Questioning Techniques and the Assessment of Credibility Ch 5... · questioning techniques that are...

Chapter 5 – Questioning Techniques and the Assessment of Credibility

Questioning Techniques and the Assessment of Credibility

Learning Objectives

Principles for effective questioning of refugee claimants

Forms of questioning to avoid

Types and sequencing of questions

Guidelines for making an assessment of credibility in a refugee context

Inter-cultural awareness and communication

Seminar for New Refugee Law Judges 5-1

5-2 February 2005



Table of Contents

Questioning Techniques ........................................................................................... 3 Principles for Effective Questioning...................................................................... 3 Forms of Questioning to Avoid ............................................................................. 6 Types and Sequencing of Questions ...................................................................... 7

The Assessment of Credibility ............................................................................... 11 General Guidelines for Assessing Credibility ...................................................... 12 Additional Factors To Take Into Account............................................................ 16 A List of Common Misdirections and Errors....................................................... 18

Inter-Cultural Awareness and Communication................................................... 19 Sources of Misunderstanding............................................................................... 20 Guidelines on Inter-Cultural Communication...................................................... 22




Earlier in these materials, it was suggested that refugee status determination judges should take a proactive approach. As a result, there will be occasions when judges will need to question refugee claimants directly. This chapter begins with an overview of questioning techniques that are particularly applicable in the context of a refugee status determination proceeding. It then sets out guidelines and special factors to consider in the assessment of credibility. The chapter concludes with a special section on inter-cultural awareness and communication. Additional issues that may arise in claims involving women, children, victims of torture, and mentally disturbed persons, are covered in Chapter VI.

Questioning Techniques1

Principles for Effective Questioning

Basic Approach Questioning is necessarily circumscribed by the special nature of refugee status determination. To ensure that the evidence upon which the claim will be assessed is reliable, you must be on the look out for various inhibitors to communication and work to minimise their impact in the interview/hearing. Generally speaking, it is best to allow claimants to tell their stories in their own words and at their own pace as opposed to having them respond to a series of narrow or leading questions.

Convey Appropriate Body Language It is important that you learn to convey appropriate body language. Information is communicated nonverbally through: eye contact, facial expressions, body posture and body tension, hand gestures and body movements, and the way we

1 These materials were adapted from a number of sources, including: Questioning Techniques (IRB, 1994), Questioning on Sensitive Issues (IRB, 1995), Questioning Skills" Refugee Hearing Officers' Skills Training Program (prepared by the Advocate's Society), Interviewing Applicants for Refugee Status (UNHCR, 1991) Draft Module on Interviewing Applicants for Refugee Status, Joseph B. Stern (Consultant to the UNHCR), John A. Olah The Art and Science of Advocacy (Carswell, 1990) and Lee Stuesser An Advocacy Primer (Carswell, 1990).

5-4 February 2005


position ourselves in relation to another person. A substantial portion of nonverbal communication that takes place is not consciously noted. The object of maintaining appropriate eye contact, and maintaining an appropriate body posture and tone of voice is to communicate that you are interested in and respect what the claimant is saying and to avoid conveying power or superiority. Generally speaking (there may be cross-cultural differences that need to be taken into account) eye contact should be natural, steady and direct without constituting a stare. Body posture should be natural, attentive and relaxed. As a rule, avoid gestures that suggest disapproval or disbelief. Questions should be asked at an appropriate pace. Avoiding reading or shuffling papers while the claimant is speaking. Also, remember to address your questions directly to the claimant as opposed to the interpreter.

Establish a Good Rapport with the Claimant Early On Make an effort to establish a good rapport with the claimant early in the hearing/interview. This will reduce the claimant's anxiety about being questioned by the decision-maker in his or her case. Also, make sure that the claimant has a clear understanding of the purpose of the interview/hearing, the process, and the roles of the various parties present, before questioning begins.

Keep Questions Simple and Use Plain Language Questions should be brief, uncomplicated and in plain language. Avoid using academic, legal, technical, jargon or other language that may confuse the claimant. Ask questions that can be easily understood and unambiguous. Do not put multiple facts in a single question – one fact, one question. Moreover, do not ask multiple questions at the same time, as this is likely to confuse the claimant. Formulating your questions with clarity and precision will increase the validity and reliability of the questioning.

Detect And Correct Misunderstandings As You Go Be alert to misunderstandings of your questions and take the first opportunity to correct the misunderstanding by re-framing the question.

