To access refugee protection in Australia and Canada, refugee applicants must speak. They must present their oral testimony in person, repeatedly and at length, unmediated by a legal representative or advocate, and in many cases without the benefit of documents, witnesses or other forms of evidence to verify their claims. This book is about the oral evidence that refugees are compelled to give, the stories they are required to narrate, and the genres of storytelling they are required to master during administrative oral hearings for the assessment of refugee status in Australia and Canada. This introductory chapter establishes the book’s central concerns, namely: what the presentation, interrogation and assessment of testimony during the oral hearing tell us about the refugee subject whom Refugee Convention-signatory states judge as authentic, credible and, ultimately, acceptable. It then carefully connects the demand for narrative within RSD with the intractable problems of credibility assessment. Finally, it interrogates the role of law, lawyers and interpreters in shaping the refugee testimony and analysis presented throughout the book.

This chapter argues that a distinct stock story of who refugees are and how they behave, which it describes as the ‘stock narrative of becoming a refugee’, featured throughout the hearings. This stock story is one version of how, when and why ‘genuine’ refugees decide to leave their home countries and seek refugee status in another state. The chapter analyses the extent to which this prescriptive narrative conforms with international and domestic definitions of refugee status, to show that the normative expectations embedded within the stock tale far exceed the legal basis for refugee protection. Nonetheless this story, with its distinct narrative form, was demanded of refugee applicants during oral hearings and structured how decision-makers tested and judged applicants’ evidence and credibility. While decision-makers frequently demanded evidence that conformed to the stock narrative of authentic refugeehood – or that applicants to account for deviations from this narrative – refugee applicants also implicitly or explicitly contested or resisted this demand when presenting their oral testimony.

Chapter 6 examines how the reasons for persecution are applied and interpreted by appellate authorities when individuals flee contemporary armed conflicts. It claims that due to appellate authorities’ conventional warfare perspective and the requirement of singling out and heightened standard of proof, there is limited judicial engagement with the Refugee Convention reasons in light of widespread violence. Instead, the Refugee Convention reasons for persecution are applied solely in light of the individual circumstances of appellants where these are considered to amount to singling out. Accordingly, there is a general failure to adequately consider actual or imputed Refugee Convention reasons for persecution. Where appellate authorities find that appellants have been singled out, they interpret the Refugee Convention ground of (imputed) political opinion too narrowly and fail to acknowledge women’s experiences of gendered violence. The chapter argues that violence is in fact motivated by identity politics on the basis of real or imputed reasons such as sex, ethnicity, race, religion, political opinion or social group and that therefore violence is not felt indiscriminately by persons fleeing armed conflicts. The chapter highlights the significance of imputed political opinion as a Refugee Convention ground in light of the nature of political violence and discrimination.

The Conclusion summarises the findings and makes recommendations for interpreting the Refugee Convention in a manner that better responds to the characteristics of contemporary armed conflicts. The effective international protection of persons fleeing contemporary armed conflicts would require a shift in assumptions and consideration of evidence that goes beyond the conventional warfare perspective currently adopted by appellate authorities in EU MS to focus instead on the gendered dynamics of violence. The book recommends a more detailed examination of armed groups’ strategies and tactics in conflicts, including their means, as this provides a better understanding of their reliance on violence against civilians to control populations and territories and support the financial costs of fighting. Examining the tactics and means of parties to conflicts locates a logic in the choice of violence leading to highly visible forms of human rights violations. This, in turn, enables the conceptualisation of particular incidents, such as kidnappings or sexual violence and rape at checkpoints, as strategic choices of violence rather than criminal by-products of conflicts. Thus, better understanding the dynamics of violence in conflict helps identify the Refugee Convention reasons for persecution and highlights the increasing importance of imputed Refugee Convention grounds.

The EU fundamental right to asylum, enshrined in Article 18 of the Charter, has always been a subject of scholarly debate. While some scholars have interpreted Article 18 as limited to a right to seek asylum, others have argued that it also confers an individual right to be granted asylum under certain conditions. Clarifying the scope and effects of the EU fundamental right to asylum is no longer of purely academic interest; courts across the EU are increasingly faced with complaints regarding its violation following the EU’s and Member States’ policy responses to the 2015 refugee crisis. The debate has been fuelled by the broad wording of the EU fundamental right to asylum, defined in relation to the rules of the Refugee Convention and EU Treaties. This chapter considers the scope of Article 18 of the Charter compared to the principle of non-refoulement guaranteed by the 1951 Refugee Convention; the extraterritorial application of the EU fundamental right to asylum and its content; and the main actors contributing to the normative clarification of the right to asylum. The chapter demonstrates the added value of the EU fundamental right to asylum as reflected in its various functions at EU and national levels.

Relying on the Vienna Convention on the Law of Treaties (VCLT), this chapter explains why international human rights law is relevant to the interpretation of Article 1A(2) of the Refugee Convention. It then describes Articles 31-33 of the VCLT, which will be relied upon to address the two limitations in the dominant human rights-based interpretation of the refugee definition identified in Chapter 3.