress disorder or other mental health challenges, as is common in the refugee law context.” Insisting on consistency shifts the focal point of the oral hearing from listening to the claimant’s story to another interrogation, to see if the story can withstand attack.
Law’s Creation of Refugee Subjectivity
Professor Trish Luker argues that refugee subjectivity itself is brought into being by the legal process and its demand for qualities like consistency and a credible demeanour. Since the claimant’s personal narrative is usually the primary piece of evidence available to decision-makers, the refugee hearing is a prime opportunity for a claimant’s “performance of refugee-ness”:
It is in this way that I am suggesting the legal process leading to formal recognition of the refugee is structured as an interpellation. The individual, faced with the authoritative power of law, recognises the call as an address to her and, in an attempt to make herself recognisable, responds with a narrative account of her life. The ideological function of the legal process is to prescribe the discursive space, the linguistic conditions necessary to the field in which a claim for protection must be articulated.
Luker argues that the refugee determination process is not simply about recognizing who is a genuine refugee and who is not. The refugee emerges in a “performative speech act” as “a result of repetition and citation of tropes of ‘refugee-ness’ which function to legitimate and naturalise certain representations as evidence of the grounds for protection.” This can place claimants in an absurd situation. The system demands the performance of “authenticity,” “but in order to make the narrative recognisable and understandable according to the norms of the legal process, the singularity, and possibly the authenticity, of the account may be lost.”
Luker notes that this demand to perform tropes of refugee-ness often leaves claimants in impossible binds. For example, in the 1990s in several Western countires, applicants for asylum on the grounds of sexual orientation were presented with a paradox. If they were “‘too public’ about their sexuality—which is how gay men were generally characterised” that was taken as proof that it was safe to be openly gay in their country of origin. If they were “too private”—as lesbians are often characterised” it was “evidence that discretion provides a shield from persecution.” For Luker, the “queer performativity required of applicants in attempting to navigate the unpredictable permutations of refugee law, such as the expectation that they live closeted lives in order to minimise the risk of persecution, is characteristic of the subjectivisation of the refugee.”
The role of the interpreter
To make matters more complex, this performance of refugee-ness is almost always mediated by an interpreter. When the IRB member judges the demeanour of a claimant and the way they tell their story, the interpreter is an often-overlooked part of the equation. As Tess Acton writes, “refugees’ stories, the most important part of their claim, will be told and re-told through the voice of another person.”
The role of the interpreter in a refugee hearing can be fraught. For one thing, an incompetent interpreter can jeopardize an otherwise strong claim. Media reports have shown that this has happened on several occasions. But even when the interpreter is competent and striving to be ethical, their role is not straightforward.
According to the IRB’s handbook for interpreters, the interpreter’s role is to be “objective and impartial” and to simply mirror the claimant’s words and tone: “Whatever is said in one language should be interpreted faithfully and accurately into the other language using the exact equivalent meaning and structure.” The interpreter should “try to use the same tone and level of language as the person speaking.” This is never a neutral process. Even before the problems of translation and representing the claimant’s story, the interpreter guides the way that story is told: “You will have to control the person’s flow of speech, possibly by hand signs; otherwise, you may have difficulty recalling everything that the person says. You may have to interrupt when a person talks for too long and explain that you need time to interpret what has been said.”
Interpreter as Intercultural Agent
For Robert Barsky, reducing the interpreter in a refugee hearing to a tool performing “basic translation tasks” is a missed opportunity. Barsky envisions a role for the interpreter that recognizes that credibility is grounded in culture, arguing that the barriers to understanding refugees’ stories are about more than language. The system has “intrinsic biases against those most ‘different’ and, in many cases, most in need. The rich, urban, mobile and well-connected stand a much better chance of being ‘heard’ than the poor claimant from a rural background, no matter how much persecution the latter has suffered.”
Barsky argues that “interpreters should be recognized for what they are, namely agents of culture rather than transmitters of words, and should be specifically trained for this role and encouraged to participate more actively in hearings. Given the knowledge that interpreters generally have of the relevant countries of origin and of the process itself, they should be legally recognized as active intermediaries between the claimant and the adjudicating body, rather than as innocuous translating devices.” Barsky’s interpreters would have the latitude to assist the claimant with questions and ask for clarifications. In his vision, they could go so far as compensating for the claimant’s errors of judgement and adding context about the political, historical, and social situation in the claimant’s country and even “improving the narrative.”By simply telling a good story, an active interpreter could help a claimant reach a decision-maker who has been numbed into indifference by spending their days hearing tales of horror from around the world. Barsky concludes that “if the role of the interpreter is restricted to that of a translation device, then one of the few means of compensating for the deficiencies of the system is prevented from offering any genuine relief.”
This expanded role was swiftly rejected by many interpreters. Sabine Fenton, then-president of the New Zealand Society of Translators responded that “although Barsky’s views are well-meaning and show great compassion for the plight of the asylum seekers, they, however, open the door to dangerous and unsafe practices for the interpreter, instil an exaggerated faith by the claimant in the powers of the interpreter, and if accepted by the interpreting community, would set the profession back by light years.”
