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Multilingua

Journal of Cross-Cultural and Interlanguage Communication

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Volume 36, Issue 1 (Jan 2017)

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Negotiating narratives, accessing asylum: Evaluating language policy as multi-level practice, beliefs and management

Laura Smith-Khan
  • Corresponding author
  • Department of Linguistics, Macquarie University, c/- Building C5A, Sydney, New South Wales 2109, Australia
  • Sydney Law School, University of Sydney, Building F10 Eastern Avenue, Sydney, New South Wales 2006, Australia
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Published Online: 2016-03-04 | DOI: https://doi.org/10.1515/multi-2015-0072

Abstract

Theories of language policy increasingly emphasise focusing on the specific contexts in which language management occurs. In government settings, policy seeks to shape how individuals interact with officials. Australian asylum procedure is an area where policy aims at tight control. I examine how communication is managed in this setting, in which successful outcomes are so important. After reviewing the relevant policy documents, I explore the experiences of individual refugees and migration agents through a series of qualitative interviews. I consider the relationship between language management, beliefs and practice in this context and find that individual experiences in this setting can differ. This article demonstrates the impact of several agents in the co-construction of the refugee narrative, noting that while standardisation is institutionally valued, variation is inevitable. The findings suggest that outcomes depend on much more than just official policy.

Key: Asylum; refugee; Australia; language policy; language management; migration

1 Introduction

Asylum-seekers have long been a topic of great contention in Australia. Arrivals more than quadrupled between 2008 and 2013 1 and law and policy have become increasingly detailed and complex. While the issue is highly politicised, most public commentary centres on offshore processing, detention and other deterrent measures (Crock and Martin 2013), with policies governing asylum hearings receiving less attention. Given they generally lack documentary proof of persecution, applicants must construct an acceptable refugee narrative, making effective communication essential.

In this article I examine how communication is managed in Australian asylum procedures. I analyse official government and professional-body documents aimed at decision-makers, interpreters and migration agents. I then consider individual experiences, drawing on qualitative reflective interviews with refugees and migration agents.

Official policy aims to create a standard process, valuing uniformity. Yet, in reality there is plenty of scope for variety, given the dynamic nature of communication, and how the different participants all contribute to constructing the refugee narrative. Issues of power also come into play: while each participant’s beliefs and goals influence their role in negotiating the official refugee narrative, it is the government decision-maker who both steers its construction and assesses the final product.

Using an ethnographic approach, I map the complex language management occurring at both the “macro” and “micro” levels (see McCarty 2011a; Spolsky 2004, 2009). I combine a textual analysis of the “macro” official guidelines with a case study of the “micro” individual experiences of four Afghan asylum-seekers in their asylum interviews. I explore the influences and beliefs behind the various actors’ choices, and the impact they have on the co-construction of the refugee narrative. I consider whether the official guidelines are followed, and if there is room for variation while complying with these instructions. Ultimately I seek to determine whether this macro-level management takes all these considerations into account and thus ensures the fairness they claim to have as their goal.

2 Official policy and guidelines

Many existing laws, regulations and policies aim to restrict how people seek asylum. They closely control those responsible for processing applications, and other professionals involved. In Australia, this policy is developed at federal-government level, mostly within the Immigration Department.

2.1 The Australian protection regime: Managing asylum-seekers

Within the Australian protection regime, various official texts aim to control the language choices of the actors involved. Some are designed to implement explicit language policy; others have alternative aims, but nonetheless affect communication (following the approach in Cassels Johnson 2013: 128).

The Migration Act provides an avenue to seek asylum in Australia, enumerating eligibility criteria for a “protection visa” (Section 36), based on the refugee definition in the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). 2 The Minister appoints Immigration Department delegates, “case-officers”, to make decisions regarding applications and grant visas (Section 496). The Migration Regulations 1994 provide detailed guidance on processing applications, which is then explicitly set out in the extensive Procedures Advice Manual (DIMEA 1994–) (“PAM3”).

2.1.1 Approaching the immigration department

Applicants who enter Australia on another visa and wish to apply for protection complete and submit prescribed forms to the Immigration Department. They are encouraged to seek assistance from a migration agent or solicitor (PVPAM.6.4, PAM3 3). In Australia, both solicitors and other persons registered as migration agents can assist applicants by providing advice, preparing documents and submissions and attending asylum interviews and hearings.

Applicants must provide extensive details about their identity, family, (past and present) residences, employment, education and travel history, and explain how they meet the Refugee Convention refugee definition and “wherever possible, provide dates, locations and any evidence in respect of any events/occurrences” (Form 866, Part C). They then usually attend an interview, where their case-officer questions them further. 4 These procedural requirements constitute language management, as the Immigration Department seeks to control how asylum-seekers interact with case-officers and communicate their persecution claims (as in other countries: eg Maryns 2006).

2.1.2 Merits and judicial review

Unsuccessful applicants can appeal to the Administrative Appeals Tribunal (“AAT”). They must provide a written submission outlining the merits of their case, and are generally invited to appear before a Tribunal Member to answer further questions. The AAT considers the merits and, where appropriate, orders the Immigration Department to change its decision (PVPAM.68.3).

If the AAT upholds the Immigration Department’s decision, there is some scope for judicial review (see explanation in Crock and Berg 2011), despite attempts by successive governments to restrict this (as described by Cane and McDonald 2009; Crock and Martin 2013). Courts cannot consider the merits of these cases. They are limited to deciding whether the AAT acted within its power and fulfilled its legal obligations in arriving at its decision. If not, they usually order the AAT to re-make the decision in an appropriate manner. 5 This reflects administrative law, in which courts play a supervisory role; ensuring government administrative decision-makers act within their powers and afford applicants procedural fairness (as explained in Cane and McDonald 2009; Crock and Martin 2013).