Engage in “Active Listening” During Your Examination Active listening is the skill of careful attention and perception in trying to understand what is said by the claimant. The goal of active listening is to ensure that the verbal information is accurately received. Active listening to testimony can provide clues that may be important to follow-up and probe for further clarification. To check your perception, it can be useful to reflect statements back to the claimant. For example: “You say you felt surprised to find out that the police were releasing you without payment of a bribe”, “You say you feel angry with yourself for putting up with this abuse for so long.”



Use “Headlines” to Control the Subject Matter of the Examination While you need to allow the claimant to testify in his/her own words, you should not allow the claimant to ramble on about non-essential details and irrelevant background information. One way to exercise some control over the subject matter of the examination is to use “headlines” that announce each phase of the evidence as you come to it, such as “now I am going to ask you about February 27, 2004”. Thus, wherever appropriate, you should provide the claimant with the relevant date, location, and other information that can assist the claimant to answer the questions being asked.

Provide A Basis For Expressing Judgement Or Estimation When asking the claimant to express a judgement about such things as feelings or to estimate such things as distances and times, you should assist the claimant by providing a comparative basis for that judgement or estimate. Do not ask: “were you there a long time”, or “was it a large group?” But rather ask, depending on the context: “how long were you there?” or “how many people attended the meeting?”

Be Aware Of Inhibitors To Communication A claimant may be unwilling or unable to give information, for example, due to trauma, cross-cultural issues, gender issues, psychological disturbance, memory difficulties, or fear - of persons in authority, of endangering relatives or friends, of the consequences of rejection, of the hearing process, of the reaction of others present at the hearing to information divulged at the hearing, of the interpreter (e.g. if the interpreter is from the same country as the claimant, or there are age, attitude, power, or gender issues). Be Aware of the Impact of Interpreters The filtering process that arises when evidence is given through an interpreter provides fertile ground for misinterpretation and misunderstanding. One runs the risk of assessing the credibility not of what the claimant actually said, but of the interpreter’s version of what was said. When an interpreter is involved you should stay conscious of the fact that innocent misunderstandings are a real possibility and not be quick to assume that a discrepancy has occurred.

Use Minimal Encouragements Minimal encouragements are a gentle and neutral way of persuading the claimant to continue and are an indication that you are focusing on him/her and following his/her testimony. It is sometimes unnecessary or even damaging to the success of the hearing to introduce a new question before the claimant has completed his/her answer to the previous question. A better approach is to use some form of verbal prompting such as “and then,” “umm humm,” and “right” or the repetition of a few key words from the claimant's previous response, such as “you were frightened…”

5-6 February 2005


Use Role-Plays Role-plays can be used effectively in some situations. An example might be where the claimant has said that she went door to door promoting a political party. You could ask the claimant to role-play herself in that scenario.

Forms of Questioning to Avoid

Do Not Expect The Claimant to Have Perfect Recall Refugee claimants, like all people, and sometimes with more justification than most, may be unable to recall some information. Times, dates, locations, distances, external events, and even significant personal experiences may be forgotten or distorted over time. In particular, memory for dates and times is “notoriously unreliable”. In addition, some information may be “forgotten” because it is of little significance to the claimant. For example, knowing the exact birth dates of family members may not be important in some cultures.

Do Not Ask Judgmental Questions Judgmental questions may give the claimant the impression that you are unwilling to listen to the response with an open mind. A good rule of thumb is that questions starting with “why didn't you...” may provoke defensive feelings they should be used with caution, especially during exploration of sensitive areas of the claimant's testimony. An example of a judgemental question would be: “Why didn't you take your children with you if they meant so much to you?” Judgemental questions are not the same as questions that indicate to the claimant that the questioner is having difficulty understanding or believing the testimony. Thus, in some situations, it will be appropriate to say, “I am having trouble understanding how you travelled so far in such a short time, could you please explain how you did it?”

Do Not Ask The Claimant to Make Legal Conclusions Examples of this type of question is: “Were you ever persecuted on account of your political opinion?” or “Is that your country of habitual residence?” Such questions are likely to result in confusion rather than clarification. The claimant may be unfamiliar with the terminology and unable to relate his/her experiences to these particular categories. A better approach would be to break these general questions into steps that will accumulate relevant details, allowing an accurate judgement to be made at the conclusion of the questioning.

