Determining Asylum Applicants’ Credibility

Since asylum applicants often lack documentary or witness evidence of persecution that led them to flee their countries of origin, their own statements—both written and oral—are of utmost significance in adjudicators’ decisions to grant or deny their claims. Whether applicants are found to be credible, and hence their asylum claims acceptable, depends on how consistent, plausible, and coherent their statements appear to the decision maker. Vogl’s monograph makes a monumental contribution to interdisciplinary scholarship on the shortcomings of credibility assessments during refugee status determination hearings, while poignantly illustrating the need for reforms.

Scholarly Critiques of Credibility Criteria: Adjudicative Discretion, Refugee Trauma, and Hardening of Borders in the Global North

For years, scholars and practitioners across the Global North have critiqued credibility assessments for both their standards and practices, and have bemoaned the inherent difficulties—compounded by cultural, psychological, and gender-based factors—in proving credibility through first-person oral testimony (for example, de Bruine Reference de Bruïne2023; Noll Reference Noll2005; Ramji-Nogales Reference Ramji-Nogales2009; Rousseau Reference Rousseau2005; Kneebone Reference Kneebone1998). Insights from psychology and psychiatry have further exposed how credibility criteria are at odds with contemporary scientific understandings of first-person testimony and of how memory works (for example, Herlihy and Turner Reference Herlihy and Turner2009; Evans Cameron Reference Cameron2010). Since the definition of a “refugee” rests on the experience of past persecution or fear of future persecution, asylum applicant testimony inherently centers on traumatic events and atrocities. Trauma disrupts memory formation, knowledge retention, and the ability to render past events in a coherent, chronological structure (LaCapra Reference LaCapra2014), which is often exacerbated due to victims’ sense of shame (Spijkerboer Reference Spijkerboer2013). Notably, both international and various domestic refugee-determination guidelines openly acknowledge that asylum applicant testimony cannot be assessed against the usual understanding of credibility (for example, Administrative Appeals Tribunal 2015; Immigration and Refugee Board 2004; UNHCR 2013; U.S. Dep’t of Justice 2011). The applicant’s ability to prove their credibility gets further undermined due to decision makers’ subjective,Footnote ¹ culturally specific, raced, and gendered understandings of the world, exacerbated by the significant evidentiary discretion afforded during Refugee Status Determination (“RSD”)Footnote ² proceedings. Despite such widely recognized problems, RSD decision makers across the Global North have continued to demand that applicants demonstrate traditional indicia of credibility.

Barriers to having asylum applicants’ testimonies recognized as credible are part and parcel of the ever-expanding hardening of borders by the Global North, as the 1951 UN Refugee Convention signatoriesFootnote ³ continue to limit or avoid their responsibilities under international refugee law by implementing new and more stern methods of deterrence and exclusion, through both extra-territorial migration controls and internal processes (such as fast-tracking asylum applications, limiting appeals and judicial review of negative administrative determinations, and reducing or eliminating government-funded legal aid to applicants) (see, generally, O’Sullivan and Stevens Reference O’Sullivan and Stevens2017). These borderings intersect with populist politics about “bad” and “undeserving” migrants, such as bogus refugees and economic migrants masquerading as refugees, propagated by Western media, the public, and—not infrequently—mainstream politicians, through discourses often shrouded in Orientalist, racialized, and gendered tropes (see, generally, Tuitt Reference Tuitt1996; Chimni Reference Chimni1998; Razack Reference Razack2000).

Vogl’s book moves beyond such RSD-specific and general policy-based critiques to offer a much-needed intervention that focuses on decision makers’ narrative expectations and hindrances imposed on applicants’ oral testimony to further expose the dysfunction, arbitrariness, and devastating injustice inherent in credibility determinations made within RSD processes. Through a close analysis of fifteen oral testimonies, Vogl interrogates how applicant oral testimony gets presented, and then tested and challenged by decision makers, who serve a gatekeeping role in excluding applicants who are not deemed by them to be genuine. Ultimately, her book poignantly and compellingly shows the intrinsic impossibility of testing credibility through applicants’ oral testimony.