2.2 Policy managing case-officers

PAM3 presents extensive, detailed instructions, primarily to manage the behaviour of case-officers and, by extension, the other participants. Within the PAM3 collection, PVPAM provides over 100 pages of procedural instructions 6 while the “Refugee Law Guidelines” consist of nearly 150 pages for interpreting refugee law, limiting visa grants to persons who meet the refugee definition.

PVPAM explicitly deals with communication, including sections on interviewing and procedural fairness. PAM3 instructions have developed and been amended over time, as the result of lessons learned, political decisions of various governments and advocacy and advice from external parties, like researchers and lawyers (research interview, Professor Crock). My analysis refers to PAM3 current at the time of the research.

2.2.1 The asylum interview

PVPAM includes instructions closely managing the conduct of asylum interviews, including a pro-forma interview. Case-officers must follow the order and “each stage must be completed” (PVPAM.43). This reflects a growing international trend to base the interview on an institutionally-produced script aimed at standardising the communication that takes place (Tipton 2008; Jacquemet 2011).

Case-officers are given specific instructions on managing interpreters, ensuring they fulfil (and stay within) their duties and advising applicants to interject if they have any issues with the interpreter or the interpreting quality (PVPAM.46.4). However, “[u]ltimately it is for the decision-maker to be satisfied as to the effectiveness and appropriateness of the interpreter” (PVPAM.46.5).

Applicants are permitted an accompanying support person and/or their agent (PVPAM.44.1) and are given opportunities during the interview to consult privately (PVPAM, interview pro-forma). The presence of this person and the private consultation could add to micro-level management, as they may guide the applicant, or intervene or present explanations to the case-officer (Spolsky 2009: 4). Interviews are normally audio-recorded (PVPAM.44.5-6).

2.2.2 Procedural fairness

PVPAM explains how the Migration Act codifies procedural fairness principles and what this requires from case-officers. Many provisions relate directly to communication, such as requiring decision-makers to consider all information presented and seeking further information where needed (Migration Act Sections 54 to 56). Finally, decision-makers must provide applicants with any information they believe could lead to a negative decision, and give them a chance to respond.

These requirements mean the applicant should understand what is being said to them during the interview and application process, and be able to effectively communicate a response. These rights have an important influence on communication in (and beyond) the interview and have led to successful legal challenges, often in response to interpreting issues. 7

2.2.3 Credibility

Doubts about credibility can be fatal to an application. Credibility touches at the very heart of the refugee definition. The Refugee Law Guidelines (para 10.1) explain:

The process of determining whether an applicant has a well-founded fear of persecution under the Convention involves assessing the applicant’s subjective fear in an objective context. This requires decision makers to assess the applicant’s credibility and their supporting evidence as to whether the subjective fear of persecution is actually held…

PAM3’s Protection Obligations Evaluation Manual, 8 offers guidance surrounding potential credibility issues. Those related to communication include inconsistencies, contradictions or omissions (ACAC.7); implausible, vague or incoherent claims (ACAC.8); and demeanour (ACAC.9). While these may contribute to negative credibility findings, case-officers must consider potential mitigating factors. These include trauma; forgetfulness; differences in perception; and feelings of shame, fear or mistrust of authorities. Finally, procedural fairness requires that applicants be informed of and given a chance to respond to adverse credibility issues when these would be part of the reason for a negative decision.

Case-officers are reminded that:

Failure to provide procedural fairness in relation to any credibility concerns may result in an asylum seeker not being given the opportunity to explain their case properly which raises the risk that a person with genuine claims to asylum will be refouled. It also exposes the decision to legal challenge (ACAC.12). 9

This is another explicit example of how detailed policy controlling case-officers’ communication with applicants is partially motivated by the broader goal of minimising judicial review. It also emphasises the importance of ensuring genuine cases are successful.

2.3 Policy managing migration agents

The Code of Conduct for registered migration agents (“MARA Code”), created by regulation, aims to “establish a proper standard of conduct” and “set out minimum attributes and abilities” of registered migration agents (para 1.10). Agents are liable to administrative sanctions if they breach the MARA Code, to help ensure compliance (para 1.5).

Migration agents act as a communication “bridge” between applicants and the Immigration Department. Paragraph 2.19 explains that:

Subject to a client’s instructions, a registered migration agent has a duty to provide sufficient relevant information to the Department or a review authority to allow a full assessment of all the facts against the relevant criteria.

Agents must uphold client confidentiality (paras 3.1 and 3.2) and be contactable during business hours (para 3.4). Finally, where necessary, they must ensure their clients have access to an interpreter (para 3.6).

The Migration Institute of Australia’s Members Code of Ethics and Practice largely echoes the MARA Code. They promote professionalism and responsibility, expecting agents to play a central role throughout the application process. These codes and resulting conduct may influence applicants’ willingness to reveal sensitive information, their decision-making ability and autonomy, and how their information is communicated to the Immigration Department.

2.4 Policy managing interpreters

Similar standards exist for interpreters. The Immigration Department, and its interpreting contractor agency, TIS, have published best practice guidelines for interpreters working in migration (TIS 2013). They summarise the more extensive AUSIT Code of Ethics and Code of Conduct (“AUSIT Code”) (AUSIT 2012).

Like the migration agent codes, the AUSIT Code covers professional conduct, competence and confidentiality. Interpreters must interpret “accurately and completely” (Int2) and convey the emotion and tone of the original utterance (Int4). The onus is on them to “clarify the boundaries of their role”, as other participants may threaten their ethics. Serious breaches of the AUSIT Code may lead to disciplinary action, including expulsion from AUSIT.

