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Asylum Adjudication, Mental Health and Credibility Evaluation

Published online by Cambridge University Press:  24 January 2025

Jill Hunter ,
Linda Pearson ,
Mehera San Roque  and
Zac Steel
Jill Hunter
Affiliation:
Faculty of Law, UNSW, Australia
Linda Pearson
Affiliation:
Faculty of Law, UNSW, Australia
Mehera San Roque
Affiliation:
Faculty of Law, UNSW, Australia
Zac Steel
Affiliation:
Psychiatry Research & Teaching Unit, School of Psychiatry, UNSW, Australia
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Abstract

This article examines the central role that credibility assessment plays in refugee determinations. It draws on the authors' own empirical study, Tales of the Unexpected, to display the complex ways in which applicants' poor mental health can affect their capacity to present a 'coherent and plausible‘ account of their experiences. The authors then explore the significant issues arising from the tendency revealed in the Tales study for decision makers to dismiss expert opinions expressed in reports tendered by applicants from psychologists specialising in cross-cultural mental health assessment. For example, consider the decision maker who observed that

[The] psychologist reported that the Applicant was suffering from post-traumatic stress disorder and depression and that this psychological state was likely to affect his ability to answer questions at an RRT hearing …. [Nevertheless] [Mr S] did not display any difficulty in understanding or answering questions. … He [appeared] alert, engaged, and is clearly an intelligent man. I do not accept that he had any difficulty in understanding proceedings or answering questions.

Type
Research Article
Information
Federal Law Review , Volume 41 , Issue 3 , September 2013 , pp. 471 - 495
Copyright
Copyright © 2013 The Australian National University

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Footnotes

*

We acknowledge and remember Ronnit Redman, whose intellectual passion and drive was the instigator for our involvement in this project. Her untimely death on 7 January 2007 prevented her from seeing the outcome of her work. We also acknowledge with gratitude the 73 applicants who gave consent for the researchers to have access to reports and decision records, and we thank the decision makers and psychologists whose suggestions and feedback have been invaluable.

References

5 From the case of Mr S. Also noted in Hunter, Jill et al, Tales of the Unexpected & Refugee Status Decision-Making: Managing and Understanding Psychological Issues among Refugee Applicants (Report and Resources Manual, Faculty of Law and Psychiatry Research and Teaching Unit, University of New South Wales, 2010).Google Scholar Referred to in this article as the Tales study. The Tales study was supported with the financial assistance of the Faculties of Law and Medicine, UNSW and the Law and Justice Foundation of NSW. The study stemmed from an academic research study (funded by the National Health and Medical Research Council (NHMRC), conducted by the Psychiatry Research and Teaching Unit (PRTU) into the mental health of asylum seekers and their treatment during the refugee determination process.

6 See Hunter et al, above n 5. For a discussion on the link between the mental health findings and the outcomes of the decision making process see Tay, Kuowei et al, ‘A Mixed Method Study of Expert Psychological Evidence Submitted for a Cohort of Asylum Seekers Undergoing Refugee Status Determination Within Australia’ (2013) 98 Social Science & Medicine 106.CrossRefGoogle ScholarPubMed In addition, two previous publications have reported the key mental health findings from the cohort of 73 asylum seekers on which the Tales study focused: Silove, Derek et al, ‘The Impact of the Refugee Decision on the Trajectory of PTSD, Anxiety, and Depressive Symptoms among Asylum Seekers: A Longitudinal Study’ (2007) 2 American Journal of Disaster Medicine 321Google ScholarPubMed; Silove, Derek et al, ‘Torture, Mental Health Status and the Outcomes of Refugee Applications Among Recently Arrived Asylum Seekers in Australia’ (2006) 2 International Journal of Migration, Health and Social Care 4.CrossRefGoogle Scholar

7 Significantly, and as discussed further below, there was correlation between the prevalence of symptoms, or sequalae, of trauma and the success of an applicant's claim. See Kuowei Tay et al, above n 6.

