(Image credit: Australian Government, Study Australia)

In her 2007 ethnographic study of eight US law schools, Elizabeth Mertz traces the process through which law students learn to “think like a lawyer” in order to become one. She shows how this process is essentially about language: learning to think like a lawyer means adopting new ways of reading, writing and talking.

Crucially, Mertz demonstrates that underlying these processes is a set of linguistic ideologies – assumptions we make about language and how it should manifest in particular social contexts. For example, she identifies a practice in legal analysis and reasoning, as taught in these classrooms: the social characteristics and personal perspectives of people who appear in legal cases and problem questions are rendered irrelevant and made invisible, in favour of the legally relevant facts. Issues of morality and emotion are likewise pushed aside as unimportant.

As students undergo this transformative process of learning to think and speak like a lawyer, Mertz questions the effects this may have on how law students see the world, their ability to see social diversity and inequality and to identify and challenge issues of injustice in their future work.

But what about how students think about themselves? What if they personally face marginalization? And what of their diverse language repertoires? If thinking like a lawyer depends on speaking like one, what is this speech expected to sound like? And what impact does sounding differently have on one’s sense of professional identity and self-worth?

These were just some of the questions raised in my recent digital ethnographic research with students enrolled in a Graduate Diploma in Migration Law and Practice (GDMLP). This one-year university program is required for people who do not have an Australian legal qualification to become Registered Migration Agents (RMAs) and offer professional assistance to people applying for a visa in Australia. Unlike law degrees, which remain difficult to access for many, it has been estimated that at least half of the GDMLP cohort has English as a second language (L2), and perhaps even more are first generation migrants.

I attended online workshops during which students practiced their client interviewing skills through role-plays, observing this practical work and debriefing with them. I also conducted research interviews with students at various points during their study and after graduating, over a period of three years. To have immediate impact, I also offered my interdisciplinary expertise to enhance learning, presenting on various aspects of communication, and helping the teaching team to develop and refine learning materials (see Smith-Khan & Giles 2025).

In a new article, I share some of the ways students talk and think about their study, their future professional goals, their existing strengths, and the skills they wish to improve and how. The discussions brought up beliefs about language, closely tied to ideas about proficiency, professionalism and identity.

Bilingualism: optional benefit, real risk

While every participant who speaks multiple languages planned to use them in their future job, with at least some of their clients, there was a clear hierarchy in how different languages were valued, with English appearing at the apex as non-negotiable, and other languages more as optional extras (see also Piller & Gerber 2021).

Paolo*  The English level, I think it’s very very important too.

Laura   Yeah.

Paolo    I’m Italian, as I said before, I work with a lot of Italians, and they don’t speak English. And will have, a hundred percent sure that I will have a lot of consultations within Italian community. I will go to Italy to do seminars, and that will be in Italian.

Laura   Yeah.

Paolo    So in that way, if you think in that, in that way, you don’t need English, okay?

Laura   Yes.

Paolo    I mean, ‘I don’t need to have a very high English level, because my-, ‘I’m Chinese, I just talk in Mandarin, my consultation in Mandarin, my clients are in Mandarin.’ Okay. And it makes sense. But then you have to do applications in English, you have to study the uh legislation in English. So if the legislation, if you don’t understand properly the legislation, if you mixed up a word, all your translation in Chinese, or in Italian, or in any other language, won’t be, won’t be correct.

Okay? So it’s very, very important that they understand, the people that they want to become a migration agent, that they understand everything. [Paolo, interview 1/2, 2020]

On one level, this makes perfect sense: the work does indeed require close engagement with legal and institutional texts that are only available in English, and application forms required to be submitted to the Immigration Department only are allowed in English. However, this type of discourse also assumes bilingualism is a potential risk to English language proficiency: rather than acknowledging the crucial skills bilingual and multilingual people bring to this work, the fact that they speak more than one language is regarded as a threat to their English. This resembles political and institutional discourses in which the ‘monolingual mindset’ is evident, including in the language proficiency rules around becoming an RMA, and in other areas like skilled migration and university admission, where proficiency is assumed for some, but not for others (Smith-Khan 2021a; Piller & Bodis, 2023). Such discourses are also evident in public political debates about migration and registered migration agents (Smith-Khan 2021b).

‘Australian’ native speakers and language choice

Perceptions about identity are also closely connected with these types of ideologies. As L2 English speakers discuss their experiences and efforts to develop speaking skills in class and connect these evaluations with their future language practices and career plans.

Gemma: If you have poor communication you give them the impression you’re not professional. You probably have lots of knowledge in your mind but you just can’t express yourself properly, or too slow, or I don’t know. You’ve got to give them, the client the impression that oh no, you are professional. I can trust you. You can do the job for me. So I try to, the reason why I said um, um, the native English speaker is better, probably that’s just one side about um, they easily use language um, uh, like more vocabulary than us. We can’t use like beautiful words or whatever it is to express myself uh, precisely. So uh, that will give client the impression like, you not professional like I can’t trust you…. So, yes. So that’s why I said if I speak to Chinese, probably I’ll be more confident. They, they will, will feel less, um, less suspicious. I don’t know. Um, less, how will I say? Um, more trust on you than English-speaking people. [Gemma, interview 1/1, 2020]

Evaluations like these compare L2 English speakers’ skills vis-à-vis what they consider the ideal student and future RMA, an L1 English speaker, with implications for professional identity and future work plans. They also link general professional competence with language proficiency and oral fluency, something that again also comes up in the broader discourse (see Smith-Khan 2021b).

However, these ideologies extend even further, to national identity and moral worth.

Gemma: Yes, with my, one of my classmates… Uh, at the beginning it wasn’t very good. Oh, he’s local. He’s Australian. And he’s very, I feel he pick up very quickly and easily and then he has to put up with me because I have to think. And, you know, thinking probably slower than, than him and then speak slowly. Uh, yes so I find the difference and I try to, I just want to try to improve that by talking more [Gemma, interview 1/1, 2020].

In this encounter, Gemma evaluates herself in relation to an “Australian”, “local” L1-speaking classmate. Here, speaking and thinking are closely connected, and she comes out positioned as a burden in the interaction – something her classmate must “put up with” because of her slower thinking and speaking.