2.5 Beyond official policy texts

The documents outlined above aim to closely manage how participants behave. This management is partly motivated by the goal of minimising avenues for legal appeal by ensuring compliance with the Migration Act and legal principles. This means facilitating fair and effective communication and decision making. Still, PAM3 must promote (potentially) competing goals, such as efficiency. It must ensure that only deserving (credible) applications are successful; deterring fraudulent applications, and safeguarding protection for those needing it (as discussed in Jacquemet 2009). The codes directed at migration agents and interpreters seek to complement this.

The common goal seems to be to limit room for individual variation in the way communication occurs. This appears to be considered a way of ensuring the equal treatment of each applicant.

Yet, as Maryns (2006: 315) claims:

When rendered into bureaucratic practice … this pursuit of equality takes on aspirations to similarity. And there’s the rub: variation, no matter how salient in the context of asylum seekers’ cases, is considered a problem that needs to be overcome.

Official instructions seem to underestimate the inevitable variety of human behaviour and experience. Blommaert (2010) argues that institutional expectations of the refugee narrative are constructed narrowly and reflect a particular set of ideologies. The individual language management analysis below uncovers the ways different participants navigate this system and the challenges it presents to this institutional “pursuit of equality”.

3 Individual experiences of asylum procedures

This article presents research, undertaken in 2014, focusing on the communication experiences of four Afghan students during their (ultimately successful) protection visa applications. The aim is to explore the role of language management in their interactions with the Immigration Department, 10 mainly focusing on the departmental interview, where applicants present their case in person, answering questions posed by a case-officer.

Drawing on Spolsky’s (2009) “language management” model, the analysis centres on the interaction between language practice, beliefs and explicit management, occurring on multiple levels. While not strictly adopting an ethnographic approach, 11 the research was informed by ethnography’s emphasis on detailed exploration of a particular group of “agents” who interpret and implement policy, and their “dynamic social and historical” and ideological contexts (Cassels Johnson and Ricento 2013: 150–151). To achieve this, “macro-level” textual analysis is supplemented with qualitative interviews with various actors involved at the “micro-level” in the protection visa process (following Cassels Johnson 2013: 151; McCarty 2011b: 3).

Unfortunately, the Immigration Department and its reviewing body (then the Refugee Review Tribunal) did not give permission for interviews with officials. Their accounts would have been valuable and, as policy-implementing agents, would reflect ethnographic principles (Cassels Johnson 2013). Instead, the research had to rely on the accounts of other actors.

The sample is limited to protection visa recipients from Afghanistan, a main country of origin since the beginning of the twenty-first century. 12 By recruiting participants with permanent visas, some of the ethical challenges presented by those still in the application process were avoided (see Zion et al. 2010: 51). Participants selected had been granted their visas within the past four years so their experiences would still be relatively fresh in their memories and relevant to current practices. I conducted semi-structured interviews with these four young men. These included questions about the timing and duration of the application process, decisions about language choice and experiences in the interview, people they had turned to for advice or assistance, and their feelings and views regarding the various actors at different points in the process. The research interviews went for approximately one hour each and were conducted privately. Each participant agreed to further contact for any clarifications. Not being able to access primary data (recordings of the immigration interviews), interviewing the participants allowed me to elicit their impressions and explore some of the influences on the communication choices they made.

The participants were four young men from Afghanistan and all arrived in Australia in 2010 and 2011 in their early to mid 20s, on student visas. Two knew each other before arriving in Australia and met the other two afterwards. All identified Dari as their main language, although three also spoke functional Pashto. All had lived in neighbouring countries as refugees at various points during their youth (three in Iran and one in Pakistan). In Australia, all applied for protection visas, which were granted at first instance. All four had functional English, and three attended their asylum interview without an interpreter, as noted in Table 1, below.

Interviews were also conducted with three solicitors (also registered as migration agents), experienced in working with protection visa applicants, including those from Afghanistan. Two are fluent in Farsi (the national language of Iran, closely related to Dari). The research participants’ details are presented in Tables 1 and 2 below.

Table 1:

Refugee participants.

Table 2:

Migration agent participants.

The interviews were audio-recorded, transcribed and managed along with other data in NVivo10, where they were coded and re-coded, streamlining emerging themes and issues, drawing on the language policy and other literature on asylum and communication. Below, I share findings from these research interviews. While official policy seeks to control how protection applications are made and processed, conducting research interviews with refugees and migration agents allowed me to explore what happens in practice – “what people actually do” (Spolsky 2009: 4). These case studies provide an opportunity to consider the relationship between official policy and the language management that occurs in individual asylum interviews. The findings of this comparative analysis are set out below.

4 Individual language management, choice and belief

In this section I set out the findings from my research interviews, which explored the individual experience of the asylum interview from the perspective of four applicants and three legal professionals. I break down my exploration chronologically, first discussing management prior to the protection interview. I look at issues arising during the interview, considering how these can shape – and be shaped by – belief and practice. Finally, I briefly consider the period after the interview, reflecting on transformations.

Many factors can influence language practice, belief and management. Asylum-seekers must present their narrative in a manner coinciding with official understandings of what it means to be a refugee (Maryns 2006; Tipton 2008), in a communicative style conforming to institutional norms (Blommaert 2001; Jacquemet 2013; Maryns 2006), and thus credible (Jacquemet 2005; Maryns 2004). While official policy has the key aim of creating standard, uniform behaviour, such “socially heterogeneous settings” inevitably entail variety, with each participant contributing to the refugee’s narrative (Maryns 2013).

