REFUGEE STATUS DETERMINATION, NARRATIVE AND THE ORAL HEARING IN AUSTRALIA AND CANADA by ANTHEA FAY VOGL B.A., University of Sydney, 2007 LL.B., University of Sydney, 2007 LL.M., McGill, 2011 A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) June 2016 © Anthea Fay Vogl, 2016 Refugee Status Determination, Narrative and the Oral Hearing in Australia and Canada Anthea Fay Vogl A Thesis Submitted for the Degree of Doctor of Philosophy Faculty of Law University of Technology Sydney University of British Columbia 2015 CERTIFICATE OF ORIGINAL AUTHORSHIP I certify that the work in this thesis has not previously been submitted for a degree nor has it been submitted as part of requirements for a degree except as fully acknowledged within the text. I also certify that the thesis has been written by me. Any help that I have received in my research work and the preparation of the thesis itself has been acknowledged. In addition, I certify that all information sources and literature used are indicated in the thesis. Signature of Student: Date: 11 November, 2015 iii Acknowledgements While the tangible work of this thesis is represented in the pages that follow, my research has stretched far beyond these chapters. My work here reflects the support of many people and relationships, both old and new, for which I am very grateful. I have had the privilege of the most generous and thoughtful supervision from Jenni Millbank, Catherine Dauvergne and Honni van Rijswijk. To Jenni, thank you for your input and insight into this thesis (and beyond it) at every turn. Your devoted, wise and impossibly organised supervision have been sources of intellectual challenge, encouragement, and very frequently, relief. For this, Malaysian refuels and a steady stream of new, celluloid friends to meet in my thesis breaks, I am grateful. To Catherine, I am so glad I ventured across the Pacific to work with you, and make UBC and Vancouver a part of this project. Thank you for your constant and thoughtful engagement with all aspects of my research and for knowing the best way through all kinds of dilemmas. It has been such a pleasure to learn from and work with you. To Honni, thank you for such meticulous and thoughtful feedback, for many wonderful leads on books and research and for your encouragement throughout. This project was possible because of the asylum seekers who allowed me to observe their hearings. I am grateful for their openness to my research and participation, even as they negotiated one of the most difficult moments in their applications for the right to remain safely in Australia or Canada. I also want to thank the lawyers, advocates and organisations who so generously facilitated my fieldwork and supported this project, especially UNHCR Canada, my Australian ‘research partner’ organisation, and individual lawyers and advocates in Australia and Canada. The exigencies and timelines of day-to-day work in refugee advocacy rarely make incorporating academic research projects easy or convenient. I appreciate both the fortitude and the patience involved. I am very thankful to the Faculty of Law at UTS and my colleagues there, for providing such a supportive environment from which to teach and research. I am grateful to the UBC Faculty of Law and the many people who welcomed me so generously in the year I made Vancouver my home: Sarah Marsden, a most judicious guide to all things Vancouver and who kindly helped facilitate the Canadian aspects of my research, Susan Bazilli, Douglas Harris and Joanne Chung as well as Roozbeh Kianpoor, Maree Fields and Risha Premarajah. My warmest thanks to David Carter, Elyse Methven, Alecia Simmonds, Claire Pettigrew, Miriam Thompson, Huon Curtis, Jemima Mowbray and Min Dark who have read versions of these chapters, provided thoughtful feedback and constantly engaged with this project as it has come together. I am especially thankful to those who ‘went before’ and provided advice, encouragement and support in navigating this PhD business, and to those who have ‘come with,’ especially David and Elyse, who have been the finest and best-humoured company throughout. I also thank Margy Thomas Horton, who provided professional editing assistance. A doctoral thesis is a labour of love (and often some other emotions). Many wonderful friendships have sustained me throughout this time: to Claire P, Mark, Dave, Miriam, Alecia and Huon, thank you. I also thank my family, Shahla, Edward and Martin for their support and care. And finally to Claire Van Vuuren, for the love, the wisest advice and for unfaltering patience and understanding. It is difficult adequately express my gratitude, but I trust the first ‘thesis free’ day will be a good way to start. iv Preface This dissertation is formatted in accordance with the regulations of the University of Technology, Sydney and submitted in partial fulfillment of the requirements for a PhD degree awarded jointly by the University of Technology, Sydney and the University of British Columbia. Versions of this dissertation will exist in the institutional repositories of both institutions. The refugee applicant oral hearings addressed in Chapters Four to Seven were covered by University of British Columbia Behavioural Research Ethics Board, Approval Certificate No H12-01565; and University of Technology Sydney Human Research Ethics Committee, Ethics Reference No 2011-486A. v Table of Contents INTRODUCTION .......................................................................................................1 Theory, Method and Data ...................................................................................................5 The Refugee Convention and the Political Context of Seeking Asylum in Australia and Canada...........................................................................................................................9 Locating the Thesis: RSD, Testimony and Credibility Assessment ..............................14 Thesis Overview and Chapter Summary.........................................................................26 Notes on the Nature of Refugee Testimony and the Presentation of the Hearings in this Thesis............................................................................................................................29 CHAPTER ONE. THE THEORETICAL FRAME: LAW, LITERATURE AND NARRATIVE .............................................................................................................34 Introduction........................................................................................................................34 Part One. On Law and Literature....................................................................................36 Part Two. Law, Literature and Narrative: A Critical Interdisciplinary Approach....40 i. Critiquing the Separation of Law from Literature and Narrative..............................41 ii. Refusing Sentimental and Instrumentalising Approaches to Literature ..................44 Part Three. Narrative as Methodology for Assessing Refugee Testimony ...................51 i. Finding a Critical, Working Definition of Narrative ................................................54 Conclusion...........................................................................................................................57 CHAPTER TWO. RESEARCH METHODS AND DESIGN ...............................59 Introduction........................................................................................................................59 Part One. The Dataset .......................................................................................................62 i. Recruitment and Criteria for Inclusion .....................................................................67 ii. Multiple Forms of Data............................................................................................69 Part Two. Qualitative Methods of Observation and Analysis .......................................70 i. Methods of Observation............................................................................................70 ii. Methods of Analysis ................................................................................................72 Part Three. Limitations of the Thesis’s Method and Analysis ......................................73 i. Limitations of the Non-random Dataset and Hearing Selection Process..................74 ii. Limitations of the Role of Researcher and of Refugee Applicant Testimony .........75 Part Four. The Dataset in Context: Access to Refugee Hearing Data and Silence......77 Conclusion...........................................................................................................................83 CHAPTER THREE. A HISTORY OF THE ORAL HEARING IN RSD IN AUSTRALIA AND CANADA: HOW DID WE GET HERE?..............................85 Introduction........................................................................................................................85 Part One. Refugee Determination and the Oral Hearing in Australia .........................87 i. Determining Status in the Early Days: The Determination of Refugee Status Committee .......................................................................................................................93 ii. Orality and the Emergence of the RSD Oral Hearing..............................................97 Part