While such discourse is not surprising in this particular social and political context, it sits uneasily against the facts we have about Gemma’s personal and professional background, along with the direct linguistic data collected in the project. She came to Australia as a skilled migrant and was granted a permanent visa because of her professional qualifications. She has been an Australian citizen for over a decade, working as a civil servant in a professional role, in a regional Australian city, in a highly monolingual English office environment. Her English language proficiency is indisputably high. Yet her evaluation demonstrates the power of native-speaker and monolingual mindset ideologies about languages: her capability, her professionalism, and even her nationality become inferior and vulnerable to the point that she imagines herself as at best a burden, and at worst incapable of being trusted, for an L1 English speaking audience in this context (see Piller et al 2024).

Hard work, pushback and pragmatism

However, all is not lost for this group of aspiring migration practitioners. Both L1 and L2 English speakers heavily stressed the need to practice speaking and to study hard to continue to improve their professional skills. While this emphasises individual responsibility and creates an additional burden for L2 speakers, it still allows for a degree of agency and a sense of opportunity: developing professional skills and identity are not regarded as impossible.

At the same time, students also demonstrated a critical awareness of the broader social and political contexts, and what these mean for how people are (sometimes unfairly) evaluated. For example, one student pointed to the broader political context of migration and perceptions of migrants to make sense of how RMAs are perceived: if the government is “very anti-immigration”, it follows that RMAs would be seen as “unnecessary” or a “pain to deal with”, and it would be made difficult for them to enter the profession.

Another student pushed back against the apparent need for people to speak standard Australian English. Nitin explained how whether someone comes across as rude can be a matter of the listener’s perception. He was thus able to turn the spotlight onto the interlocutor, who may misjudge L2 speakers who “don’t have those little, nice touches” in their speech, rather than the “deficient” speaker, and at the same time claim an advantage over L1 interlocutors, as more compassionate and knowledgeable in interactions involving speakers of diverse language varieties or proficiency. However, Nitin still ends on a pragmatic note, related to his own lived reality:

Nitin: People, when I talked to the native speakers here, sometimes they’d think I’m talking rude. My colleagues said that on a few occasions, and I started thinking, what was rude in that? … So I adapted it over a period of about nine years. Now I know what to speak and what not to speak. [Nitin, interview 1/2, 2020]

Therefore, while it is clear that students may come to internalize linguistic ideologies that frame their language practices and repertoires as inferior or in need of ongoing improvement, there is still space to reclaim and challenge these ideologies. However, even while doing so, they must still navigate the very real and enduring practical effects such ideologies have within their social and professional contexts.

Note

*Participant names are pseudonyms.

References

Mertz, E. (2007). The language of law school: Learning to “think like a lawyer”. Oxford University Press.

Piller, I. & Bodis, A. (2024). Marking and unmarking the (non)native speaker through English language proficiency requirements for university admission. Language in Society, 53(1), 1-23. https://doi.org/10.1017/S0047404522000689

Piller, I. & Gerber, L. (2021). Family language policy between the bilingual advantage and the monolingual mindset, International Journal of Bilingual Education and Bilingualism, (24)5, 622-635. https://doi.org/10.1080/13670050.2018.1503227

Piller, I. et al. (2024). Life in a New Language. Oxford University Press.

Smith-Khan, L. (2025, AOP). Language, culture and professional communication in migration law education, Language, Culture and Curriculum, https://doi.org/10.1080/07908318.2025.2481051

Smith-Khan, L. (2021). ‘Common language’ and proficiency tests: a critical examination of registration requirements for Australian registered migration agents. Griffith Law Review, 30(1), 97–121. https://doi.org/10.1080/10383441.2021.1900031

Smith-Khan, L. (2021b). Deficiencies and loopholes: Clashing discourses, problems and solutions in Australian migration advice regulation. Discourse & Society, 32(5), 598-621. https://doi.org/10.1177/09579265211013113

Smith-Khan, L., & Giles, C. (2025, AOP). Improving client communication skills in migration law and practice education. Alternative Law Journal. https://doi.org/10.1177/1037969X251314205

Screenshot of passenger being placed under suspicion on “Border Security”

Anyone who has ever travelled to or from Australia will agree that the last thing you want after getting off a long-haul flight is any further barriers between you and the outside world, a shower, and a bed.  However, given the ever-increasing securitization of borders across the global north, international travellers must first succeed in convincing border officials that they do not pose any type of threat to the nation.

This may be much easier for some people than others. In a recent study, we examined the various aspects of individuals’ language, identity and behaviour that are made salient by border officials in their work, when deciding whether particular people are suspicious or can be trusted. To explore this question, we collected and analysed 108 encounters between border officials and travellers arriving at Australian airports, filmed, produced and broadcast as part of the long-running, popular television series, Border Security: Australia’s Front Line.

In our new article, we show how in these encounters, border officials carry out evaluations of travellers’ credibility, much like those used in other migration processes, such as the assessment of asylum claims.  We find that different individuals are unequally positioned to construct a trustworthy identity based on the way they speak, their social capital, their (perceived or actual) nationality or ethnic origin, their knowledge, and material factors, like the clothes they wear, the money they have, or the other items in their possession.

Officer: (to camera) “This gentleman has arrived on an Italian passport. Speaking to him our officers realized that he’s not a native Italian speaker. The question is now what is his nationality.”

Screenshot of passenger being placed under suspicion on “Border Security”

These factors are made salient in ways that are unreliable and inconsistent, and we critically examine and denaturalize the problematic assumptions underlying them. For example, in the encounter above, Italian citizenship, a political/legal status, is imagined to involve specific social and linguistic experiences and practices, being born and raised in an Italian speaking context, to the exclusion of others, such as migration and naturalization.

In each case, we also compare how border officials are in a stronger position to mobilize the same categories of resources to construct identities for themselves that are trustworthy and credible.

This, we argue, is due largely to the privileged position they have on two different levels, both in terms of how they can control the discourse within their interactions with individual travellers, but also at the level of the television show, in how discourse about these interactions is produced and disseminated.

At the level of the encounters, officials obviously have a very specific role to play: they are the ones who decide who to stop, how to question them, what technologies to use, and, ultimately, how they interpret what they see and hear.

Officer: When we commenced our interview, I specifically stated to you that pursuant to Section 234 of the Migration Act, you’re required to provide me with truthful information. Can you demonstrate to me conclusively that you did work on that farm? I’ll give you this opportunity again, Declan, I’m a pretty fair sort of a guy.

Screenshot of passenger being placed under suspicion on “Border Security”

Not only this, but officers wield power over travellers in terms of the outcomes of these encounters: they may issue fines or warnings, cancel people’s visas and have them deported, or refer them for police investigation. This power undoubtedly influences the way travellers interact with them, and their perceived and actual levels of discursive agency.