4.1 Before the asylum interview

Multiple issues emerged from the research regarding expectations, decisions and preparation before attending an asylum interview. I explore these issues, and identify examples of language management and the beliefs they embody. This includes how the migration agent prepares the applicant, providing advice about (or managing) linguistic decisions. Participants also noted the influence of friends, and their own past experiences and self-image, in making these decisions.

4.1.1 Shaping expectations

The first communication with the Immigration Department involves lodging a written application. But before doing this, applicants need to be aware that protection visas exist. All four of my research participants left Afghanistan with the hope of being able to stay overseas, initially by enrolling in university in Australia. Only after living in Australia for some time they each discovered, through friends, the existence of a protection visa. It was also through friends that they each found a migration agent to help them prepare their claim. This may set them apart from those who come planning to seek asylum, who may have some guidance before arriving.

The participants were all assisted by a migration agent from within the Afghan community in Australia. This gave them confidence, as they could communicate about their situation in their preferred language, with someone considered a respected community elder and an experienced professional. Migration agents can act as cultural mediators (Merlini 2009), 13 and help restructure applicants’ personal narratives to conform to bureaucratic expectations (see also Jacquemet 2005; Maryns 2006).

One of the migration agent participants, George, discussed another solicitor who came from the same cultural background as many of their clients. He noted that having “insider” knowledge about their clients’ likely manner of communicating was important in preparing clients for their interviews. He described how this colleague pre-empted shortcomings in his clients’ communicative choices:

G:

I mean, he knew before, before they even knew themselves what they were gonna, what they were all gonna do in the interview, ah and in particular, this, trying to control these tangents.

L:

yep.

G:

and just having and just trying to emphasise how negative they can be because first, the more information you disclose the more chance there can be inconsistencies.

L:

yep.

G:

ah but also you wanna stay on topic and you wanna emphasise and elaborate [on these]

L:

[the specific] yep.

G:

important points, rather than the not important ones …

L:

it might be a [distraction]

G:

[you don’t want] your claim getting lost … in a sea of complaints.

Thus George and his colleague were equally aware of the need for the refugee narrative to conform to institutional culture. The refugee participants understood that their agent was there to help them articulate their story in a suitable form and understand the application process and institutional language. During the research interviews, references were made to “individual persecution” (Batoor) and needing to “fulfil the criteria” (Dawud), terms they had adopted as part of their experience.

However, there was some confusion over the agent’s role. Elias initially believed his agent represented or was somehow connected to the Immigration Department. Thus, when his agent was unorganised and made errors in the application, this shaped his expectations of the Immigration Department. Similarly, George noted that his clients would often have misunderstandings about roles – especially when they had complex cases involving multiple lawyers (for example, for non-migration-related issues). This led him to repeatedly explain their respective roles, and stress that the information they shared was confidential. This helped them feel comfortable disclosing all aspects of their experiences and trust the advice given. Crock’s (2006) participants had similar issues, often misunderstanding the role of their legal advisers and expressing mistrust in them.

Another initial challenge for some participants was wishing to know their chances of success. Unfortunately, discussing persecution fears or experiences was taboo within their social circles, meaning that friends who had previously applied for protection visas were reluctant to share details of their own claims. As Ali explained, this could be for pragmatic reasons:

A:

they like, more hiding their information. Because they afraid maybe I misuse their information or I give them example.

L:

yeah

A:

in interview that like, why you give my friends visa and you don’t give me.

This meant that advice from friends was general and focused on procedure, such as decisions about using an interpreter and what to expect from case-officers rather than sharing specifics of the refugee narrative. I discuss the role that friends played in managing language choices below.

4.1.2 Preparing for the interview

The social circle and the migration agent were both important sources of advice about communication in the interview. As explained, friends were reluctant to provide much detail, and advice was mixed. While some participants received feedback that the interview was less adversarial than expected, Ali was told that the case-officer would be suspicious and tough. This increased his anxiety before his interview, which may have affected the choices he made. Still, this advice reflected the reality that there is variety between individual case-officers. There are plenty of recorded examples of adversarial behaviour towards applicants, including unaccompanied minors, while others report sympathetic approaches (eg Crock 2006).

Both friends and agents emphasised the importance of accuracy or attention to detail, with a general underlying assumption that there was a correct way of presenting a narrative. Batoor clearly demonstrated this belief, repeating several times the need to answer the questions “properly”: “So these are the sorts of questions which is really logical to me and should be to everyone, and you should answer in a very accurate, on a proper way”.

Advice on accuracy emphasised that information communicated during the interview should be consistent with the initial written application and statement. Two applicants expressed particular concern around remembering the dates of events they had mentioned in their written applications. Elias was particularly fixated on this issue:

E:

yeah that was one of my concerns. Um, when I talked to my … ah … friend, he was saying that you need to know some of the dates but not all of them, you can say roughly.

L:

mm …

E:

ah yeah, but my migration agent was kind of um … ah telling me that you should try to know the dates cos this is the case that you have told me.

This management reflected the official policy’s emphasis on consistency and credibility (ACAC.6 & ACAC.7, above). Markers of time are culturally valued in measuring both the consistency and level of detail in applicants’ narratives, which both contribute to credibility (see for example Blommaert 2001; Maryns 2006). Yet, institutional expectations may rely on mistaken cultural assumptions. Some cultures place less importance on details like names, addresses and dates. My personal experience is that Afghans sometimes may not even know their own age or birthday. Additionally, they use the Persian rather than Gregorian calendar, so even if they remember a specific date, calculations are needed to convert it. The Persian and Gregorian months do not exactly align, adding even greater risk of inconsistency (see also Jacquemet 2011).