8 See, eg, the discussion in Noll, Gregor, ‘Re-mapping Evidentiary Assessment in Asylum Procedures’ in Noll, Gregor (ed), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff Publishers, 2005) 1.CrossRefGoogle Scholar See also Kagan, Michael, ‘Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination’ (2003) 17 Georgetown Immigration Law Journal 367Google Scholar; Sweeney, James A, ‘Credibility, Proof and Refugee Law’ (2009) 21 International Journal of Refugee Law 700, 701CrossRefGoogle Scholar (noting that the term is both, ‘conceptually elusive’ and ‘adjudicatively influential’); Anker, Deborah and Muller, Matthew, ‘Book Review: Explaining Credibility Assessment in the Asylum Procedure’ (2007) 19 International Journal of Refugee Law 599.CrossRefGoogle Scholar Both the centrality of credibility assessment and the need for more research in this area is noted in the recent and substantial report, Beyond Proof: Credibility Assessment in EU Asylum Systems (UNHCR and European Refugee Fund of the European Commission, UNHCR, May 2013) 17, 28 ('Beyond Proof’).

9 For the purposes of this discussion it is not necessary to assume that the applicant has suffered trauma in a context that is directly relevant to their claim for asylum. In particular the effects of making the claim itself, as well as in some cases prolonged detention, can themselves be the causal factor. See the articles by Silove et al, above n 6.

10 The Convention Relating to the Status of Refugees, GA Res 429 (V), UN GAOR, 5th sess, 325th plen mtg, UN Doc A/RES/429(V) (14 December 1950) as amended by the Protocol Relating to the Status of Refugees, GA Res 2198 (XXI), UN GAOR, 21st sess, 1495th plen mtg, UN DOC A/RES/21/2198(XXI) (16 December 1966). A refugee is defined as someone who, owing to a well-founded fear of being persecuted for reasons of race religion, nationality, membership of a particular social group or political opinion, is outside the country of nationality and is unable or unwilling to avail themselves of the protection of that country.

11 Section 36(2A) provides that a person will suffer ‘significant harm’ if they will be arbitrarily deprived of life; the death penalty will be carried out on that person; or the person will be subjected to torture, to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. Section 36(2B) qualifies what is taken to be a ‘real risk’ by providing that a person is taken not to satisfy the criterion in s 36(2)(aa) in certain circumstances, including having committed a serious non-political crime, or security reasons.

12 McAdam, Jane, ‘Australian Complementary Protection: A Step-by-Step Approach’ (2011) 33 Sydney Law Review 687.Google Scholar

13 For that reason in this article we have generally used the term ‘refugee’ in relation to the decision making process, while acknowledging that the circumstances that may give rise to a finding of a real risk of significant harm may well generate the types of mental health issues reflected in the applications that formed part of our study.

14 The primary reference point for departmental delegates is the ‘Procedures Advice Manual’ (known as PAM 3). In addition, since 2007 Departmental decision makers are guided by the Administrative Review Council's Best-Practice guides. There are five Guides, the most relevant being Guide 3: Decision Making: Evidence, Facts and Findings published in August 2007. See the website of the Attorney-General's Department Administrative Review Council <http://www.arc.ag.gov.au>.

15 The RRT was established in 1993 as an external independent merits review tribunal. Not all asylum decisions have been reviewable by the RRT, in particular, where a person entered Australia by boat. From 2008, the Government established an alternate pathway for review of adverse decisions of officers of the Department for applications made by persons who entered Australia at an excised offshore place, in the form of Independent Merits Review, and later Independent Protection Assessment, conducted by independent contractors rather than the RRT. The cases the subject of the Tales study were all determined when review by the RRT was the available external merits review process.

16 Migration Act 1958 (Cth) s 424 ('Migration Act’).

17 Ibid s 420(2)(b).

18 Ibid ss 425, 427(7).

19 Ibid s 415.

20 Migration Act s 474 attempts to limit judicial review but it does not prevent judicial review of decisions made under the Migration Act affected by jurisdictional error. The history of legislative attempts to limit or preclude judicial review of migration decisions is traced in Gageler, Stephen, ‘Impact of Migration Law on the Development of Australian Administrative Law’ (2010) 17 Australian Journal of Administrative Law 92.Google Scholar In addition to judicial review remedies, an applicant who is unsuccessful at the RRT can apply to the Minister who can substitute a decision more favourable to the applicant (Migration Act s 417: see Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31).