However, the inequality does not end there: the television show itself produces discourse about traveller credibility, both in relation to the individuals who appear in the various encounters, but also in terms of the general messages that come from the combination of such interactions. At this level, we identify a range of discursive strategies, including giving the floor to officials to explain to camera the reasons for their suspicions and final decisions, and the use of an omniscient narrator who plays a similar role.

Such is the level of discursive inequality that, for instance, two friends returning to Australia after an overseas trip and going through passport control separately – as required for non-family groups – can become a “hidden” fact to be uncovered and construed as suspicious.

Narrator: Officers have just discovered what seems like a strange coincidence. A passenger at another bench has virtually IDENTICAL travel movements. […] Officers now suspect that these two passengers may in fact know each other.

Screenshot of passenger being placed under suspicion on “Border Security”

This adds another layer of credibility to officials’ border work: along with the show’s narrator, they have a chance to explicitly describe their reasoning processes and the accommodations they offer travellers, to perform procedural fairness for the viewing public.

At the same time, it also provides an additional opportunity to teach the viewing audience to suspect certain types of people and problematize certain attributes or behaviour. We learn, for instance, that people who hold an Italian passport should speak Italian natively, and that not doing so is cause for suspicion.

We learn that travellers from particular countries or ethnicities should be treated with a higher level of suspicion and that their behaviour or explanations require closer scrutiny. The two friends mentioned above weren’t just travelling together – they were travelling to countries in South-East Asia and are themselves of Asian ethnicity. These facts contributed to framing their trip together and their behaviour in the airport as suspicious, where these may otherwise appear completely innocuous.

This is apparent in the individual encounters themselves and how they are narrated, but this is also the case cumulatively, across the television show as a whole: non-white, non-Australian people and those who don’t speak English as a first language are overrepresented as travellers in the show, and can be contrasted with border officials who are predominately white, and “Australian-accented” English speakers (as we discuss in another article).

Screenshot of passenger being placed under suspicion on “Border Security”

Detection of wrongdoing is also overrepresented: in 61 percent of the encounters in our collection, there was a “guilty” outcome: people are detected, fined, have food or goods confiscated, or are arrested or deported. We can imagine that this is vastly disproportionate with the percentage of “wrongdoers” detected in reality. The combined effect of this is that viewers are taught that there is a high level of wrongdoing, meriting a high level of suspicion, and that this needs to be directed primarily at society’s linguistic and racial “others”.

These findings have implications beyond the television show itself: such discourses of suspicion have the potential to encourage viewers to take on personal responsibility for everyday bordering in their own social contexts. They also help to reinforce and garner trust in border policy, procedures and practices, even as it has moved towards criminalizing asylum seekers and other migrants and adopting a “culture of suspicion”.

References

Piller, I., Securing the border of English and Whiteness. Language on the Move, 8 November 2021, https://www.languageonthemove.com/securing-the-borders-of-english-and-whiteness/
Piller, I., Torsh, H., & Smith-Khan, L. Securing the borders of English and Whiteness. Ethnicities. 2023; 23:5, 706-725. https://doi.org/10.1177/14687968211052610
Smith-Khan, L., Five language myths about refugee credibility. Language on the Move, 6 May 2020, https://www.languageonthemove.com/five-language-myths-about-refugee-credibility/
Smith-Khan, L., Piller, I., Torsh, H. Trust at the border: identifying risk and assessing credibility on reality television. Journal of Law and Society. 2024; 51:4 513–538. https://doi.org/10.1111/jols.12505

Anthea’s new book is being launched at the University of New South Wales, Sydney, on the 20^th of November, with hybrid attendance options available. Event information and free registration are via this link: Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination Tickets, Wed 20/11/2024 at 5:30 pm | Eventbrite

If you enjoy the show, support us by subscribing to the Language on the Move Podcast on your podcast app of choice, leaving a 5-star review, and recommending the Language on the Move Podcast and our partner the New Books Network to your students, colleagues, and friends.

Transcript

Laura Smith-Khan: Welcome to the Language on the Move podcast, a channel on the New Books Network. My name is Dr. Laura Smith-Khan and I’m a senior lecturer in law at the University of New England, Australia.

My guest today is Dr. Anthea Vogl, who is an Associate Professor in the Faculty of Law at the University of Technology Sydney. Her research takes a critical interdisciplinary approach to the regulation of migrants and non-citizens, and she researches and teaches across refugee and migration law, administrative law and legal theory. She is currently co-leading an Australian Research Council Discovery Project grant on private refugee sponsorship in Australia and a national grant examining the health requirement imposed on non-citizens under Australian migration law.

Today we are going to talk about Anthea’s new book, Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination, which is published by Cambridge University Press as part of their series, entitled Cambridge Asylum and Migration Studies.

I’ve read the book, of course, and recently reviewed it for the International Journal of Refugee Law. And, as I say in that review, I particularly appreciated how the book explores the “multiple ways narrative performance is implicated in (both) the conduct and the evaluation of refugee hearings”, and I described the book as “the most substantial and persuasive account to date of the impossible narrative demands placed on people seeking asylum.”

So on that note, Anthea. Congratulations on the book, welcome to the show, and thanks so much for joining us today.

Anthea Vogl: Thanks, Laura. It’s a real pleasure to be here, and thanks for that lovely introduction.

Laura Smith-Khan: My pleasure! To start, I’d like you to introduce the book for us, and perhaps you can explain a little more what it’s about.

Anthea Vogl: So the book really is about what we call refugee status determination. And for listeners who don’t exist in a legal framing, that’s really how the law comes to understand whether or not someone is going to be granted refugee status and believed to be the refugee, as they claim to be according to a particular legal definition.

That is the focus of the book that that question of what we do around refugee status determination at its most general. But the book is fundamentally about what happens when we put refugee status determination into practice, and there has been a lot of work done on refugee status determination. And we can talk in a minute about how, why, it’s such a difficult process, but a lot of the work that has been done on refugee status determination hasn’t necessarily had access to or been able to examine what is called the oral hearing, as part of that process.

A fundamental step in the refugee status determination process is where an asylum seeker comes before a decision maker to explain his or her claim. It’s really difficult to access those hearings. It’s really difficult, because of another thing that the book tries to do, which is to set refugee status determination within the broader context of the regulation of the border, and in particular, the incredibly violent and sometimes lethal means states have used to prevent refugees not from just getting to the border, but getting to that place where States are obligated to assess someone’s right to refugee status within their particular country or territory.