However, Elias discovered in his interview that questions about dates were not asked and that “it’s not like an exam”. This may reflect further policy advice that “[a] person may forget specific dates … due to a range of factors …” (ACAC.7). While there is no specific mention of cultural (or calendar) differences within this section of the policy, there is a general instruction in the PVPAM Interviewing section that case-officers “should be careful to consider cultural issues/differences in dealing directly with applicants” (PVPAM.44.1).

More generally, the applicants sought information on what type of questions would be asked during the interview, and how the case-officers would act towards them. While they were advised to expect straightforward questions, they still emphasised how nervous they felt. Batoor explained:

it was like first interview in Australia and with the case-officer and I was, I was really not feeling, at the start, I was not feeling comfortable and you know that it was not very easy when you have the interview for the first time in your life, and especially when I was thinking that it’s about my life and I will, if I, if I would have been ah, deported, what would have happen.. so what will happen if I’m not granted any visa or things like that.

This was a type of interaction they had never before experienced, and on which so much hinged. This creates an obvious inequality between them and the case-officers, for whom the interview is a familiar part of their everyday work, and the outcome relatively less important (see also discussion in Codó Olsina 2003). This makes it crucial that case-officers accurately discern issues with demeanour or inconsistencies that result from anxiety and therefore should not negatively impact on credibility (as directed by ACAC.11). Fortunately, as discussed below, the applicants’ case-officers did not misinterpret their anxiety and even took steps to alleviate it.

4.1.3 Using an interpreter or speaking English

While the participants were worried about the outcome of their applications, they felt fairly confident about their ability to speak English. Protection visa applicants are given the opportunity before the interview date to request an interpreter. Batoor, Dawud and Elias all elected to attend the interview without an interpreter. Once again, this communicative choice can be traced back to both migration agent and peer management. Dawud explained that his agent recommended that he should do the interview in English, “if you can handle it”.

Dawud and Batoor were also influenced by language-related beliefs. Dawud referred to the English exam he undertook to obtain his student visa, to explain his confidence in his ability. He believed that direct communication would allow him to “interact” with the case-officer and communicate more effectively. He also suspected his English language ability would reflect well on him, and create a positive bias towards him in the interview. While ability in English is by no means a requirement for the grant of a protection visa, this attitude may reflect the influence of broader values. Proficiency in the official or national language is often a prerequisite to immigration or citizenship (Spolsky 2009). Indeed, this is true in Australia for many permanent and some temporary visas, including the student visa, which was Dawud’s only previous experience of the migration system. General immigration policy may have therefore influenced Dawud’s attitude towards the English language (as suggested in McCarty 2011b), leading him to believe that using the language of the institution would be advantageous (following a similar suggestion by Spolsky 2004).

Batoor placed value on his professional experience. His identity, as someone who had worked as an interpreter for Western forces in Afghanistan was also a significant element of his persecution narrative. Blommaert (2010) presents the case of an asylum-seeker, whose proficiency across different language varieties was used by the decision-maker to reach conclusions about his identity and claims. Similarly, Batoor’s decision may not only have reflected his self-perception. It may have also – perhaps fortuitously – aligned with the case-officer’s expectations of an individual presenting with such a claim (see also Jacquemet 2011).

In contrast, while Ali felt, as a student, his English was competent, he chose to use an interpreter. In his case, his confidence in English differed across varieties:

A:

I have problems, and all my friends saying that the judge or the case-officer would be … the … Aussie.

L:

mm.

A:

so it’s … there’s a different accent.

L:

yep, okay.

A:

so that’s why I take an interpreter.

He was also less confident in this particular domain, feeling he would need “special vocabulary” that he did not have in English (see discussion in Maryns 2006). Therefore, he felt the interpreter would provide a safety net for him. The importance of the interview outcome, and his elevated anxiety, reinforced this decision. Strategically, he recognised that using an interpreter would allow him to hear the case-officer’s questions in English and then have some time to consider his response while the question was interpreted.

Finally, he appears to have been influenced by a belief that interpreters working in Australia are highly professional. First, he explained that a relative of his is an interpreter in Australia and takes his job seriously, constantly studying new vocabulary to ensure he provides high-quality interpreting. Second, Ali attached value to the interpreter’s accreditation. I discuss this below.

4.2 In the asylum interview

Important management and choices related to language took place before the interview. During the interview, interpersonal dynamics, interventions and attitudes influenced language management and choice. Advice and experiences external to the interview also had an impact. In this section I explore three issues that emerged from the interviews. First, I examine interpreting issues and how these were managed. I then consider emotional comfort, and then comprehension.

4.2.1 Interpreter issues

Interpreting issues in the Australian asylum context are well-documented (see for example, Barnett 2006; Crock 2006). All three migration agent participants had encountered serious problems with interpreters, relating to both competence and conduct. Ali, the only refugee participant to use an interpreter, also experienced issues. Fortunately, he could understand both languages; allowing him to identify the problem. This would not be possible for those who do not understand the language of the system.

In Ali’s case, he quickly realised that his interpreter was making numerous, sometimes serious, errors. This included translating the word for a particular relative as another type of relative, clearly not complying with basic accuracy instructions. Given the importance of consistency to credibility, this could have seriously undermined Ali’s application. Ali explained how he waited for his agent to interject:

A:

he didn’t say anything to me and I say, I thought by myself maybe it’s not a big issue.

L:

mmm.

A:

it’s like procedure and the …

L:

the …

A:

and … because at that time I was thinking alright someone who has a licence, he’s

L:

mm.

A:

the, no one, you know, can complain about him, because he has a licence, so he have a full power.

Thus, Ali said nothing. This demonstrates how he valued his agent’s judgement, the case-officer’s authority, and the professional status of the interpreter and the procedure itself. The problems continued until the case-officer intervened and asked him about the quality of the interpreting, having observed his concerned facial expressions.