Fenton surveyed the portion of her membership working for the Refugee Status Appeals Authority and found “a clear rejection by the practitioners themselves” of an expanded role:
1. None of the respondents was prepared to violate their impartiality for either the professional or the client in the way Barsky proposed. The narrow role prescription was perceived and appreciated as a protection against a take over by either side and reinforced in them their own professionalism.
2. All respondents were identifiable within their communities and access to them at home was therefore possible. If the onus of establishing an appellant’s credibility were extended to them as Barsky suggested, interpreters feared the pressure of an exaggerated faith in them. It would not only impact on their professional performance but also threaten their private lives.
While Fenton acknowledges the challenges Barsky raises to the problem of interpretation, she maintains that the “support and help that Barsky seeks for Convention refugees must come from other sources.”
Interfering with Immediacy
If the system assumes that, in the immediacy of the face-to-face encounter, the claimant will have a fair chance to have their truth heard, that immediacy is nearly always interrupted by the presence of an interpreter. Katrijn Maryns describes how the interpreter is “deeply involved in the identity construction process. Throughout her rendition, it can be seen how
she interferes in the immediacy of the asylum seeker’s narration.”
In one frustrating example, Maryns analyzes the hearing of a Sierra Leonean man seeking asylum at the Office of the Commissioner General for Refugees and Stateless Persons in Brussels. In this hearing, his vivid description of brutal sexual violence is interpreted euphemistically and, in a way that distances those in the room from his voice. From a harrowing first person account, an “objective” and “neutral” report is produced. The claim is finally rejected because the applicant brought “insufficient specific elements that demonstrate a real, personal and systematic persecution.”
Maryns writes that, “Paradoxically enough, the application is rejected on the basis of absence of exactly those elements (details of personal involvement and threat) that were originally there but that have been filtered in the course of the entextualisation process.” The process filters out significant elements of the personal narrative while making the filtering process itself “largely invisible in the eventual evaluation of the case.”
For Maryns, when something like sexual violence is at issue in the asylum hearing, “language can hardly be expected to act as a neutral medium of information processing.” Rather, “the communication of a taboo subject affects the interactional dynamics of the asylum interview, which translates in vagueness and ambiguity at the levels of lexicon, pragmatic-narrative style and subject positioning.”
Maryns offers several explanations for the why the interpreter may have given a softer, distancing version of the asylum seeker’s story:
It could be argued that by reducing the asylum seeker’s direct lively narration – first person, direct reported speech and informal ways of speaking – to the level of indirect reporting – third person, indirect reported utterances and more formal ways of speaking – the interpreter is deeply implicated, whether consciously or unconsciously, in the process of anticipating institutional standards of appropriateness. The interpreter might want to align herself with the asylum officer, thereby acting as ‘an additional institutional gatekeeper’ for the asylum seeker. On the other hand, and at a much more subconscious level, the interpreter may consider it inappropriate to use sexually marked terms in a formal bureaucratic setting. Moreover, the brutal nature of the narrated events, and the fact that traditional gender roles are subverted – the man as the victim, not the perpetrator – may further explain her inclination to dissociate herself from the asylum seeker, reflected in her indirect speaking style. The interpreter’s dissociation could possibly also be related to the fact that, being a recognized political refugee from Sierra Leone herself, she may have experienced similar traumatic events.
Meaning, not only does the image of the refugee that law demands influence the story, the face-to-face encounter in the refugee hearing is almost always mediated by the presence of a third person who cannot simply translate. They, too, come with their own motivations, discomforts, and trauma.
Conclusion
Despite the issues with oral hearings, there are still excellent reasons to demand them. They provide a better opportunity for the claimant to respond to concerns. They can put a human face on paper documents. But there is no easy solution for the interruption of immediacy that an interpreter provides. If proposals like Barsky’s are too radical a shift in the role of the interpreter, perhaps a more modest improvement would be to recognize that pretending that the interpreter can be invisible in the process is unrealistic and harmful. A more urgent – and difficult – transformation, would be to change what Rehaag describes as the “administrative, political and cultural factors [that] have converged to construct a ‘culture of disbelief’ towards refugees in recent years.” One way to begin that shift would be to consider Luker’s suggestion that instead of beginning from a position of disbelief, “it is appropriate to begin with a rebuttable presumption of credibility, or truthfulness, on the part of the applicant seeking asylum.”
Further readings
Canada almost deported Iranian midwife over imprecise translation of a female body part by Adrian Humphreys
The Interpreter and the Canadian Convention Refugee Hearing: Crossing the potentially lifethreatening boundaries between “coccode-e-eh,” “cluck-cluck,” and “cot-cot-cot” by Robert F. Barsky
Refugee determination system: a practical guide by the Canadian Council for Refugees
‘I Simply Do Not Believe’: A Case Study of Credibility Determinations in Canadian Refugee Adjudication by Sean Rehaag
Updated and all links accessed on May 3, 2019
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