Do Not Ask The Claimant To Speculate You should avoid asking the claimant to speculate or comment upon matters that are not within the



claimant’s personal knowledge, for example: “How were the police able to track you down?" A better approach would be to ask: “Do you know how the police were able to track you down?”

Avoid Breaking Silences Too Quickly Sometimes, an interested and expectant silence from the questioner may encourage a claimant to talk more freely. Breaking a silence too quickly may deprive the claimant of the opportunity to respond effectively. You should only interrupt excessive silence. When you encounter silence, don't assume that the claimant is buying time to make up a false answer. It is more likely that he or she simply needs time to collect his or her thoughts. Silences are more likely to occur following a general or open question than a direct or closed question. For example, a response to the question “What happened to you after the military seized power?” is likely to be preceded by momentary silence while the claimant gathers his or her thoughts together. Avoid the tendency to interrupt the silence with a more specific question such as “Were you ever arrested?” While this second question may produce a quick response, you will be depriving the claimant of the opportunity to reveal the importance he or she attaches to the issues that will emerge in his or her response to the first question. If the silence becomes excessive and you do need to interrupt, use a more general question such as, using the above example: “Could you tell me about some of difficulties you experienced after military took over?”

Do Not Press The Claimant For Too Many Details People do not perceive all of the details of any given event and and if you press the claimant for too much detail, they may unconsciously “fill” in the details they can't remember.

Avoid Leading Questions Leading questions should be used cautiously as they can easily cause distortion in the context of refugee hearings.

Types and Sequencing of Questions

A question's form often affects both the willingness of a claimant to provide information as well as the breadth of the information provided. The choice of using an open or closed question will have a significant impact on the claimant's response.

Open Questions

At one end of the spectrum are open-ended or open questions. These are questions that allow the claimant to select the subject matter for

5-8 February 2005


discussion, or select information related to the general subject that the claimant believes is pertinent and relevant. Another way of describing an open question is one that cannot be answered with “yes,” “no,” or a simple statement of facts. Typical open questions are:

What made you decide to leave your country? What happened after the coup? Please describe your involvement with the political party Why do you think you will be arrested if you return to your country? What happened after the police entered the room? Did anything else happen? Why did you do that? Is there anything further that you can tell me about that?

The broad scope of open questions implies that the questioner respects the judgement of the claimant and relies upon him/her to select the information that is relevant to the purpose of the hearing. The advantage of these broad questions lies in the implicit respect they show for the claimant and in the potentially wide range of responses they will elicit. They give claimants greater opportunity to discuss topics relevant to them. An open question also provides information upon which more specific or direct (closed) questions can be based. “How and “why” questions are very useful open questions that can be used to elicit evidence about a person’s motivation, thought processes and reasons for thinking or doing something. They are very good questions to use for assessing credibility.

Open questions can also encourage a claimant to elaborate on an important point or topic in his or her own words. These open questions are likely to reveal more information than specific questions, such as “What is the usual penalty for distributing pamphlets?” would elicit. Following is an example demonstrating the usefulness of open questions:

[The claimant indicated earlier that he claimant escaped from prison on March 15, 2004. He and two friends were unloading a food truck that was parked next to the prison wall around 10 p.m. at night. When the guards weren't looking, the three of them climbed on top of the truck and over the wall and ran about 8 kilometres to the border of the neighbouring country.]

Questioner: Could you please describe your escape from prison?

Claimant: Well...the food truck usually came on Monday afternoons, but this time it came late - around 9 p.m. There was a shortage of light bulbs at the prison so there were only a few lights on while we were unloading the truck. The truck was parked next to the wall of the barracks.



The guard walked away to sign the invoice and three of us climbed over the top of the truck and onto the wall ..........

By asking this open question, the claimant is able to provide details of the escape that may help establish his credibility. If instead the questioner had asked a number of closed questions such as “How many guards were present? Why were you unloading food at 10 p.m. at night?” the claimant may have omitted credibility-enhancing details such as the truck arriving on a Thursday (March 15, 2004 was indeed a Monday) and the panel may have gained a different impression of the event. Furthermore, the claimant who is fabricating will have a more difficult time doing so in response to open questions.

There are, however, situations where the use of open questions will be harmful to the progress of the hearing. The ability to offer a relevant response to an open question depends on the claimant's understanding of the questioner's frame of reference (that is, appreciates what kind of information the questioner is seeking), and the claimant's ability to articulate and organise his/her thoughts. If the claimant lacks these abilities, the hearing may become confused and unfocussed if open questions are used. Questioners must use their judgement concerning the capacity of the claimant to respond to open questions taking into account such factors as the claimant's education and culture.