For applicants who are unaware that there is an issue, the presence and intervention of an advocate are crucial. George reported intervening in a number of interviews to draw attention to interpreting issues. In one case, the word for “television news report” was mistranslated as “newspaper report”, due to dialect differences between the applicant and interpreter. This led the case-officer to question why a copy of this crucial evidence (the supposed newspaper) had not been provided. While a copy of a newspaper could be easily obtained, it would have been nearly impossible for the applicant to obtain a copy of the actual television report. This single mistranslated word formed the whole basis for the eventually successful claim, and would likely have been fatal to the applicant’s credibility (and claim) had it not been for George’s intervention.

Similarly, Hannah observed a range of interpreting issues. These included interpreters summarising long narratives, conversing with the decision-maker, and adding extra comments either advocating for or against the applicant. This contributes to entextualisation, in which the refugee’s narrative is transformed by the various participants involved in the interview to create an institutionally appropriate official record (Jacquemet 2009; Blommaert 2001; Maryns 2013) Sometimes, this process creates apparent inconsistencies or inaccuracies which harm an applicant’s credibility (Jacquemet 2009; Inghilleri 2003). These experiences led Hannah to be wary of the interpreting: “it’s not very accurate, like sometimes I don’t really trust what exactly they saying whether it’s from them or it’s from the applicant.”

When the case-officer questioned Ali about the interpreting, a further dynamic was revealed. While Ali was worried about the negative impact of the interpreting on his claim, he feared that complaining could affect the interpreter’s career. The case-officer demonstrated considerable insight by reassuring him, saying, “don’t worry … The interpreter will get paid”. Ali’s experience in the interview led to a change in his beliefs, explaining, “I didn’t trust him anymore”. 14

Consistent with the beliefs held by the other refugee participants, the case-officer appeared to attribute significant value to the fact that Ali was a Masters-level student and had passed an English exam. She stated these facts as reasons for suggesting he should be able to continue the interview in English (see discussion in McNamara 2012). This could have led to expectations that Ali had access to the same English variety as her, and a full range of vocabulary. Fortunately, the case-officer demonstrated sensitivity to his potential limitations, speaking slowly and clearly, being attentive to facial expressions and repeating questions where necessary.

Batoor demonstrated similar deference to his case-officer. When asked whether he needed an interpreter, he reported responding: “no, I know the En- the language but if you think that there should be an interpreter here it’s up to you”. This demonstrates the effect of power dynamics in the interview context, and beliefs about the parties’ respective roles. The participants considered the case-officer in charge of leading the communication (see also Jacquemet 2011). This suggests that expecting applicants to intervene is not always realistic. Crock (2006) notes this issue amongst young asylum-seekers. Even when directly asked whether they were happy with their interpreter (using the pro-forma question), they all said yes, despite many having serious concerns about interpreting quality. She described this as a “courtesy bias, or desire to be seen as a willing and cooperative participant in the process” (2006: 138). This “gratuitous concurrence” has been observed in other settings of intercultural communication and power asymmetry (see Eades 2013). As Jacquemet (2011) argues, it is therefore crucial that case-officers are aware of potential communication breakdowns and the asymmetrical power relationships that may deter applicants from intervening, even where policy guidelines expect them to.

Ali’s experience was an example of the official guidelines failing. Placing the onus on the applicant to intervene ignores the issues of power and status Ali raised, as well as the fact that applicants who do not understand both languages are unlikely to identify errors in the first place. Had the case-officer been less sensitive to Ali’s non-verbal cues, or less disposed to accommodate him, she could have continued on without erring from compliance with the guidelines. Her approach thus demonstrated good practice beyond the requirements of official policy.

4.2.2 Encouraging emotional ease

As explained above, all the refugee participants expressed some level of nervousness about the interview. Putting applicants at their ease is an important part of managing effective communication. Batoor explained:

you get a bit upset or maybe nervous, something like that so it’s why very hard, you can’t concentrate on the question sometimes properly exactly what the questions has asked you.

Generally, the participants described their case-officers in positive terms. Even Elias, who was more critical, described his case-officer as “nice”. All identified techniques their case-officers used to put them at ease. These included asking opening questions, using encouraging body language and rapport building. They all reported that their case-officers explained to them the basic procedures, like the audio-recording of the interview, and bio-data collection tools.

Ali, Batoor and Dawud described how their case-officers asked some opening questions about themselves that helped them feel more comfortable. While Elias explained that his case-officer began serious questioning straight away, he noted his use of encouraging non-verbal communication (smiles and nods). “I was feeling that I’m really communicating well, I was feeling pretty comfortable with him”. Thus this non-verbal communication acted as positive reinforcement for Elias’ communicative style.

Building rapport by identifying common ground or showing an interest in the applicant’s identity can be an effective strategy (some studies even suggest establishing “co-membership” increases the likelihood of successful immigration decisions: see Johnston 2008). George gave the example of a case-officer with whom he had interacted on multiple occasions. This case-officer began each interview with clients from a particular country of origin by explaining how he admired a famous poet from that country. George explained that this allowed the case-officer to positively identify with the applicants, without compromising their narrative. The poet was alive several hundred years ago, meaning that applicants could join in appreciating their cultural heritage without threatening their institutional identity as persecuted and oppressed people.

Dawud’s case-officer used a similar technique. He disclosed that he, like Dawud, had a legal background. Arriving and putting his notes in order, the case-officer joked about his lack of organisation, saying “you know the lawyers”. This created an immediate connection. As Dawud put it, “it was just like opening the conversation to share something with you.” Introducing discussion about their shared background put Dawud at ease. However, this topic created some issues for Dawud, something I discuss below.