21 See Alderton, Matthew, Granziera, Michael and Smith, Martin, ‘Judicial Review and Jurisdictional Errors: The Recent Migration Jurisprudence of the High Court of Australia’ (2011) 18 Australian Journal of Administrative Law 138Google Scholar; Aronson, Mark and Groves, Matthew, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013)Google Scholar [1.100]-[1.140]; Leeming, Mark, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2012) ch 3.Google Scholar

22 See Minister for Immigration and Citizenship v SZJSS (2010) 273 ALR 122.

23 Rousseau, Cécile et al, ‘The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board’ (2002) 15 Journal of Refugee Studies 43, 43CrossRefGoogle Scholar, citing Peter Showler, Chair of the Canadian Immigration and Refugee Board. Rousseau et al also point out that in addition to the challenge of deciding a matter of immense importance to the applicant in challenging circumstances, there is also the danger of secondary emotional tolls on applicant and decision maker alike. As Rousseau et al note, decision makers are vulnerable to vicarious traumatisation through exposure to accounts of trauma, which they may manifest in avoidance, denial, or trivialisation of extreme events.

24 Glass, Arthur, ‘Subjectivity and Refugee Fact-Finding’ in McAdam, Jane (ed), Forced Migration, Human Rights and Security (Hart Publishing, 2008) 213.Google Scholar In some cases of course the void may have been caused, in part, by the applicant, who has destroyed identity documents, or relied on forged documentation in order to travel to the country in which protection is claimed. Australia has not yet joined the UK in requiring decision makers to take into account, with a damaging effect on credibility, certain kinds of behaviour designed or likely to conceal information or mislead, for example, destruction of a passport: Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (UK) s 8.

25 See discussion in Noll, above n 8, and Zahle, Henrik, ‘Competing Patterns for Evidentiary Assessments’ in Noll, Gregor (ed), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff Publishers, 2005) 13CrossRefGoogle Scholar and Sweeney, above n 8. Policy initiatives, such as Beyond Proof, above n 8, recognise the need to provide structured guidance to decision makers in relation to credibility assessment across both of these dimensions. While Beyond Proof addresses a range of issues, including cross cultural communication and the difficulties attendant on reliance on traditional credibility cues it does not deal with the use of forensic or expert evidence in any detail and does not address directly the role mental health expertise might play in an individual case.

26 (2003) 128 FCR 553.

27 Groves, Matthew, ‘Do Administrative Tribunals Have to be Satisfied of the Competence of Parties before Them?’ (2013) 20 Psychiatry, Psychology and Law 133.CrossRefGoogle Scholar

28 Ibid.

29 The discussion in Herlihy, Jane, ‘Evidentiary Assessment and Psychological Difficulties’ in Noll, Gregor (ed), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff Publishers, 2005) 123CrossRefGoogle Scholar, focuses on the ability of the claimant to present their evidence. Herlihy considers the impact of discrepancies in applicants’ accounts on how decision makers deal with the evidence before them. She notes that PTSD as a diagnosis may function as an indicator of truth of the claim itself.

30 Groves, above n 27.

31 See 3.1-2 of the International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection Claims under the EU Qualification Directive: Judicial Criteria and Standards (IARLJ, 2013)Google Scholar that emphasise that the report can point to correlations, or consistencies, between the symptoms observed and the applicant's account.

32 In relation to the evidentiary burden on applicants, see also Norman, Steve, ‘Assessing the Credibility of Refugee Applicants: A Judicial Perspective’ (2007) 19 International Journal of Refugee Law 273.CrossRefGoogle Scholar

33 (2004) 214 ALR 264, 269 (citations omitted).

34 See, eg, Decision Making: Evidence, Facts and Findings (Best Practice Guide 3, Administrative Review Council, Commonwealth of Australia, 2007)Google Scholar and NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264. The extent of any obligation to inquire is contested: see Groves, Matthew, ‘The Duty to Inquire in Tribunal Proceedings’ (2011) 33 Sydney Law Review 177Google Scholar; Bedford, Narelle and Creyke, Robin, Inquisitorial Processes in Australian Tribunals (Australian Institute of Judicial Administration, 2006Google Scholar); however it does not extend to an obligation to obtain a medical report at the request of the applicant: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. On the nature of non-adversarial tribunals generally, see Creyke, Robin, ‘Where Do Tribunals Fit into the Australian System of Administration and Adjudication?’ in Huscroft, Grant and Taggart, Michael (eds), Inside and Outside Canadian Administrative Law (University of Toronto Press, 2006) 81.Google Scholar For an international perspective on the complexities of according procedural fairness in refugee decision making fora, and an account of some of the early empirical work in this area, see Anker, Deborah, ‘Determining Asylum Claims in the United States: A Case Study on the Implementation of Legal Norms in an Unstructured Adjudicatory Environment’ (1992) 19 New York Journal of Law and Social Change 433.Google Scholar