In looking at refugee status determination and the oral hearing, what the book tried to do was access some of those spaces that have been so hard to get into and ask, what happens when an applicant comes before a person empowered by the state to assess and judge their story? And how do those oral exchanges ultimately inform and determine that final decision that sometimes we have access to from the public records of refugee status determination bodies. Sometimes we don’t have access to that decision. And what is the relationship between those two things at a really prosaic level? You know, I was really interested in what is happening in the hearings, and then, more legally, I was interested in the relationship between the evidence that comes out in those hearings and what is finally decided. And at a critical level, a long standing critical engagement with the very premise of refugee law and the idea of border regulation, and only letting certain people cross borders on certain terms.

I was interested in the ways in which state written narratives about refugees, and who is an authentic refugee, and who deserves our protection, influences the kind of stories that are told in those hearings.

Laura Smith-Khan: Yeah, thank you so much. There are so many layers to this. And I really admire how well that you bring all those different threads and those different layers together in the book.

And personally, I can attest to how difficult it can be to access this type of research data – incredibly difficult to get permission to sit in and observe these types of hearings or be able to record them or to access recordings of them. So congratulations even on that first crucial step, especially in Australian context.

And it’s also worth pointing out that in a number of countries the hearings aren’t even usually recorded as an official procedural step, so recordings may not ever exist for hearings as well, and that raises a lot of questions about the accountability of those processes, too.

Anthea Vogl: Yeah. And tracking those gaps, I think is something that is a real challenge for researchers and I think it relates back to the secrecy and control that states seek to maintain over refugee issues and refugee law and practice. And actually, it’s a lot of your work, Laura, that I think has really nicely pointed out that even though – and this is a big part of the book, too, and a really nice intersection between our work – even though it’s the refugee who’s ultimately attributed with the testimony that they bring before decision makers, and they’re considered to be the author or the speaker, and then they are judged on that basis, your work has shown really carefully how actually, there are so many different voices, and so many different people who contribute to that particular testimony. And I’m thinking of your work and Katrijn Maryns’ work, and Marie Jacob’s work too.

And yet the refugee’s held responsible for that testimony in the end, and we have no way of tracing some of those processes, and how that comes about for a range of reasons, but also because it’s so hard to access the data.

Laura Smith-Khan: Yeah. And I think that’s where your work really comes in to provide a really good evidence base of what is going on behind the scenes, and also how you can have, on the one hand, these ideas of giving refugees a voice, or that, they’re “telling their story”, and that’s put forward as maybe increasing the legitimacy and fairness of the process. But what your book does so well is actually pulls apart what is happening, what is expected, and actually demonstrates so clearly how the demands or the expectations of a certain type of narrative, are controlled by the decision maker, ultimately, both within the hearing, and then also afterwards by the fact that they are the ones that take what has happened in the hearing and reframe it in their decision on both those levels the narrative is never really under the control of the asylum seeker. And that’s just such a great contribution to demonstrate that across all these different examples across Canada and Australia.

But I think maybe we should step back and give a little bit more overview of what the process looks like for someone if they’re seeking protection as a refugee in a country in the global north.

Anthea Vogl: Yeah, great. There’s a lot we could say about the content of refugee law and how it operates. But I think it might be useful to focus on the procedure for the purposes of the podcast.

Very briefly, there’s a definition in international refugee law, and it’s often imported into states that have become signatories to the Refugee Convention. Refugees have to prove that they face a well founded fear of persecution on one of five grounds, race, religion, ethnicity, and political opinion and particular social group.

What’s interesting there is that sense that the refugee has to give an account of their own fear on the basis of a particular ground, and that fear has to be both judged to be true on a subjective level, in that the refugee has to themselves have that well-founded fear, but it has to be objectively true, so it has to accord with a legal and evidence-based assessment of whether or not that person has or would have experienced, something to give rise to a fear in their country of origin.

As listeners, as you start to think through who refugees are and how they come before a decision making body in a global north state, what will probably spring into your mind is that people don’t necessarily come with access to the kinds of things that the law takes to be convincing and compelling in terms of forms of evidence. So someone’s fleeing their home state, and they are seeking to prove that their home state has persecuted them or harmed them, or people in their home state have persecuted or harmed them. The chance of being able to access those records, or having indeed left with written or documentary evidence of that having happened, is really slim.

Even where people leave with the most basic forms of documentary evidence which would help their claim. So really simple things, like even identity documents, even those identity documents are not necessarily the kinds of evidence, or they’re not in a category of what we talk about as probative evidence. We can’t even see prove that those written documents are authentic and true. And so there’s already this massive barrier to making a claim.

And in many ways the refugee status determination process and how it works both seeks to respond to that challenge – I think if we read in good faith the setting up of the refugee status determination process, it talks about having to give applicants the benefit of the doubt, because they don’t have other forms of evidence to build their claim for the purpose of the book. Why, that’s really important is because where we’re left is with both written and oral testimony, as the absolute foundation of how most refugees will make a claim before a court.

Sometimes there are other witnesses or people that someone might be able to call. That happens rarely, and sometimes people have had access to really good records, to substantiate their claim interestingly with social media and the digitization of some forms of evidence that’s like added a whole other interesting element to evidence that might be available. But to really summarize what happens, both at the first and sometimes second level of decision making. So before things are reviewed by courts, an asylum seeker comes before a decision maker. He or she or they may or may not have access to legal assistance, and both Canada and Australia are good examples. Without generalizing too much, even in the hearings, those who have access to a lawyer and a lawyer present, it really is the applicant giving testimony to the decision maker and the decision maker questioning and interrogating that evidence for most of the hearing.

And then, very importantly, the other person in the hearing, in almost all cases, is the interpreter. Keeping in mind another core challenge of refugee status determination, which you are, of course, very familiar with Laura, and will probably be of central relevance to listeners is that that the whole process happens across the applicant’s own language and the language of the host country, which are very rarely the same language, but sometimes they are. In all of the hearings that were included in the book, in both Australia and Canada, there was an interpreter present. In one of the hearings one of the applicants was confident with English, and the interpreter dipped in and out, but otherwise the interpreter was also the third voice in the hearing.

Laura Smith-Khan: Yeah, so you’ve got this really strong reliance on both written oral testimony, and very specific requirements in terms of the written testimony in terms of application forms, filling out a lot of different types of information. And there’s some great scholarship around how those different forms of testimony can also then be used to find inconsistencies. And these types of things come up in credibility assessment, too.