Law and Literature, Power and Performativity

Vogl’s insightful research is astutely framed within “law and literature” scholarship, which has explored the role not only of language generally but more specifically, of narrative and storytelling within the law, especially in terms of how meaning and authority are attributed and understood (see, generally, Brooks and Gewirtz Reference Brooks and Gewirtz1998). Concerned with who is allowed to speak and how they are expected to speak, and with exposing the inherent ideologies and inequalities within legal narratives, this theoretical approach intersects with other critical approaches to law, such as critical race, feminist, Indigenous, and outsider jurisprudence (for example, Matsuda Reference Matsuda1989; Q’un Q’un Xiien et al. Reference Q’un Q’un Xiien2019), as well as with interdisciplinary methodologies such as critical discourse analysis,Footnote ⁴ all of which seek to reveal how law is actually created, interpreted, and applied in practice; how certain voices and viewpoints are undermined, disciplined, silenced, or not recognized; and how legal discourses reveal racialized and othering tropes, reproducing inherent power asymmetries between actors.

Language is power, and law and language have a symbiotic relationship. Legal rhetoric relies on reasoning and persuasion methods that are traditionally associated with literary texts. To maintain its legitimacy and authority, and the false appearance of neutrality and determinacy, however, the law denies its literary qualities and uses narrative modes that are less transparent than in texts designated as literature (see, generally, Goodrich Reference Goodrich2013; Boyd White 1985). Although personal narratives have been celebrated by some law-and-literature scholars for being emancipatory and liberating, certain scholars within the field have disrupted such views. Driven by majoritarian, Western, white ways of thinking, understanding, seeing, and talking, the Anglo-Eurocentric narrative format—with roots in a novel-writing genre that came to prominence during the European Enlightenment—has been prioritized within law’s narratives. Scholars of the use and function of narrative within asylum law have exposed how the RSD process tests applicants’ performative skills and linguistic abilities, ultimately inhibiting discovery of truth and disadvantaging applicants from accessing refugee status (for example, Barsky Reference Barsky1994; Maryns and Blommaert Reference Maryns and Blommaert2001; Zagor Reference Zagor2014). Applicants’ credibility assessment is a key feature of the process, and is considered the “most intensely narrative mode of legal adjudication” (Millbank Reference Millbank2009). Vogl’s meticulous and enlightening work builds upon and greatly enriches such scholarship.

How Asylum-Applicants’ Voices Get Restrained During Oral Testimony

Vogl’s central argument is that RSD decision makers expect applicants to present their oral testimonies in a prototypical narrative form, while at the same time actively impeding applicants’ capacity to do so. Specifically, Vogl exposes how adjudicators demand that applicants’ oral testimonies about life events that led them to apply for asylum conform to the Western narrative format. This expectation is not required by relevant laws or policies, nor does it appear to be an ad hoc fluke of individual decision makers. Notably, applicants in her study were expected to comply with the “stock story” of becoming a refugee, composed of a linear trajectory connecting departure decision, flight, arrival in the reception country, and resolution through promptly applying for asylum and expending efforts to integrate into the host country. This narrative expectation, albeit unarticulated by adjudicators, draws upon the plot structure of realist novels, which embodies the model of modern Anglo-European narrative form (see, generally, Slaughter Reference Slaughter2007), and which demands narrative closure and narrative causality. Fundamentally, it also presupposes an applicant, as a protagonist in her own story, to be rational, unitary, and self-conscious, and to exercise free agency and take decisive actions (see, generally, Fernandes Reference Fernandes2017). Meanwhile, this stock story diverges from the lived reality of persecution and flight, and from how anyone makes decisions. Refugees’ life events, recollections, and retellings of their experiences do not conform to such narrative expectations, not only making any pretensions about searching for truth through RSD hearings fictitious, but also gravely disadvantaging applicants in their ability to prove that their claims are true and worthy of refugee protection.