Closed Questions

At the other end of the spectrum are closed questions. A closed question calls for a short response, usually “yes” or “no” or a simple statement of facts. Closed questions not only select the general subject matter, but in addition choose which aspect of the subject matter the questioner has decided is relevant and should be discussed by the claimant.

Typical closed questions are:

When did you leave your country? Who paid for your tickets? What route did you take to come to Canada? How many people were in the room? How many times were you arrested? Where were you detained?

In restricting the claimant to discussing a particular point, the questioner has largely decided what information is relevant. The claimant is asked to put aside whatever notions of importance he/she may have, and adopt the questioner's priorities.

5-10 February 2005


Closed questions are generally more successful following open questions or where the questioner needs to fill in details, clarify ambiguities, or test the credibility of the claimant where the initial testimony has been vague or evasive.

When using closed questions, one should try to make the questions short; long complicated questions defeat the purpose of the closed question.

Sequencing Questions and The T- Funnel Technique

Choosing an appropriate sequence for your questions in another important skill. You should not over-use any one type of question during a particular line of inquiry. A continuous string of either open or closed questions is not a good idea. Generally speaking, alternating between open and closed questions can lessen the tension for both the claimant and the questioner.

A very effective way to sequence questions is to use the T-funnel approach. At the wide end of the funnel are open questions and at the narrow end of the funnel are the closed questions. You may repeat the same T-funnel procedure for each new issue.

T- Funnel

Can you please tell me what happened when the

soldiers entered your home in July 1997?

And what happened next?

Did the soldiers tell you what

they were searching for?

Did you file a complaint?

Did the soldiers ever

return to your

house?

As you can see, open questions set the scene and are used to start the process of drawing out details: narrower questions are used as follow-up to direct the claimant's attention to increasing levels of detail.

The T-funnel has two major advantages. First, it allows both the claimant and questioner to exhaust their respective senses of relevancy.



Second, it provides for wide memory stimulation by exhausting both recall and recognition.

Rigid adherence to the T-funnel sequencing technique is neither necessary nor desirable. Depending on the nature and flow of the examination it may be more effective to use a string of open or closed questions or to alternate between open and closed questions. The T-funnel works best when a subject is first introduced and therefore may not be appropriate during questioning later in the hearing or during a cross-examination. Regardless of whether the T-funnel sequencing technique is used, questioners should avoid a long series of closed questions.

Probing and Testing Questions

Where, following the approach to questioning outlined above, there remain credibility concerns, you may need to ask probing and testing questions. As will be seen below under “Assessment of Credibility,” it is important that any discrepancies be put to the claimant and that the claimant be given an opportunity to explain before a negative assessment of credibility can be made.

The object of confronting the claimant with probing and testing questions is to reduce areas of doubt or confusion about the factual basis upon which the claim will be determined. In probing apparent discrepancies in a claimant's actions, the questioner should be as neutral as possible and refrain from expressing personal judgement. Vigorous cross-examination techniques are not appropriate in the refugee status determination context.

The Assessment of Credibility

There are a number of factors to take into account when assessing credibility in the context of refugee status determination. Misrepresentations, embellishments or failure to divulge relevant facts can occur for a variety of reasons and untrue statements by themselves are not a reason to refuse refugee status. Untrue statements might be explained in the course of further examination, or re-evaluated when all the circumstances of the case are known. It is the decision-maker's responsibility to evaluate such statements in the light of all the circumstances of the case. It must be recognised that a person who, because of his or her experiences, was in fear of the authorities in his or her own country may still feel apprehensive vis-à-vis any authority

5-12 February 2005


and may therefore be afraid to speak freely and give a full and accurate account of the case (UNHCR Handbook, paragraph 198). It must also be recognised that it may be very difficult to assess credibility in an inter-cultural context and using an interpreter.

General Guidelines for Assessing Credibility

1. It is important to consider the evidence in its entirety and with an objective and open mind

It is important to remember that all of the evidence must be considered and assessed, not just selected portions of the evidence. Furthermore, when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence. The decision-maker must also maintain an objective and open mind when hearing the claimant’s story and subsequently evaluating the evidence provided by the claimant.