Anthea Vogl: Yeah, and it’s probably worth saying that one of those taken for granted bits of knowledge within refugee status determination and refugee law is that the claim is assessed on the basis of the substance of the claim. So it is assessed in terms of what is being told, and whether the decision maker finds those things to be plausible and true are a key part of that, and whether or not they accord with the legal framework, and also does your claim fit into what the law has said in your country, of where you’re seeking asylum a refugee is, or how it defines refugee.

But a key part of all refugee status determination, precisely because often of this absence of other evidence, is the credibility of the applicant and their evidence. So the applicant themselves, and the credibility of the story that’s being told, or the evidence being given, and credibility assessment in most countries turns on three main criteria: the idea of consistency and coherence that you just referred to and that’s consistency and coherence across multiple tellings. So you have to make sure that you are telling the same story again and again and again, which again, listeners can think about how difficult that is even just in the ordinary course of their own lives, not in an adjudicative setting.

The second criterion is plausibility, so is the story being told plausible. And then a third criterion that comes up is demeanour which has been really roundly criticized in a lot of jurisdictions, and I don’t necessarily address too much in the book, because I wanted to reinforce the ways in which, of all the criteria that have all been criticized, it’s the one, I think, with even less credibility than the other criteria.

But that credibility assessment is a key part of the claim, and it’s almost like a compulsory part of a lot of work on refugee status determination, that as scholars, we all know that decision making turns on the credibility of the applicant, much more so than it does on the legal and factual elements of the claim.

Laura Smith-Khan: Yeah, absolutely. Yeah. I think the demeanour one is quite interesting in the sense that. There is a stronger consensus that it’s not something that should be relied on. But then, maybe it still is, and it’s not explicitly mentioned, or in my own research, I found at least that it’s mentioned when it’s relied on positively. So for, you know, “there are some inconsistencies here, but this person in general seems, you know, authentic” and blah blah, So it can be used in somebody’s favour, and then maybe not mentioned when it goes against them, something along those lines.

But yes, absolutely, the different types of what have been called indicators of credibility. And it really is such a foundational and crucial part of the refugee status determination process

And it’s so important in how your analysis, looking at these different narrative demands, really brings out how credibility or incredibility can be produced through unrealistic expectations of this particular type of narrative, and also the way that the decision maker controls the hearing in such a way that it makes it really difficult for the person seeking asylum to actually perform as they’re required to perform. So I’m really looking forward into drilling down a little bit more into that process.

I’d really like to just briefly talk again about your data that you have. So we’ve already mentioned that you had access to hearings. But could you just explain to us exactly what type of data you collected, where, when and the challenges, you might have faced with that.

Anthea Vogl: Yeah, for sure. Essentially, the method at the core of the book was, what is maybe a bit counterintuitively called participant observation of hearings which, some listeners might be familiar with, but I mean, to just to encapsulate it, it was sitting in refugee hearings as they took place, without actively participating in them, beyond making my presence known and seeking permission to be in those spaces.

Interestingly, and relevant to our discussion earlier. All of my access to those spaces came by the refugee applicants themselves. And there was more hostility from the Australian refugee decision making space than the Canadian refugee decision making space in relation to my presence, even though under the relevant statute in Australia, the refugee applicant has the right to allow people into their own hearing, the tribunal, some way into the research, overrode that.

They also have the right to control who is and isn’t in the hearing. It’s a little bit legally grey. But it wasn’t a point I was going to pursue, obviously, in the really delicate and stressful context of someone having their claim assessed, when the Department said, “No, thank you. We don’t want you in the hearing anymore.”

That’s when I started to work with some audio transcripts and recordings of particular hearings in the Australian context. In the Canadian context, both through refugee applicants and through the UNHCR, I attended the hearings.

It’s important to note, I think, for the book, it’s work that came out of my doctoral project, and the hearings really have not, even though the last hearing that I attended was 2015, which doesn’t make it current data. And it’s not current work of mine, but it’s something I really wanted to come back to in terms of publishing and thinking about it. The one thing in thinking that through and thinking about. What does it mean that these hearings don’t continue on into the present day?

I tracked the history of the oral hearing itself. And what has happened to the oral hearing in both jurisdictions. And I guess one of the things that I came to in doing that was that there’s been a lot of reform around refugee status determination processing. And I argued primarily to make it faster and more efficient in ways that disadvantage the applicant.

But really what hasn’t changed. So those changes have happened around the oral hearing and the oral hearing has remained. This central fulcrum on which the whole process turns, and I would say, unfortunately, there’s even more pressure on the applicant getting their claim right in the oral hearing, because timelines have been shorter in the lead up to it, and appeal and review rights have gotten even more attenuated and limited.

So what that ended up as was 15 hearings across both jurisdictions along with the case files for the applicants. And, importantly, the decisions. Coming back to that earlier point, that really interesting question of what was said in the hearing? How did stories and language come up, and how are they assessed and tested? And then what did the decision makers say about what happened in the hearing? There were some really interesting gaps to follow through and comparisons to make.

So it was the hearings themselves, being in the hearings and observing them. And then the case files. And I really used that material to conduct pretty deeply qualitative assessment of what was going on in the hearings. And again, you know, you’re always thinking through methods and trying to be critical about your approach.

At the start, I was hoping to maybe look at one particular ground, or one particular kind of claim or claimant. But really some of those challenges of accessing the hearing influenced this final decision to look across claims and across claimants and across countries of origin.

And the other thing was, I guess what I was looking at was this sense of what was going on in the oral exchange, and the structure and procedure of the hearing so that helped make those things more comparable.

But I would like to really acknowledge work that I think has been really critical looking at particular kinds of claimants. So, LGBTIQ claimants, people making claims on the basis of gendered persecution, particularly women, particular political opinions coming out of particular countries of origin. I think that work’s been really important. I look at some stock stories and assumptions in the hearing and the way narrative works more generally, and they really drill down into the ways in which global north states require particularly racialised people to tell particular stories about themselves when they are, for example, a woman facing harm, or a queer person who hasn’t been able to live safely on the basis of sexuality.

Laura Smith-Khan: Yeah, I think I think that’s what’s so great about this quite broad and quite large collection of scholarship, as you say, is that everyone has had different kinds of access to different types of data and different conceptual frameworks as well and different methodologies, but actually so much of it complements each other so well. So we have that ability to draw on that scholarship, and then see how it applies to our particular context, our particular data in such really valuable ways.