35 Glass, above n 24. See also UNHCR, Note on Burden and Standard of Proof in Refugee Claims (16 December 1998) <http://www.unhcr-centraleurope.org/pdf/resources/legal-documents/unhcr-handbooks-recommendations-and-guidelines/unhcr-note-on-burden-and-standard-of-proof-in-refugee-claims-1998.html>.

36 See Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 435 (Gleeson CJ, Gaudron and Gummow JJ). Discussed also in Norman, above n 32.

37 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, 435 (Gleeson CJ, Gaudron and Gummow JJ). See also the extracts and discussion of the Tribunal member's treatment of the applicants’ evidence in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264, 269-282.

38 This point is implicit in discussion of the vicarious effects that repeated exposure to narratives involving traumatic detail may have on decision makers: Rousseau et al, above n 23. More broadly, there is a growing body of literature examining the role of emotion in legal processes, including in the areas of demeanour expectations and legal decision making: see, eg, Bandes, Susan A and Blumenthal, Jeremy A, ‘Emotion and the Law’ (2012) 8 Annual Review of Law and Social Science 161.CrossRefGoogle Scholar

39 See discussion below on the significance of consistency in accounts as a means of assessing the credibility of those accounts. One finding of our study was that an applicant's representatives occasionally actively ‘outsourced’ the gathering of detailed information about the applicant's claim to the mental health professionals’ interviews. This practice too can generate problems in terms of the sequence and timing of disclosures.

40 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR, 1997) [196].Google Scholar

41 See, eg, UK Border Agency, Considering the Protection (Asylum) Claim and Assessing Credibility (15 March 2011) UK Border Agency <http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyguidance/consideringanddecidingtheclaim>. See also discussion in Millbank, Jenni, ‘The Ring of Truth: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations’ (2009) 21 International Journal of Refugee Law 1.CrossRefGoogle Scholar

42 It is important to note that the RRT Guidelines post-date the decisions the subject of the Tales study. Note also that the authors and their research colleagues have developed for decision makers, psychologists, applicants and their advisers detailed guidelines addressing the issues raised by the findings of the Tales Study: Hunter, Jill et al, Managing and Understanding Psychological Issues Among Refugee Applicants: Resources Manual and Guidelines for Best Practice (Faculty of Law and Psychiatry Research and Teaching Unit, University of New South Wales, 2013) available at <www.kaldorcentre.unsw.edu.au>.Google Scholar

43 This also includes a section in the Refugee Law Guidelines on Credibility Issues. All of these departmental policies and guidelines are contained within the Procedures Advice Manual (PAM3) available online via Legendcom.

44 Guidance on the Assessment of Credibility (MRT/RRT, Australia, 2009, updated 2012).

45 See Guideline 9.4 in relation to false documents. In relation to guidance offered in PAM3, note however that adverse inferences can be drawn is an applicant does not (or cannot) produce identity documents when requested. This inference is permissible under s 91W of the Migration Act 1958 (Cth) and was, ‘considered necessary to create incentives for protection visa applicants to retain documents of identity, nationality or citizenship'.

46 Guideline 7.3. The current version of PAM3 addresses delay in offering decision makers a number of factors they may wish to take into account in determining whether delayed disclosure has a negative impact on the credibility of the claim(ant) in s 10 of ‘Asylum Claims – Assessing Credibility’ (Legendcom <www.immi.gov.au>) and acknowledges that experiences of trauma may impact on an asylum seeker's behaviour.

47 Though as discussed below, the Australian and IARLJ guidelines have increased the detail of the potential effects of trauma on the capacity of the applicant to present their case effectively.