2. There is no requirement of external corroboration of an uncontradicted credible account

Often, a refugee claimant will be unable to support his or her statements by documentary or other proof. In refugee determination, the requirement of evidence should not be strictly applied and the refugee claimant should not be expected to corroborate uncontradicted statements.

3. Exercise caution in rejecting uncontradicted testimony

A decision-maker does not necessarily have to accept testimony simply because it was not contradicted at the hearing. However, caution should be exercised in disregarding uncontradicted statements without reason. For example, it is not generally sufficient simply to indicate that the claimant’s story is “implausible”, without explaining the reasoning behind that finding. The decision-maker should articulate why it is clearly out of line with what is reasonable in the circumstances, and should ensure that this conclusion is supported by



the evidence. Considerable caution is required in this area. A claimant’s uncontradicted testimony ought not to be lightly or readily dismissed.

4. Rejection of some evidence on the basis of credibility does not necessarily lead to the rejection of the claim

Even where a statement is material, and is not believed, a claimant may still be a refugee. The decision-maker must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Generally, if the evidence in the believable statements made by the claimant establishes that the person is a refugee, the fact that the claimant lied on other aspects of his or her case is not a bar to gaining refugee status. Thus, the claim must still be assessed on the basis of the information that was found to be true.

5. A negative finding on credibility should be based on material aspects of the claim

If a claimant’s story is being rejected, the contradictions must relate to central elements or critical points. The existence of contradictions or discrepancies in the evidence is a well-accepted basis for a finding of lack of credibility as are omissions in claimant’s previous statements. However, an adverse finding of credibility based on contradictions must be based on real contradictions or discrepancies that are of a significant or serious nature. Minor inconsistencies, misrepresentations, or concealment in a claim should not lead to a finding of non-credibility where the inconsistency, misrepresentation or concealment is not material to the claim. For example, minor inconsistencies in dates provided by the claimant would not normally support a negative finding on credibility.

Having said this, in appropriate cases, the claimant may be found to be totally lacking in credibility even where the problems with the claimant’s testimony do not relate to core elements of the claim but are nonetheless sufficiently numerous and serious as to call into question the claimant’s general credibility.

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6. An adverse finding of credibility must have a proper foundation in the evidence

An adverse finding of credibility must be supported by trustworthy evidence. The claimant’s statements should not be rejected based on conjecture or mere speculation and clear reasons should be provided for rejecting the claimant’s statements. Decision-makers need to abandon common law prejudices against hearsy evidence, which is very common in refugee cases. Evidence must not be rejected simply because it is hearsay.

In assessing evidence that is being used to contradict the claimant, factors such as the source of the information, the objective of the person in providing it and the methods used to gather the information should be considered. In addition, the decision-maker must also determine the weight or probative value to be assigned to such contradictory evidence. For example, a document containing general information may not always be sufficient to refute testimony dealing with a specific, individualised event. Similarly, the fact that a document does not refer to an event reported by the claimant cannot easily be used to cast doubt on the credibility of the claimant’s statements.

7. Do not display excessive zeal in attempting to find contradictions

Decision-makers should not microscopically examine the claimant or be over-vigilant in examining the evidence. This is especially so where an interpreter is being used. The decision-maker must not search through the claimant’s evidence looking for inconsistencies or for evidence that lacks credibility thereby “building a case” against the claimant’s credibility.

8. Make sure you are well informed when evaluating credibility

The credibility and probative value of the claimant’s statements have to be evaluated in light of what is generally known about the conditions and laws in the claimant’s country of origin, as well as the experiences of similarly situated persons in that country.



9. Make clear findings on credibility and provide adequate reasons for such findings

If a claim is rejected because of a lack of credibility, clear reasons must be given. Those statements that appear not to be credible must be clearly identified and the reasons for such conclusions must be clearly articulated. The decision-maker owes a duty to the claimant to give his or her reasons for rejecting the refugee claim on the basis of credibility in clear and unmistakable terms. It is not enough to say that the evidence is not believed; otherwise there will be an appearance of arbitrariness.

10. Confront the claimant with your credibility concerns

A claimant must be confronted with the contradictions in the claimant’s statements or other parts of the evidence and given an opportunity to provide an explanation. If the explanation is rejected, the decision-maker should clearly explain in his or her reasons for decision why the explanation has been rejected. The explanation must have been unreasonable or otherwise unsatisfactory. The failure to confront the claimant in this manner may be treated as an acceptance of the truth of the statements.