And such a great reflection as well, on how, in the one sense, you could potentially-  See, your data is amazing, and I’m very jealous of it. But in terms of the small number of hearings that you got to observe. On the one hand, you could see it as like a gap or a lost opportunity to, as you say, drill down and look at a specific type of claim across a really large number of cases. But, on the other hand, it creates this really fantastic opportunity to look at that bigger picture across those particular hearings, and see what they have in common, or the patterns that you can see emerging from it.

And you’ve also done such fantastic conceptual thinking. And I really think, yeah, as you say, you acknowledge that this has come from your PhD research, which was a number of years ago. But I’m very grateful that you went ahead and did the book, because I think it’s a great contribution. But I also assume, based on my own experience of how my understanding of my research has changed over time, I assume that maybe your development of the concepts or the theories that you’d like to apply to this data has changed over time. Because I think that’s also a really important contribution in the book. The way that you bring in a number of different areas, a number of different theoretical frameworks, and use them to analyze your data.

Anthea Vogl: Yeah, that’s such a nice way of thinking about it. And it makes me reflect on the ways in which sometimes, yeah, your analysis can be latent, or you start with an idea, and the more you come back to your work. I think for me that sense of reading the hearing contextually and refusing to just individualise what was going on in the hearing, both in relation to the decision makers actually, and the applicants.

So not understanding that the decision makers have a lot of responsibility for how the hearing works, and your work has looked at this, too, Laura, the really limited ways in which credibility is actually governed, or how we define the credibility criteria themselves, how we understand them, and then how they are implemented and the responsibility the decision maker has leaves for some pretty big, capacious, billowy spaces of legal regulation.

But having said that, yes, coming back to the book, that sense of some of the structural forces at play, both in terms of narrative and language and in terms of the politicization of the hearings that has really continued in a pretty relentless way was important.

But yeah, I guess, as you say, in thinking about, you know the data that you have, and coming back to it, I’m wondering, you know, of its relevance. Some of the law and language work in this space, I guess it’s simpatico in particular ways, because you look at one hearing, and you can look at a paragraph within a hearing and really break down what is happening between, say, an interpreter and an applicant and a decision maker, and there’s so much going on at the level of understanding that even if the hearings were perfectly structured and the fairest possible versions of themselves, there would still be these incredible linguistic, cultural, and adjudicative or contextual barriers to understanding and communicating in that space.

Laura Smith-Khan: Yeah, absolutely. There are so many opportunities to look at the data on so many different levels and make sense of it in so many different ways. And, as you said, also contextualizing the hearings within their political and historical context as well. And I really enjoyed that chapter as well where you gave this overview of that exact thing across both Australia and Canada, and mapped some of the parallels, and also noted some of the differences. And also this really ironic or interesting tension, or seemingly contradictory pattern that emerges between, on the one hand, really, you bigoted, discriminatory, hateful political discussion about people seeking asylum on the one hand, and needing to control and stop their entry and deter them and punish them. And, on the other hand, at the same time, this development of what seems to be oh, we need to make the processes more fair, and you know, set them out in a bit more detail and have really good procedures. And there’s that weird tension, because those things are happening similar like simultaneously, it’s really quite interesting. So then you’re left with these processes that look very rigorous, trying to make sure that everyone’s accommodated, and we can communicate across language, barriers and all these things. But, on the other hand, it’s all happening against this really horrible kind of political discourse in the broader public space.

Anthea Vogl: Yeah, and trying, yes you say, there’s a real tension, and I think you know the book very much I guess aims to be a critical theoretical take on what’s going on in the hearings and what’s demanded of refugee applicants as testimony givers. But you know, as an advocate, and someone really committed to refugee justice on the ground I wanted to make really clear that we can’t lose sight of in the context is as it is a commitment to as fair a process as possible. Even if I’m you know, pretty directly critical of procedural fairness or improving credibility standards in this context as fixing the process. I don’t think it will, but the hearing itself and access to legal assistance and access to interpreters, you know, these are really fundamentally important things.

And when people had no ability to put their claims. So, looking at that history, you know, it comes from a complete, almost completely discretionary determination of people’s claims into what was a reform around individual rights to fair hearings both in Australia and Canada, and the right to be heard as a form of administrative justice and natural justice.

You know, I think, given the context, those things are really very important. But then, you see the way in which that individualizing feeds back into this broader narrative of authentic and inauthentic refugees, reinforces, and indeed generates and creates stories of genuine and credible asylum seekers as against bogus and unbelievable and incredible asylum seekers. And the person who bears the responsibility for that, you know, is sometimes, is the asylum seeker at the center of this assessment process regardless sometimes. Not always. You know there are some. There are concessions made, and I think, importantly, really important, research. Looking at the challenges, particular kinds of applicants facing, speaking their claims and narrating their claims.

But you know, generally, it’s the applicant that bears the responsibility of navigating that system and putting forward a claim that it is deemed to be credible. I think it’s important as scholars and thinkers that we don’t become inured or numb, or we stop forgetting how shocking that is. You know that, regardless of what an applicant has been through, or what testimony that they’re giving, their testimony must meet these particular standards of evidence giving, which I guess the book tries to draw on this the amazing literature at the intersection of law and psychology, which has said these are just, entirely unreasonable expectations to have of people’s language, and what the human memory can and can’t do generally. Just, you know, regardless of what might have happened to one person as an individual, but particularly in the context of anyone who suffered major violence, harm and trauma. And what that does to language.

Laura Smith-Khan: Absolutely. And that, yeah, we then still expect these individual people to be able to perform in these very, very specific ways.

Okay. So I think I would like to ask you a little bit in more detail now, because I’ve been hinting at this. What exactly is demanded, what types of different narratives or expectations did you find.

Anthea Vogl: Yeah. One thing that I that motivated the project and led to, I guess a series of findings was a bit of curiosity around what we mean when we talk about narrative in law and narrative studies and law and literature. So these bodies of work were really helpful, and I think particularly law and storytelling, which has come out of critical race theory and really looked at, you know, who gets to tell stories before the law who gets to judge them, and which ones are credible. For the refugee hearings and the book, I think drilling down into the specific narrative demands made of refugees, and the construction of narrative really informed the findings of the book.

Because it’s one thing to say, yeah. People, we demand stories. We demand people tell stories. But what does that mean? And why is it a problem, I think, for refugee applicants?