Moreover, in Vogl’s study, adjudicators would interject their own counter-narratives—driven by majoritarian, normative modes of knowing, thinking, and being—to explain applicants’ motivations and actions. Despite the superficially non-adversarial setting, applicants were then expected to explicitly refute these alternative interpretations of how events should have unfolded in the applicants’ lives were they to be credible. Decision makers would also make it more difficult for applicants to comply with expectations for narrative continuity by disrupting their oral testimony through interjections and questions, oftentimes unpredictable, idiosyncratic, disjointed, impulsive, and closed-ended, and more often intended to test facts—including minute details, and precise time frames—rather than to help establish them. In effect, applicants tended not to be able to present their life stories and asylum claims in full. Adjudicators also expected applicants not only to narrate their own exact reasons for actions they undertook years ago and oftentimes in life-or-death situations, but also to be omniscient regarding other actors’ precise private thoughts and motivations, including those of their persecutors. More generally, decision makers’ subjective expectations and discretion were clear throughout the hearings observed by Vogl. Although, in theory, the discretion afforded to adjudicators—compounded by procedural flexibility in the asylum hearing context—can be a plus in facilitating recognition of applicant-specific circumstances of persecution, Vogl demonstrates that in the hearings she had observed, such discretion was consistently used to disadvantage applicants, contributing to the Global North’s deterrent asylum policies and expansive borderings.

Expanding Methodological and Theoretical Boundaries

Vogl’s study is based on a detailed, qualitative analysis of fifteen asylum applicants’ oral hearings, seven of which she quotes at length in her book. She studied some of them through participant observation of live hearings, others by reviewing audio recordings, and some through the combination of both approaches. Although participant observation methodology has been primarily used in anthropological and sociological fieldwork, it is increasingly being used by legal researchers to observe events such as court hearings (Conley and O’Barr Reference Conley and O’Barr1990). Vogl’s astute treatment of the hearings she had observed illustrates the great value of this methodology to critical legal scholars.

All the hearings in Vogl’s project took place between 2012 and 2015, before either the Immigration and Refugee Board (“IRB”) in two locations in Canada or the Refugee Review Tribunal (“RRT”)Footnote ⁵ in two locations in Australia. For each of the fifteen hearings, the author also had access to resultant written decisions. The applicants whose hearings Vogl examined for this project were recruited in partnership with an Australian refugee legal service and with UNHCR Canada, as well as in collaboration with lawyers representing applicants. As Vogl herself acknowledges, the applicants captured by this project represent a narrow subset of asylum applicants who have access to high-quality legal assistance. Vogl employed broad and open criteria in determining which hearings to include, requiring that the applicant had applied for protection and that their application involved a full hearing. The countries of origin and specific legal claims did not influence this selection. Although this was not a random sampling process, it was appropriate given how novel and exploratory Vogl’s research is, and in light of her focus being on investigating the nature of the oral hearing, rather than its substance. Notably, Vogl’s assembling of her dataset is a remarkable feat in itself. Although the dataset used in this project might at first seem limited, it must be contextualized within the pragmatic difficulties prevalent across Global North jurisdictionsFootnote ⁶ in accessing executive and administrative refugee-status decision making. Such hearings are generally not open to the public, and only a minority of decisions become reported.

Vogl’s qualitative analysis of oral testimony was driven by grounded theory, which led her to develop themes that serve as the basis for each of the substantive chapters in the book. Although grounded, inductive method of analysis presents inherent risks of cherry-picking and bias, given how unexplored oral testimony has been in this context, the use of grounded theory here is commendable, in addition to being very much in line with the book’s theoretical approach. Vogl successfully demonstrates the incredible value of placing the conduct of the oral hearing at the center of studies of credibility assessment within the RSD context. Her method is made more rigorous through the deep and multi-faceted contextualization of her findings. Notably, she seamlessly blends portions of hearing transcripts, situated within individual applicants’ unique factual backgrounds, while demonstrating an impressive command of an interdisciplinary array of writings on theory, methodology, and adjudicative procedure, and a nuanced understanding of relevant international and domestic legal frameworks and their development.

Drawing on theoretical insights of law-and-literature, Vogl approaches the narrative form expected of asylum applicants’ oral testimonies as a culturally specific version of storytelling, which serves as a tool of exclusion by supporting decision makers’ differentiation between “deserving,” legitimate refugees, and those who are unacceptable. In the process, she critiques law-and-literature perspectives that present storytelling and narratives as distinct from legal discourses or as inherently disruptive of the law’s authority.