11. Avoid relying on demeanour as a measure of credibility

The demeanour of the claimant (comportment, attitude or behaviour of the claimant) is not an infallible guide to whether the truth is being told; it is often an unreliable measure of credibility. Decisions can easily come to the wrong conclusion when trying to assess demeanour. For example, what appears to be an inappropriate expression on the claimant’s face may be completely appropriate in the claimant’s culture. Thus, the decision-maker ought not to form subjective impressions based on the physical appearance and mannerisms of a claimant. In general, the courts have attempted to diminish the role of demeanour in the final assessment of credibility.

12. Testimony given under oath is presumed to be true

In situations where the claimant has given testimony under oath, the decision-maker is to presume that the statements made the claimant are

5-16 February 2005


truthful. This presumption can only be rebutted if there are valid reasons doubting the truthfulness of the claimant’s testimony.

13. The claimant should receive the benefit of the doubt

While technically speaking, the burden of proof is on the refugee claimant, considering the nature of refugee claims, it is hardly possible for a refugee to “prove” every part of his or her case. Therefore, it is frequently necessary to give the claimant the benefit of the doubt.

If the claimant’s account appears credible, he/she should, unless there are good reasons to the contrary, be given the benefit of the doubt. The benefit of doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the claimant’s general credibility. The claimant’s statements must be coherent and plausible, and must not run country to generally known facts. (UNHCR Handbook, paragraphs 196, 203, 204).

14. Take the characteristics of the process into account

Refugee determination processes are often designed to be expeditious, informal, and investigative in nature. Almost all of the oral evidence given is received through the filter of interpreters. The end result of these characteristics is that the process is fraught with the possibility of misunderstanding, even among people acting in good faith. Nervousness, trauma or even cultural differences may play a role in creating confusion or misunderstandings. All of these characteristics have to be taken into account when assessing the credibility of the claimant’s evidence.

Additional Factors To Take Into Account

It is important to bear in mind that factors that appear to indicate a lack of credibility may also be consistent with other rational conclusions. The factors that may indicate a lack of credibility must be assessed in each individual case and in the broader context of the special pressures that refugees frequently face:



A claim may be credible even though the person’s full history was not revealed at the earliest possible opportunity. Genuine refugees may well wait until they are safely in the country before sharing their experiences with a stranger. They may be fearful of endangering others or suspicious of persons in authority. Incomplete or inconsistent statements made by claimants shortly after arrival may suggest more about their mental state after the trauma of their escape than about their credibility.

A claim may be credible even though the claimant submits information during a second examination which was not submitted during the first examination. The claimant may have been reluctant to speak freely during the first examination but may be prepared to provide a full and accurate account on the second occasion.

A claim may be credible even though the claimant has avoided formal migration channels. The latter are established for ordinary migrants who, unlike refugees, can plan and implement legal departures in an orderly fashion. Thus, the existence of an orderly departure programme should not influence the credibility of the claimant who refuses to avail himself of its services.

A claim may be credible even though it is similar to other claims. A claimant should not be suspected of fabricating his or her claim simply because the pattern is similar to the pattern of other claims.

A claim may be credible even though it is different from other claims. A claimant should not be suspected of fabrication because his or her statements are different from statements made by other refugee claimants originating from the same country.

An earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.

The consistency with which a claimant has told a particular story may be a relevant factor in determining credibility, though the fact that a claimant has changed the story is not necessarily indicative of deliberate untruthfulness.

Concealment of parts of the story does not necessarily detract from the credibility of the claimant. A genuine refugee may not be willing to tell the full story for fear of endangering relatives or friends, or for fear of sharing this information with persons in positions of authority. The claimant may also fear the consequences of having his or her claim rejected. In addition, the applicant may have been “coached” by others not to tell the whole truth during the interview or to tell a particular story.

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A List of Common Misdirections and Errors2

1. The decision reads as if the decision-maker is looking for a reason to dismiss the application on credibility grounds. This tendency is to be strongly discouraged.

2. The decision-makers lists features of the claimant's case (which in themselves may appear innocuous) and then sums up the features as warranting an adverse credibility finding.

3. The decision-maker refuses to accept the claimant's account but does not provide reasons for this finding.

4. The decision-maker makes adverse credibility findings on the basis that the claimant's account does not accord with the decision-maker's own (subjective) notion of what would have been the likely course of events. Another person viewing the same facts could quite easily reach the opposite conclusion.