There are a couple of things. One, very significantly was that idea of a really Western narrative form which is temporarily located, even if it might not be chronological, that it’s sequenced in a way that is explicable. And that there’s a sense of most narrative studies talking one way or another about causation or connection between events and an accounting of that causation. So you can’t say, you know, “I went to the shop today, and tomorrow I brush my teeth.” That doesn’t make a narrative, because you’re meant to, you know, account for why you’re telling these things in a particular way, in a particular order, and someone might say that was out of order, because you should brush your teeth first.

So that sense of refugees being able to account for the connection between events in their lives and account for them in a way that – and this is a narrative, that coming from Western and Anglo European narrative studies – where there’s a real sense of not only being able to explain causality between events that happened to you, but that they should all come together in a sense of what’s sometimes called moral closure, a moral lesson or meaning. So a story has to have a particular meaning, and that that has to make sense. So that comes back to that credibility standard of plausibility. So it’s only plausible if you can sequence it, account for connections between events, and then provide some form of moral meaning or moral closure.

And this is the work of Marita Eastmond and a range of other really great critical non legal scholars often talking about refugee status determination. That’s not how things happen to people, and seeing that play out in the hearings was really apparent, making things make sense in a particular way, accounting for connections between events.

And then the other really important part of narrative studies as it connects to the work that I did, and what I saw in the hearings, was an accounting, a demand for refugees to account for themselves, like to understand themselves, and be able to really clearly explain how and why they did things, and to do that in a way that denied ambivalence, denied confusion, denied the impact of the circumstances that they were in that might have led to arbitrary decision, making or decision making that I can’t account for.

And then really, I wanted to say shockingly, but it was more infuriating, listening to decision makers wanting refugees to also account for other actors in their story. So you can imagine.

Laura Smith-Khan: Oh, my God! Yes.

Anthea Vogl: Yeah, it’s so. You know, this is where you start to see how literature helps us understand why this is a problem.

Work has been done on this in a more legal framing. But the idea that the applicant would have to account for the decisions of their persecutors. So if a persecutor let them, if someone was let out of jail, even though they were then you know they were then free of their captors. But then, say, re-imprisoned. If that didn’t make sense to the decision maker, the refugee had to account for why a state jailer might let someone free from arbitrary detention.

And again, the need to do that with clarity and certainty in order to reassure a decision maker in a sense of what might or might not be consistent or plausible, was really disturbing. And then I connected that to a narrative voice, or a particular version of the coming of age novel, or what gets called the Bildungsroman in German, because that’s where it’s said to come from. Which is the formation novel, which is like an all-knowing narrator. So if you did just.

Laura Smith-Khan: Omniscient.

Anthea Vogl: Yeah, exactly. So. It’s like the refugee applicant, in the hearings I observed, didn’t just have to tell a story that ended in this moral closure of becoming a refugee and a resolution to seek confidently seek refugee status. But along the way had to account for sometimes really minute aspects of the story that they themselves were part of, or that they were subject to as a narrator, in order to make the claim credible to a decision maker.

So to summarize that, I think, looking at the elements of narrative a little bit more theoretically, or looking at narrative structure, and then asking how they informed, or how they came up in the hearings, was a useful way to come back to a broader politics of storytelling and how it was operating in the hearing.

And I really appreciated, when you said earlier, you know, we assume that this right to tell one’s story is something that is a positive development and that, you know, being able to – and yes, storytelling itself has been cast as a really important part of, I think, campaigns for political justice, and I think that is true.

But there’s also a disciplining function of telling particular stories and people are disciplined into being certain kinds of subjects before the law, and it’s really clear the kinds of subjects refugees have to be in order to fit within the storytelling frame that decision makers accepted as true.

Laura Smith-Khan: Yeah, I when I was reading those parts of the book, I was – you know, waving my hands around and screaming almost. And I really appreciated like, because they resonated a lot with me, things that I’ve observed myself in work contexts.

But the theoretical frameworks that you had to work with from narrative studies and law and literature really helped name or you know, account for what’s happening there and why it’s so problematic. And it’s this, expectation, as you said, that we have somebody who not only has to account for themselves and explain why every single choice that they’ve made along the way is completely rational and well informed, and not emotional, or needs to be more emotional, or, you know, whatever the expectations are, but also that they have to account for every single other person who’s part of “their story” along the way, including sometimes even they’re persecutors.

Of course they can’t get inside the head of other people, and people do irrational things all the time. Or you know, there are motivations that we don’t understand informing why they make the choices that they do.

Anthea Vogl: Yeah.

Laura Smith-Khan: Yeah, just so problematic too.

Anthea Vogl: Yeah. And I think you know, what was really apparent was when that wasn’t. It happened in so many of the hearings that there were a couple of hearings that I point to where it’s like. Oh, no! There was a space for the applicant to express what happened without having to take responsibility for imbuing that with plausibility, sense, rationality, as you say, and like moral meaning.

And that burden of having to do that was was so conspicuous in its absence. Because you started to say, Oh, this is this could look significantly different. I think it wouldn’t solve all the problems or the fact that we still don’t have great indicia. We don’t have great ways to tell, to determine with any degree of certainty what truth is in these contexts.

But yeah, as you say, when it was there, it was just such a barrier to being able to just provide the evidence that was required of the applicants as they were coming before decision makers.

Laura Smith-Khan: Yeah, and something that a lot of the literature talks about especially in the Australian context, and perhaps also in the Canadian context, the idea that theoretically this is supposed to be an inquisitorial process where the decision maker is responsible for, you know, searching around for evidence and helping to produce the evidence. But in reality, at least in these particular contexts, it does seem quite adversarial. Right? That’s maybe a reflection of our particular legal systems.

Anthea Vogl: Yeah. And I think again, yeah, narrative theory was helpful in thinking through the different reasons we tell stories and the different settings that we tell them in, and how that will inflect the story that’s being told, what can be said, what can’t be said, how we might imagine an audience receives our testimony or testimony more generally.

And I think one of the things that became apparent in thinking through this idea of a narrative occasion is that it’s not easy to tell one’s story to begin with. But if there is a context in which a decision maker is also impeding your ability to meet these narrative standards. Then I guess that’s when for me the argument about credibility and decision making spaces as gatekeeping comes together because one of the findings and I think this has come through in other people’s work because it’s clear in decisions.