Moving Forward

Although no monograph can engage with all queries that the author’s research provokes, greater engagement with some details about Vogl’s research process and the positioning of her work would have shed further light on this impactful and much-needed project. For one, although, when choosing potential participants, the Australian partner organization considered the effect that her presence would have had on live hearings, and Vogl herself acknowledges that, given the small size of the hearing rooms and being closed to the public, the atmosphere would change with the addition of even one more attendee, more self-reflection about how her mere passive presence at some of the hearings might have affected the dynamics of the hearing would have been welcomed. Whereas Vogl discusses the co-production of applicants’ oral testimony through interpreters, lawyers, and adjudicators involved in the hearings, her presence likely also affected how oral testimony was provided by the applicants and how it was tested by the adjudicators. (It is possible that Vogl did indeed engage in this exercise, although she did not fully document it in the book.) Moreover, listening to audio recordings is fundamentally a different exercise than observing live hearings, with gestures, tones, and pauses not adequately captured through the former method. Reflections on this challenge and on how Vogl was nevertheless able to arrive at coherent findings by drawing upon these diverse formats would have been helpful to make her arguments even more compelling.

Engaging in a study of multiple jurisdictions always presents a unique set of challenges, as well as opportunities for expanding substantive, theoretical, and methodological insights. Vogl explicitly states that she does not adopt a formally comparative methodology, and, instead, she sought to explore similar demands for narrative format across comparable jurisdictions where applicants’ oral testimony and credibility assessment thereof constitute core elements of the RSD process. While she pays sensitive attention to differences in law, practice, and procedures between Australia and Canada, greater engagement with the different functions of adjudicators in the two settings would have made the work more robust. Although the single administrative decision makers in both jurisdictions are required to determine refugee claims on the merits and in full, including through directly questioning applicants’ oral evidence, and both IRB and RRT proceedings represent the final stage where applicants present oral testimony before adjudicators empowered to make findings of both law and fact, the IRB in Canada makes a first-instance determination of asylum claims, whereas the RRT in Australia conducted de novo administrative reviews of initial negative decisions. One wonders how these differences in context might have influenced hearings dynamics in the two settings.

The above observations in no way detract from the impact of Vogl’s monograph, which should serve as a much-needed impetus for similar research to be conducted in other Global-North jurisdictions. Indeed, Vogl skillfully contextualizes her findings within the broader context of politics and policies in the Global North that have been increasingly designed to deter and punish refugees, steeped within a broader “culture of disbelief” (Souter Reference Souter2011) and “culture of suspicion” (Bohmer and Shuman Reference Bohmer and Shuman2018). Her work is instructive to how credibility assessments are made in other jurisdictions, including within the context of the UK’s hostile environment policies, and against the backdrop of increasing crimmigration efforts in other jurisdictions, such as the EU and the USA (see, for example, Gatta Reference Gatta2020; Hernandez Reference Hernandez2022).

This monumental work should be read and discussed widely. In addition to having much to offer to law-and-literature scholars and to critical legal scholars who explore outsider storytelling, Vogl’s book constitutes an indispensable reading for teachers, scholars, policymakers, asylum adjudicators, and practitioners of asylum law in the Global North and for human rights scholars more generally. Notably, when asylum-applicant testimony is judged based on (majoritarian, Western) narrative criteria, such expectations are not made explicit to the applicants. Representatives working with asylum applicants must make the criteria explicit to their clients when preparing them for merit hearings. Remarkably, Vogl demonstrates that certain applicants did offer resistance by challenging adjudicators’ counter-narratives and assumptions. Practitioners working with applicants must seize upon that glimmer of hope, helping their clients know what to expect and how to resist it, while ensuring that their written submissions comport with the stock story that adjudicators expect. One is left disheartened, however, by the fact that unrepresented applicants are even less likely to become privy to such insights. More generally, by adding a new and powerful perspective to an already long line of credibility assessment critiques, Vogl’s study offers a poignant and heart-wrenching illustration of why reforms are desperately needed if the Refugee Convention is to remain more than an empty shellFootnote ⁷.