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 addresses the history of the refugee oral hearing in Australia and Canada. It explains how and why the oral hearing became a central event within RSD processes in each jurisdiction and traces the role of refugee testimony up until the introduction of a quasi-independent administrative process for RSD and into the present day. In both countries, the introduction of statutory RSD procedures and an oral hearing represented a shift toward enhanced administrative rights and justice for onshore refugee arrivals. However, it also occurred in the context of an increasing state focus on the ‘genuineness’ of refugees and major reforms that sought to limit and control onshore refugee arrivals in both jurisdictions. The chapter then traces more recent reforms to RSD processes in Australia and Canada. This later history reveals that the ‘right’ to fair and independent decision-making processes has become increasingly constrained in both jurisdictions, and that limiting access to RSD has become a key means by which states enact policies of refugee deterrence and exclusion.

This chapter completes the book’s examination of the impossible narrative position faced by refugee applicants by examining how specific genres enter the hearing room and further determine the ‘authentic’ refugee that states are willing to accept. Drawing on Joseph R Slaughter’s engagement with the genre of human rights discourse, it argues that like the protagonist of the classic Bildungsroman and human rights narratives, refugee applicants are expected to narrate a linear progression from a non-citizen ‘outsider’ towards full civic incorporation through the seeking of protection and the resolution of refugee status. In this generic mode, refugee applicants were expected to present evidence as omniscient narrators with sovereignty over self and others, and the ability to account not only for their own actions but also the decisions and interior worlds of others. Crucially, the ‘good’ refugee’s story moves steadily towards complete resolution that is the determination of refugee status and the realisation of a liberal personhood, marked by self-possession and autonomy, and readiness to become a refugee-citizen.

The Conclusion returns to the book’s central questions and arguments. It considers the implications of the book’s findings for the conduct of oral hearings within RSD, and the impossibility of a just assessment of refugee applicants’ oral testimony against the current credibility criteria. While the aim of the book was not to advance precise reforms to RSD, in reflecting on what suggestions for reform arise, the Conclusion argues that if oral hearing must be a narrative occasion, it should be a more predictable one. Where applicants’ evidence is expected to fit within cognisable narrative forms, the hearing should provide the opportunity to meet these standards. However, such a reform would do nothing to address the narrative mandate traced and critiqued throughout the book. Finally, the Conclusion explores and holds open the possibility for certain texts and genres to present radical ways of imagining refugee narratives outside the strictures of refugee law, RSD and the extreme demands (and limits) currently placed on the testimony of refugee applicants.

This chapter introduces the book’s central argument, that narrative plays a key role in refugee decision-making and calls for a critical politics of narrative within RSD. The chapter closely engages with the theoretical insights of law and literature studies, and of outsider storytelling scholarship as articulated by critical race, Indigenous and feminist law scholars, to explain how narrative is implicated in RSD and in the politics of whom states deem the ‘credible’ and ‘acceptable’ refugee. It introduces the book’s methodology in further detail, alongside the dataset of fifteen oral hearings before the Canadian Immigration and Refugee Board and the former Refugee Review Tribunal in Australia. The chapter goes on to articulate a working definition of the ‘model’ Anglo-European narrative form, which I argue shapes the reception and assessment of refugee testimony. The chapter finally address the barriers encountered in accessing refugee oral testimony, and the implications of such barriers for interrogation of the oral hearing as a site of narrative. In making a case for the disciplining role of narrative within refugee decision-making, this chapter critiques the celebration of story-telling as necessarily emancipatory or disruptive of law’s authority, and characterisations of narrative as distinct from legal discourse and power.

A core impediment to refugee applicants providing a credible narrative account of their claims to protection is the profound fragmentation and unpredictability of the structure, content and conduct of the oral hearing. This chapter argues that the conduct of the oral hearing severely fragmented applicants’ testimony in three key ways: reverse-order questioning; decision-makers’ abrupt subject switching during the hearing; and questions pertaining to time, sequencing and precise dates of events. This leads to the conclusion that applicants were both expected to present their oral evidence in a form that fulfilled the credibility criteria and the demand for narrative, and actively impeded in their efforts to do so. Further, where applicants displayed an ability to present evidence in a narrative form, in all but a minority of hearings this was done despite, rather than because of, the structure and setting of the hearing.