48 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR, 2nd ed, 1979) (available online at http://www.unhcr.org).Google Scholar

49 Plausibility may include an assessment of whether evidence is sufficiently specific, and whether it makes sense: see, Glass, above n 24. Plausibility is also relevant for assessment of whether a claim is ‘well-founded': in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court established that the fear of being persecuted is well founded (in the objective sense) if there is a ‘real chance’ of persecution. In explaining the ‘real chance’ test the High Court discussed that in order to establish a real chance a claim must be ‘plausible and substantial'.

50 Millbank, above n 41.

51 Noll and others point to the hybrid quality of much refugee decision making processes, see, above n 8.

52 In Australia, and regarding the fallibility of reliance on behavioural cues in credibility evaluation, courts have endorsed Lord Justice Atkin's remark from 1924 that ‘an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour': see, eg, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588, Kirby J at [88] (who notes, ‘The studies of experimental psychologists since that time have confirmed the danger of placing undue reliance upon appearances in evaluating credibility. Such studies were not available to the appellate courts when the rules of deference to the assessments of trial judges on questions of credibility were first written. They are available to us today.'; Abalos v Australian Postal Commission (1990) 171 CLR 167; Fox v Percy (2003) 214 CLR 118, See also the discussion in Good, Anthony, Anthropology and Expertise in the Asylum Courts (Glasshouse, 2007) 197CrossRefGoogle Scholar, citing Lord Justice Sedley's scepticism in relation to the revelatory potential of oral testimony.

53 See, eg, Mack, Kathy, ‘Continuing Barriers to Women's Credibility: A Feminist Perspective on the Proof Process’ (1993) 4 Criminal Law Forum 327CrossRefGoogle Scholar; Hunter, Jill, Cameron, Camille and Henning, Terese, Litigation: Evidence & Criminal Process (LexisNexis Butterworths, 2005) vol 2.Google Scholar The significance of contemporary critical and psychological literature is acknowledged in recent policy documents, such as Beyond Proof, above n 8, however, these stop short of addressing the significance of trauma in this context.

54 Hunter, Jill, ‘Battling a Good Story: Cross-Examining the Failure of the Law of Evidence’ in Roberts, Paul and Redmayne, Mike (eds), Innovations in Evidence & Proof: Integrating Theory, Research and Teaching (Hart Publishing, 2008) 261Google Scholar; Hunter, Cameron and Henning, above n 54, [15.7]. See also Byrne, Rosemary, ‘Assessing Testimonial Evidence in Asylum Proceedings’ (2007) 19 International Journal of Refugee Law 609.CrossRefGoogle Scholar

55 Sexual assault trials are typically seen as a significant site of fruitful inquiry and critique with many law reform initiatives removing some of the pernicious examples of stereotyping, such children’ and sexual assault complainants’ predisposition to untruthfulness and law's traditional privileging of spontaneous sexual assault complaint over delayed complaint.

56 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co ('The Palitana’) (1924) 20 Ll Rep 140, 152, quoted by Kirby J in State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, 617.

57 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, 618.

58 See Aronson and Groves, above n 21; Dauvergne, Catherine and Millbank, Jenni, ‘Burdened by Proof: How the Australian Refugee Review Tribunal has Failed Lesbian and Gay Asylum Seekers’ (2003) 31 Federal Law Review 299CrossRefGoogle Scholar; Kneebone, Susan, ‘Believable Tales: Credibility and Proving a Well Founded Fear of Persecution’ (Paper presented at the Migration, Mental Health & Human Rights Conference, Sydney, 2003)Google Scholar; Millbank, above n 41.

59 Kneebone, Susan, ‘The Refugee Review Tribunal and the Assessment of Credibility: An Inquisitorial Role?’ (1998) 5 Australian Journal of Administrative Law 78Google Scholar; Millbank, above n 41.

60 For example, the Herlihy study found that discrepancies within an individual's account were common; that the number of discrepancies increased with length of time between interviews; and that more discrepancies occurred in details peripheral to the account than in details central to the account: Herlihy, Jane, Scragg, Peter and Turner, Stuart, ‘Discrepancies in Autobiographical Memories - Implications for the Assessment of Asylum Seekers: Repeated Interviews Study’ (2002) 324 British Medical Journal 324.CrossRefGoogle ScholarPubMed

61 For a most comprehensive set of criteria and standards, see International Association of Refugee Law Judges, above 31.

