Asylum Adjudication, Mental Health and Credibility Evaluation*

AuthorZac Steel,Mehera San Roque,Linda Pearson,Jill Hunter
Date01 September 2013
DOI10.22145/flr.41.3.4
Publication Date01 September 2013
SubjectArticle
ASYLUM ADJUDICATION, MENTAL HEALTH AND
CREDIBILITY EVALUATION*
Jill Hunter,
1
Linda Pearson,
2
Mehera San Roque
3
& Zac Steel
4
ABSTRACT
This article examines the central role that credibility assessment plays in refugee
determinations. It draws on t he authors' own empirical study, Tales of the
Unexpected, to display the complex ways in which applicants' po or 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 an y
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.
5
_____________________________________________________________________________________
* We acknowledge and remember Ronnit Redman, wh ose intellectual passion and drive was
the in stigator 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.
1
Professor, Faculty of Law, UNSW, Australia.
2
Senior Visiting Fellow, Faculty of Law, UNSW, Australia.
3
Senior Lecturer, Faculty of Law, UNSW, Australia.
4
Associate Professor, Psychiatry Research & Teaching Unit, School of Psychiatry, UNSW,
Australia.
5
From the case of Mr S. Also noted in Jill Hunter 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). Referred to in this ar ticle 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
472 Federal Law Review Volume 41
____________________________________________________________________________________
INTRODUCTION
In the vast majority of instances refugee decision making require s decision makers to
consider environments that have nothing in common with Australian civil society. In
addition, it engages cross-cultural challenges and linguistic barriers and is regularly
conducted in an evidentiary void. This artic le, like its companion pieces,
6
explores the
findings from the first cross-disciplinary study of its kind [the Tales study] on the role
of expert psychological evidence in the determination of refugee claims. A core finding
of the Tales study was that decision makers in the sample ra rely expressed reliance on,
or indeed any reference to, psychologists' diagnoses and conclusions presented in
evidence in the form of reports. This was despite the fact that a high proportion of the
applicants were experiencing symptoms of post traumatic stress disorder (PTSD) and
other mental ill health, and that these sy mptoms were often affecting them in ways
that were likely to have a direct bearing on their capacity to present their case. On
occasion, as the masthead quote exemplifies, decision makers often disregarded
experts' conclusions i n favour of their own observations. This article takes this finding
as its starting point and explores the role psychological expertise could have played in
refugee status decision making. We argue that the failure to integrate the insights from
the mental health ex perts into the decision makin g process, however generated,
represents a missed opp ortunity, and this is particularly so given potential impact that
the mental health of the applicants may have had on outcomes.
7
Our analysis of the findings of the study is informed by the recognition that
credibility and pro of challenges are particularly acute within the context of refugee
determination hearings
8
and a growing awareness of the significance of evidentiary
_____________________________________________________________________________________
(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 fin dings
and the outcomes of the decision making process see Kuowei Tay 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 S cience &
Medicine 106. In addition, two previous publications have reported the key men tal health
findings from the cohort of 73 asylum seekers on which the Tales study focused: Derek
Silove et al, 'The Impact of the Refugee Decision on the Trajectory of PTSD, Anxiety, and
Depressive Symptoms among Asylum Seeker s: A Longitudinal Study ' (2007) 2 American
Journal of Disaster Medicine 321; Derek Silove 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.
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 Gregor Noll, 'Re-mapping Evidentiary Assessment in Asylum
Procedures' in Gregor Noll (ed), Proof, Evidentiary Assessment and Credibility in Asylum
Procedures (Martinus Nijhoff Publishers, 2005) 1. See also Michael Kagan, 'Is Truth in the
Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination '
(2003) 17 Georgetown Immigration Law Journal 367; James A Sweeney, 'Credibility, Proof and
Refugee Law' (2009) 21 International Journal of Refugee Law 700, 701 (noting that the term is
both, 'conceptually elusive' and 'adjudicatively influential'); Deborah Anker and Matthew
Muller, 'Book Review: Explaining Credibility Assessment in the Asylum Procedure' (2007)

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