The case-officers’ specific choices here are examples of good practice, given the participants’ positive responses. However, they also once again demonstrate how variation is possible while still complying with policy.

4.2.3 Dealing with comprehension/communication issues

In intercultural exchanges, friendliness alone does not protect against misunderstandings, the results of which are likely to favour the institution over the applicant (see Cook-Gumperz and Gumperz 2002). The participants reported a variety of techniques their case-officers adopted to ensure comprehension and overcome misunderstandings. These included asking the applicants whether they understood what was being said, and reminding them that they could ask to use an interpreter if they wished. Still, there were points in all the participants’ interviews where they had problems understanding or making themselves understood. In Dawud’s case, when asked about the areas of the law he had studied, he found it difficult to explain these terms in English. He lacked English-language competence in this particular domain or topic (see Spolsky’s [2009: 3] discussion on varying competence across different domains, referring to Fishman [1972] and Gumperz [1976]). This was understandable, considering he had studied and practiced law in a Dari-speaking context. However, his identity as a lawyer was an important element of his persecution claim. If the case-officer had adopted a monolingual ideology, expecting Dawud to be able to access a full English repertoire, his apparent hesitation could have undermined his credibility (for a critical discussion on monolingual ideology see Maryns 2006). Fortunately, his case-officer accepted his inability to explain these terms in English and they continued without it adversely impacting his narrative.

Elias felt less satisfied with his case-officer’s approach. He explained:

E:

um considering that I’m like a new person to this country and not that … confident with the language … um … he was kind of speaking as if he was speaking to a, you know maybe an Australian person.

L:

okay so …

E:

yeah I had that feeling, I remember that.

L:

so in what way, like fast or ah-

E:

a bit fast and … ah, so with the, I think when you’re talking to someone who is coming from a different language, you should keep things simple.

L:

yep.

E:

like the questions. You wanna ask this, so you need to think about it, how you want to put the sentence, the question.

L:

mm.

E:

keep it simple rather than, like making it a long question.

L:

(laughs)

E:

you know?

L:

yes.

E:

for a, for a little bit of information.

L:

yeah.

E:

that’s what I remember but yeah, I think that was the case.

L:

okay, alright so he, he … did he change, did you notice um after you had some trouble with understanding, did he change his style of speech or anything like that? Did you notice any change?

E:

I think yeah, towards the like, middle of the interview, obviously he was kind of adjusting to that.

Elias differentiated between his case-officer’s “nice” manner and his ability to communicate appropriately. He also found the case-officer rushed and considered this a possible reason for his brusque style. Professor Crock explained that in her experience, poor communication is not necessarily malicious, but can rather simply be lack of experience or training. She argued, “it’s one thing to actually have … the policy guidelines. It’s another thing to actually be taught about the guidelines.”

Fortunately, Elias’ agent had advised him how to respond to comprehension issues, urging him to raise these with the case-officer. By doing this, Elias effectively managed the case-officer’s communication, encouraging him to reattempt questions more appropriately, and ultimately leading him to adjust his overall communication style. This reflects two interconnected levels of management. First, the external, prior advice of the migration agent influenced Elias’s behaviour in the interview. Second, Elias’s conduct then managed the case-officer.

Ali used a similar approach, with a slightly different response. While Elias’ case-officer reworded questions, Ali’s repeated the same questions more slowly. While different, the participants found both strategies effective. Communication management can also occur through direct intervention: when Batoor struggled to formulate a response to a challenging question, his migration agent stepped in and answered on his behalf. Once again, the participants demonstrated variety in clarifying and navigating confusion, all within the bounds of policy guidelines. Here, the migration agent’s crucial role in guiding the applicants and intervening suggest that outcomes for applicants without such advice or assistance may be quite different.

4.3 After the interview

All participants reported feeling differently at the conclusion of the interview than the beginning. Having had positive experiences overall, they were relieved and had increased confidence in the Immigration Department. Understandably, their main concern was whether they would be successful. For Ali and Batoor, important communication occurred at the very end of their interviews reflecting the trust and empathy built with their case-officers. Batoor described his case-officer’s use of body language and facial expressions:

after finishing the interview, the case-officer, when he thanked me for coming here for the interview, and … to be honest giving me an idea of what, how the interview went, um, he just told me, as I said that it might take couple of months and ah, from his eyes and from his body language I was thinking that something is going positively.

Ali’s case-officer was more explicit:

A:

she just, she come, she come close to me at the end.

L:

mm.

A:

you know when we come out of the room and she said I know you’re in a really tough situation.

L:

oh really?

A:

I try to, you know, process your visa as soon as possible.

This was a way of delivering a clear message to the applicants that they had successfully navigated the interview, creating a credible narrative conforming to the departmental model. This provided them with the reassurance the case-officers knew they craved. These seem to be examples of policy non-compliance: nowhere in the interview structure are case-officers advised to hint at likely outcomes. Ironically, these rebellious acts left applicants feeling more positive about the interview experience.

While Elias was not offered such reassurance, his overall experience left him with greater confidence in the Immigration Department and less confidence in his agent. These adjusted beliefs encouraged him to take a more active role in later interactions with immigration officials, communicating directly, rather than through his agent.

The applicants left this process with reinforced or transformed beliefs to share with other community members (potentially) applying for protection visas. While, like their predecessors, they were reluctant to share details of their experiences with others, Batoor and Ali both mentioned having offered advice to friends, just as they had received and been influenced by the advice of their friends. This creates a cycle of management and belief creation about the interview and application process that, as I have explained, can influence the communication choices applicants make.