62 Legal Services, Assessment of Credibility in Claims for Refugee Protection (31 January 2004) Immigration and Refugee Board of Canada <http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Pages/Credib.aspx>.

63 Ibid 2.3.7 (emphasis added).

64 See also, Gender Guidelines (Policy and Coordination Section, Migration Review Tribunal and Refugee Review Tribunal, 24 March 2012).

65 See, eg, discussion in Sabourin, Michel, “The Assessment of Credibility: An Analysis of Truth and Deception in a Multiethnic Environment” (2007) 48 Canadian Psychology 24 – 31.CrossRefGoogle Scholar This point is also discussed in Beyond Proof, above n 8, ch 3 as a necessary part of a multidisiplinary approach to the evaluation of credibility.

66 A further layer of complexity is, of course, generated by the fact that many of the interactions between the applicant and the decision maker (and indeed between the applicant and their representative or mental health professional) will be mediated via an interpreter. This mediation raises questions not only with respect to the effective communication of content, but also the underexplored impact of the presence of an interpreter on credibility assessments: see the very interesting study by Kolb, Waltraud and Pöchhacker, Franz, ‘Interpreting in Asylum Appeal Hearings: Roles and Norms Revisited’ in Russell, Debra and Hale, Sandra (eds), Interpreting Legal Settings (Gallaudet University Press, 2002) 26.Google Scholar

67 UK Border Agency, above n 41.

68 Herlihy, Scragg and Turner, above n 60.

69 Sellamuthu v Minister for Immigration and Multicultural Affairs [1998] FCA 1423.

70 Guidance addressing the assessment of credibility appears to have been first included in the Refugee Law Guidelines section of PAM3 with the edition issued on July 26 2005. Note also the discussion above the PVPAM (Protection Visa Procedures Advice Manual) and related Guidelines.

71 Migration Review Tribunal/Refugee Review Tribunal, ‘Guidance on the Assessment of Credibility’ (Guidance Paper, Australia, 2009) ('Credibility Guidance’) was originally issued in 2006, updated in 2008 and 2012

72 Ibid [2.5]. Additionally, the guidelines indicate that Members should make findings on credibility on the basis of ‘relevant and material facts’ and rather than drawing upon a Member's ‘subjective belief or gut feeling about whether an Applicant is telling the truth or not … [a] Member should focus on what is objectively or reasonably believable in the circumstances.’ Ibid [2.4].

73 Ibid [2.6].

74 (2005) 228 CLR 470, 475 [8].

75 Credibility Guidance, above n 72, [4.3] (emphasis added).

76 In addition, Migration Review Tribunal/Refugee Review Tribunal, ‘Guidance on Vulnerable Persons’ (Guidance Paper, 2009) 2 [2] includes the objective of ensuring that ‘the inherent dignity of vulnerable persons is recognised and respected’ during Tribunal processes. It chiefly offers procedural flexibility guidance to meet this objective.

77 Steel, Zachary, Bateman-Steel, Catherine R. and Silove, Derrick, ‘Human Rights and the Trauma Model: Genuine Partners or Uneasy Allies?’ (2009) 22 Journal of Traumatic Stress 358.CrossRefGoogle ScholarPubMed

78 ‘Trends in Displacement, Protection and Solutions: Eleven Years of Statistics’ [2011] UNHCR Statistical Yearbook ch 4.

79 We acknowledge that the sample size was small, however based on the use of a clustered-random sampling design of migration agents and legal representatives who represented refugee applicants throughout the decision making process, and demographic data reported in previous investigations which indicated that the sample was broadly representative of the asylum population making applications in Australia during that period, the Study obviated methodological constraints raised in previous research. The Study concluded with an incomplete set of decision records, and ultimately the sample of 45 cases (and 52 applicants) for which there were complete decision records reflected a non-representative bias towards failed applications.

80 Known at the time of the Study data collection by its former name, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA).

81 All interviews were undertaken in conjunction with accredited healthcare interpreters. Migration agents provided copies of the applicant's statement and any available supporting documentation. Participants’ responses were compared on key diagnostic measures using self-reports and responses from clinical interviews to avoid error arising from exaggeration of symptoms. The majority of the interviews for assessment were undertaken at a public psychiatric hospital in Sydney, but in some instances interviews were undertaken at the migration agent's office. Interviews were generally undertaken over several sessions with each session lasting appropriately two hours to ensure sufficient time for clarification of responses and questions.