5. The decision-maker fails to consider cultural differences or translation difficulties. For example, a decision-maker concludes that letters from a claimant's family were contrived because of the manner in which they had been signed, without examination of the question whether cultural differences or peculiarities or translation factors could explain the perceived "oddities".

6. The decision-makers mades unclear or confusing holdings. Frequently, the holding of the decision-maker in relation to credibility of the claimant or a document is unclear or confusing. Exactly what the decision-maker has held cannot be determined. Also, sometimes decision-makers apply the benefit of doubt principle in a confusing manner when dealing with credibility findings.

7. The decision-maker applies a high standard of proof or a technical rule of evidence, e.g. hearsay.

2 Allan Mackey, Chairperson, New Zealand Refugee Status Appeals Authority



Inter-Cultural Awareness and Communication

The assessment of credibility through cultural barriers is the norm for refugee determination. We all process information through the filter of our own culture. Likewise, a claimant presents evidence in a manner that reflects his or her cultural background. A true, common understanding of what is being said may not occur due to these cultural filters.

All cultures use particular verbal and non-verbal cues to signify particular “meanings.” Failure to understand these culturally-specific cues can lead to misinterpretation when people from different cultures are communicating. In the context of refugee determination, the assessment of credibility through cultural barriers poses particular challenges.

In order to minimise misinterpretation, the decision-maker needs to be aware of their own culturally imbued ways of thinking and viewing the world. The decision-maker must understand how the perception of a given message changes depending on the cultural viewpoint of those communicating. Failure to recognise that cultures have different norms in terms of what is considered acceptable for communication between people of different gender, age, level of education or marital status can also lead to misunderstandings.

Terminology

In order to examine the dynamics of inter-cultural communication, it is first necessary to define some of the terminology which is used in connection with it.

Communication: The action of sending and receiving messages using verbal and non-verbal means.

Culture: The integrated patterns of human knowledge, belief, and behaviour that depend upon one’s capacity for learning and transmitting knowledge to succeeding generations.

Inter-cultural Communication: The action of sending and receiving messages using verbal and non-verbal means between people from different cultural backgrounds. Also called “cross-cultural communication.”

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Sources of Misunderstanding

Language and Speech Patterns

In some cultures, the primacy of words is stressed to convey meaning; however, even in these cultures, the total context out of which a person speaks, even if there is no conscious awareness of it, carries another message that amplifies, changes or modifies what is actually being said. In North American culture, for example, verbal messages tend to be explicit, with words conveying much of the meaning. However, in many Eastern and Middle-Eastern cultures, more information is contained in the context than in the words.

The oral tradition of many rural and indigenous peoples includes long preambles, acknowledgements of others present and humbling of self. Speech patterns of an indigenous person from Guatemala, for example, may appear to be circular and rambling evasively when she or he is attempting to be respectful or deferential. In many cultures, speech patterns reflect a reluctance to invite conflict or controversy. It is more acceptable to agree to something and then not comply, than to deny or correct inaccurate assertions or misunderstandings, particularly when made by an elder or authority figure. Quite common words can carry different meanings from one culture to another and be a source of misunderstanding. For many Africans, for example, the words “brother” and “cousin” are not limited to close relatives but extend to all members of the tribe. Different cultures assign different meanings to speaking in loud tones or soft tones, as well as the manner in which words are enunciated. Subtle meanings and important nuances are extremely difficult to convey when the patterns of one language are grafted onto another, as in the case when people are communicating through an interpreter. The filtering process that arises when evidence is given through an interpreter provides fertile ground for misinterpretation and misunderstanding. One can thus run the risk of assessing the credibility not of what the claimant actually said, but of the interpreter’s version of what was said. Thus, a decision-maker must take into account the fact that the claimant is heard and questioned through an interpreter and that innocent misunderstandings are possible. Furthermore, the decision-maker must ensure that the interpreter is competent and provides an accurate rendering of the testimony.



Thought Processing

Thought processing, the way people view the world around them, is culturally based. Perceptions of time and dates, of truth and falsehood can vary from culture to culture. In most urban, Northern-European cultures, people will commonly pinpoint particular dates while recounting personal experiences. In many Southern, agrarian societies, however, people frequently do not know their date of birth or age. Birth certificates are uncommon and birthdays are rarely celebrated. Many people cannot correctly state their year of birth. Events are “dated” in reference to other events or family circumstances rather than dates. An event may be tied to such local chronologies as a religious festival or phase of the seasonal cycle rather than a fixed date. Life is governed by day and seasonal cycles rather than particular months and years.