The Introduction sets out how the number of forcibly displaced persons in the world is the highest ever recorded. Violence associated with armed conflict has become the main cause of forced displacement in the twenty-first century and most refugees are fleeing armed conflicts. Most asylum seekers in the European Union (EU) originate from Syria, Afghanistan and Iraq. However, there are many misconceptions whether persons fleeing armed conflicts are refugees as defined by the Refugee Convention. This book is thus an enquiry into the continued relevance of the Refugee Convention and examines the extent to which asylum appellate authorities in the EU take into account the changing nature of contemporary armed conflicts. The book also explores how the Refugee Convention may be interpreted in a manner that better responds to the changed nature of contemporary armed conflicts from a gender perspective, thus reconceptualising the concept of the refugee. The Introduction sets out the conceptual notions adopted in the book, such as the importance of distinguishing between violence and armed conflicts, the research methodology and sampling of 320 asylum appeal decisions from Belgium, Denmark, France, the Netherlands, Spain and the UK. Finally, it sets out the structure of the book.

Chapter 6 is dedicated to decision-making practice regarding sexuality-based asylum claims in Spain. Here, the act/identity emerges from the holding that ‘mere membership’ is not sufficient for a claim to be accepted; claimants needed to have been ‘singled out’ for persecution. This involved the requirement that the claimant had already been ‘outed’ and identified by the persecutor. The focus is on the claimant’s past externalising act. If claimants had not been ‘outed’ to the persecutor and therefore suffered prosecution, they were not entitled to protection in Spain. Spanish jurisprudence developed largely independently from international developments and there was no notable impact of the UK Supreme Court or the CJEU judgments on this approach in Spain. The Qualification Directive, however, which stipulated that persecution can also emanate from non-state actors (which had previously been rejected in Spain), led to the invention of the doctrinal figure of ‘significant transcendence’ in Spanish jurisprudence: claimants who had suffered harm at the hands of non-state actors had to provide written proof that the harm was inflicted due to their sexual orientation (irrespective of their identity) – otherwise they would be returned to (re-)concealment.

Chapter 5 addresses ‘discretion’ reasoning in sexuality-based asylum jurisprudence in Germany. In contrast to France, Germany has a tradition of focusing on the claimant’s identity – only if the claimant was irreversibly and fatefully determined by their sexual orientation were they entitled to protection. The rationale was that under such circumstances, the sexual orientation would inescapably become visible. In cases where a ‘mere inclination’ was found, claimants were deemed able to exercise restraint such that they could be returned to their countries of origin. Germany takes part in the transnational judicial dialogue more actively than France or Spain, and the judgments rejecting the ‘discretion’ requirement have had a notable impact. Whereas the notion of irreversibility has been given up, however, it has in substance been transformed, such that decision-makers now require the sexual orientation to be ‘identity-defining’. As a result, the focus on the claimant’s identity persists, and claimants whose sexuality is not found to be defining their identity are rejected.

Chapter 4 analyses French sexuality-based asylum judgments. ‘Discretion’ reasoning emerges in the shape of a focus on behaviour: in French jurisprudence, claimants were traditionally protected only if they had sought to externally manifest their sexual orientation in their country of origin. Otherwise they were sent back to continued ‘discretion’. This ‘discretion’ reasoning ‘in reverse’ was barely affected by the three judgments on ‘discretion’. As the latter operated on a ‘discretion’ requirement, they appeared only marginally relevant to French jurisprudence, which undertook the opposite assessment of whether claimants had been open about their sexuality. The Qualification Directive in contrast has led to a reconceptualisation of the French social group definition. The public manifestation requirement was dropped, whereas under the new definition, claimants now need to ‘claim’ their sexual orientation and be perceived as a group by the surrounding society. Since claimants had been ‘outed’ in all reviewed judgments – and therefore presumably ‘claimed’ their sexual orientation, it is unclear how this definition plays out for claimants who have successfully concealed their sexual orientation in the past.

The introductory chapter presents the view, widely reflected by legal academics, UNHCR and senior judiciary in leading refugee law jurisdictions, that the Refugee Convention has very limited relevance to displacement across borders in the context of disasters and climate change. Some key examples of this perspective are presented and a connection is made between the expression of this view and what the book terms the ‘hazard paradigm’ to understanding disasters. The chapter notes that much of the jurisprudence reflecting the hazard paradigm has relied upon disasters as an aid to articulating the scope of the refugee definition. The argument is advanced that the critical analysis of epistemological and doctrinal assumptions underpinning this 'dominant view' helps to clarify the contours of the refugee definition in general, as well as in the specific context that is the focus of the book.