82 It should be noted that a feature of protection decision making is that the numbers, and profiles, of applicants, and the range of source countries and conditions in those countries, varies significantly from year to year. This limits the value of comparisons based on statistics in understanding the decision making process, both at departmental and RRT level. In the years from which the decisions the subject of this study came, the overall rate at which the RRT set aside decisions made by departmental delegates varied from 12.1% (2001/2001), to 5.7% (2002/2003) to 12.7% (2003/2004). The proportion of decisions in favour of applicants has increased since then: in 2010/2011, 24% of the matters finalized were set aside and remitted to the department. The profile for particular source countries can vary significantly, depending both on the numbers of applicants and the conditions in that country: for example, in the years covered by the study, the set aside rate for applicants from Afghanistan varied from 61.6% in 2001/2002, to 32.2% in 2002/2003, to 89.8% in 2003/2004.

83 Tay et al, above n 6.

84 Ibid. A number of measures were used, including the Structured Clinical Interview for DSM-IV (SCID) to assess current major psychological disorders; the Harvard Trauma Questionnaire to assess exposure to traumatic experiences and resulting posttraumatic criteria as specified in DSM-IV; and the Hopkins Symptoms Checklist to assess symptoms of depression and anxiety. Note that from 2013, the current American Psychiatric Association's (APA) diagnostic and statistical manual is DSM-5.

85 Ibid 110. Dissociative symptoms were also correlated with negative decisions at the primary level. Delayed or partial disclosure was mentioned in decisions as a negative factor, but overall applicants with delayed disclosure had comparable outcomes with those that did not have partial or delayed disclosure.

86 Ibid 111.

87 Ibid.

88 Ibid 112.

89 The psychological literature relied on for this section is contained in the references to J Hunter et al, ‘Managing and Understanding Psychological Issues Among Refugee Applicants: Resources Manual and Guidelines for Best Practice’ (Resources Manual Faculty of Law and Psychiatry Research and Teaching Unit, University of New South Wales, 2013) 45–9 <www.kaldorcentre.unsw.edu.au>.

90 Ibid.

91 With a sample of 45 decision records.

92 See, eg, in relation to Mr S, the banner quote at the beginning of this article.

93 Audrey Macklin, ‘Truth and Consequences: Credibility Determination in the Refugee Context’ (Paper presented at The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary, Ottawa, Canada, October 1998) 139. See also findings in Deborah Anker's study, above n 34.

94 Coffey, Guy, ‘The Credibility of Credibility Evidence at the Refugee Review Tribunal’ (2003) 15 International Journal of Refugee Law 377CrossRefGoogle Scholar; Millbank, above n 41; Norman, above n 32.

95 Such as Dauvergne and Millbank, above n 58; Kneebone, above n 58; Millbank, above n 41.

96 Millbank, above n 41.

97 Baillot, Helen, Cowan, Sharon and Munro, Vanessa E., ‘“Hearing the Right Gaps“: Enabling and Responding to Disclosures of Sexual Violence within the UK Asylum Process’ (2012) 21 Social & Legal Studies 269CrossRefGoogle Scholar; Baillot, Helen, Cowan, Sharon and Munro, Vanessa E., ‘Seen but Not Heard? Parallels and Dissonances in the Treatment of Rape Narratives across the Asylum and Criminal Justice Contexts’ (2009) 36 Journal of Law and Society 195.CrossRefGoogle Scholar

98 Rousseau et al, above n 23.

99 As referred to earlier, the Rousseau study also exposed the risk to decision makers of vicarious traumatisation through over-exposure to trauma, which subsequently triggered a series of avoidance reactions, such as denial, cynicism, trivialisation of extreme events, and officers shunning away from the details of traumatic incidents, resulting in a lack of empathy with applicants’ experiences.

100 See Jill Hunter et al, n 89 above. These guidelines show how interdisciplinary cooperation can maximise the contribution of mental health reports and fair and accurate decision making.

101 In a forthcoming article, ‘Mental Health Expertise in Refugee Status Decision-Making: Judging or Caring?’ by Jill Hunter, Linda Pearson and Mehera San Roque.