Abstract

Credibility assessments in asylum visa applications have attracted criticism across diverse research fields. This article builds on existing critical examinations by presenting a case study of a successful appeal in the Federal Court of Australia (FCA) which overturned a decision involving one such problematic credibility assessment. The article establishes that credibility assessments often rely on flawed language ideologies and reasoning that transform the asylum seeker into the sole participant responsible for the texts produced in institutional processes. As a contrast, it then explores the FCA decision, analysing the judge’s treatment of three different premises on which the lower-level rejection relied. It demonstrates how, when dealing with each of these premises, the judge’s approach aligns with sociolinguistic scholarship. The case study demonstrates the potential of sociolinguistic awareness to denaturalize the problematic ideologies underlying credibility assessments. However, the article equally acknowledges and discusses the systemic limitations on challenging credibility assessments, due to the narrow scope for judicial review, and the need for professional legal assistance to argue one’s case successfully. The article concludes that while credibility assessments serve to act as a powerful gatekeeping tool to support increasingly restrictive asylum policy, judicial receptiveness of sociolinguistic understandings of communication can sometimes provide an avenue for successful appeals. It thus provides a powerful example of the potential benefits of communicating sociolinguistic research to law students, legal practitioners and decision-makers.

Highlights

  • The design and implementation of credibility assessments in Australian asylum decision-making frequently draw on problematic assumptions about language and can result in inconsistent and unfair outcomes

  • This article builds on existing critical examinations by presenting a case study of a successful appeal in the Federal Court of Australia (FCA) which overturned a decision involving one such problematic credibility assessment

  • It summarizes the findings of a critical discourse analysis of a set of credibility assessment guidelines and merits review decisions, where it was demonstrated that credibility assessments rely on flawed “language ideologies”, or understandings about how language and communication work

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Summary

Introduction

The design and implementation of credibility assessments in Australian asylum decision-making frequently draw on problematic assumptions about language and can result in inconsistent and unfair outcomes. This was the case for an asylum seeker deemed untrustworthy partly based on an apparent inconsistency for describing an injury to his “arm”, when using English, and “shoulder”, appearing in a medical report in his first language, and despite his later attempts to explain the proficiency-related reasons for this variation (Smith-Khan, 2019) (see similar discussion of overexpections of an asylum seeker’s second language proficiency in Maryns, 2005) These problems with credibility assessment are concerning given that there are limited legal avenues for the IAA’s or AAT’s credibility-related decisions to be reviewed and overturned in court. While neither the appellant’s lawyers’ nor the judge explicitly refer to sociolinguistic research, the below analysis demonstrates how the arguments and reasoning they adopt align with existing scholarship and avoid or challenge some of the problematic language ideologies that often arise in refugee credibility assessments

Timing premise
Subsequent attacks premise
Interview with the Appellant
Interview with M
Tripoli family premise
Secondary sources
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