Gender Roles

In some cultures, men and women act or speak differently when talking to a member of the opposite sex. For some, communication between members of different genders is strictly prohibited unless they are married to each other or very close relatives. Even in the case of married couples, it may not be unusual for a woman to be unaware of certain details of her husband’s experiences. In certain cultures men do not share the details of their professional, political, military or social activities with their female family members.

Even in cultures where gender roles may be somewhat more relaxed, women may be very reluctant to speak openly to an authority figure, particularly where the subject of conversation concerns personal or bodily matters. The notion of what it means to be a man in many cultures includes the ability to maintain one’s dignity in a situation of terror. Frequently this means that men will not admit to terror or show any emotion, even while recounting extremely frightening or painful events. Please refer to Chapter V for a more detailed discussion of special issues arising in claims made by women.

Body Language

Differences in how people walk, stand, look at each other or sit occur not only between cultures, but also between genders and subgroups within a culture. Miscommunication can easily result when a person from one culture expects someone from another culture to understand the non-verbal behaviour or when the person receiving the message

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does not respond as the sender expects. For example, some cultures stress the importance of gazing “eye to eye” when conversing with another person, regardless of age, gender or social position. In such cultures, to avoid doing so may be interpreted as evidence that one is “shifty” or “hiding something.” In other cultures, however, it is important to look down and only glance from time to time at the speaker, depending on his or her age, gender and social standing.

Guidelines on Inter-Cultural Communication

Misunderstandings rooted in the differences between a refugee claimant’s and the decision-maker’s cultural backgrounds can seriously distort the process of communication during a refugee hearing and impair the decision maker’s ability to make an accurate credibility assessment. In this regard the importance of cultural sensitivity training cannot be overemphasised.

Following are some guidelines for the refugee determination process:

1. Be careful not to use culturally specific idioms and colloquial expressions when posing questions to the refugee claimant. It is often helpful to check what the refugee claimant has understood after you have spoken and repeat what you have understood after she or he has spoken to ensure effective communication.

2. Remember to take cultural differences into account when evaluating the nature of any inconsistencies or contradictions in the refugee claimant’s testimony. Avoid inferences about plausibility and “common sense” that are premised on culturally based assumptions. Try to understand the assumptions that may guide the behaviour and attitudes of the refugee claimant. Above all, be aware of the extent to which we are all prisoners of our culturally determined ways of perceiving and thinking. The resulting frequency of profound misunderstandings underscores the necessity of giving refugee claimants the benefit of the doubt.

3. Give the refugee claimant time to tell their story in their own way and in their own words. Avoid cutting off a refugee claimant’s “long story” and ordering him or her to “get to the point” or answer “yes” or “no.” This can be a frightening or disorienting command. For people from many cultures a yes-or-no question implies a 50% chance of obtaining an accurate response. Because in many cultural contexts an incorrect or unwelcome answer can have dire



consequences, this situation may exacerbate the refugee claimant’s fear, confusion and inability to respond.

4. Avoid the use of family members as interpreters. Because of societal taboos, relevant information concerning, for example, sexual abuse, may be withheld. Interpreters must be selected and evaluated very carefully in order to ensure competence and accuracy. However, even when this is done, a decision-maker must take into account that the filtering process that occurs when evidence is received through an interpreter carries a risk that one is not hearing what the claimant actually said, but the interpreter’s version of what was said.

5. Consider requesting expert evidence on the subject of the refugee claimant’s culture. This can be particularly helpful when the decision-maker has had little prior experience with cases from the refugee claimant’s country of origin. Given the potential impact of inter-cultural misunderstandings on credibility determinations, specialised evidence on the subject of the refugee claimant’s culture will enhance the overall fairness of the hearing. A sociologist, for example, may be able to provide an analysis of how the history and current situation in a particular country gives rise to a climate of fear and mistrust of authority. An expert may be able to comment upon the extent to which communication patterns, which may appear evasive and reticent to the decision-maker, are a direct result of the survival mechanisms developed within a particular society when relating to outsiders and authorities. An analysis of how specific historical experiences have influenced the cultural norms of speech and behaviour may go a long way to clearing up any confusion and misunderstanding.

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