5 Conclusion

The research findings presented above demonstrate that language management is complex and dynamic, and beliefs and resulting choices are shaped before, during and after the asylum interview and influenced by much more than just the official guidelines. While the research participants’ experiences were reasonably positive, their diversity reveals that official policy only goes so far in explicitly controlling communication in asylum applications.

While most variation fell within the guidelines, there were some cases of non-compliance. The most blatant was Ali’s interpreter not meeting an adequate level of accuracy. Elias also faced issues with his migration agent. While standardised communication is institutionally valued, variation is inherent in all social interaction. This research has demonstrated the room for diversity amongst individual case-officers, interpreters, migration agents, and applicants themselves – even when policy guidelines are followed, resulting in different experiences and potentially different narratives and outcomes.

Interactional power is an important consideration: the applicants deferred to the case-officers and other participants, even in situations where official policy – perhaps unrealistically – expected them to intervene. They relied on their case-officers to help overcome misunderstanding and anxiety. Their language choices were influenced by their agent and friends with superior knowledge (having been through the process before them), as well as their own beliefs.

The official departmental guidelines appear to be designed with the expectation and goal of being able to closely control the interaction to minimise variation. Yet, while staying within the bounds of policy, each case-officer behaved differently. They used different techniques to steer the interview, build rapport and overcome misunderstandings – with varying results. They were also assisted by the choices made by others, for example, when the applicants indicated they did not understand something, through speech or non-verbal cues; and when the migration agent interjected for Batoor.

If these interventions had not occurred, or had the case-officers reacted to them differently, simple policy compliance may not have been sufficient to ensure a fair outcome. This becomes particularly significant where the case-officer does not empathise or identify with the applicant or where the applicant is unrepresented. Policy valuing uniformity may give the appearance of fairness. However, the fact that case-officers have room for variety while following these instructions means that in some situations – such as many of those highlighted in this article – good practice remains a matter of choice. Likewise, applicants’ diverse personal beliefs and attributes may make certain approaches better than others.

This research has been limited to a brief exploration of a small group of refugees with discrete demographic and experiential characteristics. Future enquiry could extend to other groups. Where possible such research would benefit from direct observation of asylum interviews (eg as in Maryns 2006), allowing for more detailed analysis of the types of issues identified in this article.

The important influence of external parties and personal experience, and the power imbalances inherent in such highly-controlled institutional interactions are clear in both my findings and the existing literature. They affect the way each participant contributes to the co-construction of the refugee narrative and how it is officially understood. These structures and processes merit closer attention in both research and policy making if we are to come anywhere close to ensuring that all genuine refugees can successfully communicate their claims and gain protection.

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Footnotes

  • 1

    In 2008–09, Australia received 5,762 asylum requests. This rose annually to 26,427 requests in 2012–13 (DIBP 2013: Section 2.1; DIAC: 2011, Section 2.1). 

  • 2

    The Refugee Convention applies through the Protocol Relating to the Status of Refugees 1967. The Immigration Department may also issue visas to applicants not meeting the refugee definition but deemed eligible for complementary protection, i.e. who face serious harm if returned, triggering Australia’s obligations under other international human rights treaties (see PVPAM Section 3.4). Recent legislative amendments create a different regime for boat arrivals. 

  • 3

    PVPAM is the Protection Visa PAM, an instruction document contained within PAM3. 

  • 4

    While not required by law, it is policy to hold an interview (PVPAM.42). 

  • 5

    Like their departmental counterparts, AAT guidelines exist which manage the conduct of participants, including interpreters, applicants, Tribunal members. These are beyond the scope of the current analysis. 

  • 6

    PAM3 is designed for online access, via http://www.immi.gov.au/Services/Pages/legendcom.aspx. When downloaded, PVPAM alone equates to a 113-page Microsoft Word document. 

  • 7

    See Perera v Minister of Immigration and Multicultural Affairs (1992) 92 FCA 507, where interpreting issues at the review stage were said to undermine the applicant’s rights to understand and respond to adverse information, leading to jurisdictional error Migration Act, Section 425 (Barnett 2006; Smith-Khan 2012). This remains acceptable grounds for judicial review: SZSEI v Minister for Immigration and Border Protection [2014] FCA 465. 

  • 8

    The Protection Obligations Evaluation Manual comprises 268 pages. The relevant section, entitled “Asylum Claims – Assessing Credibility”, has paragraph numbers abbreviated to “ACAC”. 

  • 9

    “Refouled” refers to the legal term “refoulement”, or returning a refugee to their country of origin, where they face harm. 

  • 10

    The Australian government department responsible for immigration has had many names over time. Since 2013, it has been known as the Department of Immigration and Border Protection. 

  • 11

    Extensive community engagement (as recommended by Cassels Johnson 2013: 149; McCarty 2011b: 3) was not possible. I have, however, had exposure to protection visa applications and appeals over several years, assisting migration agents, community organisations, solicitors and a barrister. I have also researched refugees (including Afghans) in international displacement settings: see Smith-Khan et al. 2015. Without claiming “insider” status, I have social links to the Afghan community in Australia. 

  • 12

    In 2009–10, Afghanistan was the most common country of origin for protection visa applicants (DIAC 2010: para 2.1.2). 

  • 13

    Merlini (2009) explores how interpreters may take on this role, dealing with the same issue of reconciling personal narratives with officially acceptable ones. 

  • 14

    Ali’s loss of trust was compounded by subsequent experiences in which multiple interpreting agencies sought to hire him as an interpreter for migration interviews, without requiring he have any accreditation. 

About the article

Published Online: 2016-03-04

Published in Print: 2017-01-01


Citation Information: Multilingua, ISSN (Online) 1613-3684, ISSN (Print) 0167-8507, DOI: https://doi.org/10.1515/multi-2015-0072.

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