So a lot of work in the credibility space has also looked at the written reasons and written decisions. But people that I observed, the hearings that I observed, applicants were asked to tell the story and to meet some of these standards that we’ve just spoken about. And then the hearing itself did all of these things to just make that actually impossible. So even if the applicant could meet those demands the behaviour of a decision maker, the norms-

And so again, not necessarily bringing this home to individual decision makers because I didn’t- it wasn’t an ethnography of decision making. I didn’t have a quantitative number of, it wasn’t a quantitative study of how decision makers behave.

But the norms, as you say, around how the hearing is conducted was not to open up a space where someone could present narrative on their own terms, and then be judged on the on the terms of the decision maker and hearing it was instead, I guess what I observed was fragmentation decision makers interjecting themselves into applicant’s stories and actually asking exactly the kinds of questions that even the very limited guidance, legal guidance, or usually policy guidance, on credibility that exists, asking those kinds of questions. So the guidance that we have generally says it’s not uncommon for people to forget dates. It’s not uncommon for memory to be interrupted by traumatic events. And so that’s all there.

And yet, you know, decision makers really pushing for “did this”, not just “did this happen before or after this other thing?” But you know, “when did this happen? What year was it? You earlier said it was early in the year. Now you’re saying it was October. Why are you doing that?” So really interrogating and looking for moments where the credibility criteria wasn’t being met against the credibility guidance, such as it is, that exists.

So yeah, that that sense of the inquisitorial hearing was absolutely, apart from, I would say two of the hearings that I observed, just really absent from the hearings that were part of the study.

Laura Smith-Khan: Yeah. So even where there are guidelines with very specific advice, the fact that they just seem to be routinely overlooked or ignored is yeah, very, quite concerning yeah. And you’ve touched on another really important chapter in your book in terms of the conduct of the hearing and the fact that we have this idea of applicants having the space, and the floor, I guess, in communication to be able to just say things, tell their story. But what that actually looks like in terms of the hearing structure can be very different.

And I think you talked about the difference between Canada and Australia as well in terms of the order of the hearing.

Anthea Vogl: Yeah, I mean, it’s interesting. There was a similar kind of unpredictability around how the hearings went. So I guess that was another finding. And I must say, I attended hearings first in the context of, before coming to research, in the context of refugee advocacy.

And I really did, I think it’s not naive to think that if you have a hearing where a refugee believes that his or her or their story is being assessed that they will be able to tell their story. I mean, I look back on it, and I think it’s naive. It feels a bit naive, but, as you say, it’s like, well, here’s the space. It’s an open space, tell your story. It’s not how it works.

Sometimes the Canadian hearings, even though they were, they sometimes they made much clearer that they were just going to interrogate aspects that the decision maker found implausible, or the aspects of the decision maker was concerned to get more information about. And that was done more predictably. So, even though it wasn’t this open space for storytelling on one level, that benefited applicants because they were told what was coming at them

In the Australian hearings, a little bit about how the hearing is introduced, or how the decision maker sets up the hearing, when the applicant walks in and begins the hearing and it was, it was still- You know, an applicant would still be forgiven for thinking they’re about to be able to tell their story, and to do that in something of a chronological way. What we sometimes would call just for shorthand, and maybe even non lawyers know this, the idea of evidence in chief. So you get to tell your story before someone tests it. That really didn’t happen in any of the hearings that I observed.

And so the that sense of being able to create coherence and create plausibility was denied to the applicant, even though you know a lot of work on law and language and credibility in the hearings and Law and Psych has pointed out, it’s, you know there are barriers to doing that, in any event.

Laura Smith-Khan: Yeah, I think it’s probably worth just as a slight aside to explain to listeners who aren’t familiar with the setting that in the Australian context that the hearings that you were observing were a second hearing. So there’d already been an application process, and there’d already been an interview with the Immigration Department, and that hadn’t gone well, and the particular person had been, you know, rejected. They had their claims rejected. And then, after that, the second stage hearing was with a review body that looks at the whole claim afresh. So they aren’t supposed to just look at the first decision, and see whether that was done correctly, but actually look afresh at any fresh claims, or you know what’s happened since then, and the whole claim. So on the one hand, there could potentially be the expectation that they’re just reviewing the existing record. But ideally they would give the applicants a complete fresh chance to share their story, as it were.

Anthea Vogl: Yeah, yeah, that’s always. I teach a refugee law clinic. And it’s always so difficult to explain to students that this process is meant to be fresh review of the original decision, so just a rehearing of the decision as it was first made. And of course that’s not what happens in the hearings, and as advocates you’re always you’re already, and the book talks a little bit about and there’s been great work done by Jesse Hambly and Nick Gill and others about the role of lawyers, and also a lot of the law and language schools, too. Great recent piece by Katrijn Maryns and Marie Jacobs about the role of lawyers and their politics.

But I think, what really comes through when you’re looking at the way in which the hearings operate, and what the applicant can and can’t say is that there’s no version where there’s an ability to clearly articulate your story on your own terms. And so you then, you’re just fed back into this process where the decision maker is picking up on things that he or she has already observed as a problem with your narrative.

Laura Smith-Khan: Yep. Starting from that point of problem or distrust.

Anthea Vogl: Yeah.

Laura Smith-Khan: To somehow work from that back footed position, which is, yeah, a whole different challenge.

Yes. Wow. So yeah, I think it was valuable to read about your reflections in terms of you know. What does all this mean for our ability to make an impact? And you know, what is it? Does this lead us to any kind of suggested reform? Or you know, what does this all mean, especially when we’re looking at that broader question of structural unfairness, that really comes out so clearly in the book.

Do you have any hope?

Anthea Vogl: I mean, look. One thing, that without being a prescription of reforms to fix the process which the book just, you know, is really open about that. That’s not. That would be that would come out of, or that some of these observations would hope to inform that maybe accepting that some of the broader political challenges, or that the reforms have to take place in light of attention to the idea that there’s some, if we have in Australia, and you know Canada does its own share of this increasingly with the US-Canada border.

If we have a regime that’s willing to exert such brutal violence on people seeking to cross the borders and make an asylum claim, what does it mean, then, to demand, or how do we understand that alongside, is a real question. I think a very sincere and genuine quest of many scholars, advocates, lawyers, decision makers to make this process fair and equitable.

I think that they’re the two really hard things to hold within the frame together. I mean that, having been said, I do think the interdisciplinary work that has been done on the problems with the process. And I am not just saying this because we’re conducting a law and language podcast you know the work that has been done by law and language, and like law and, the intersection of law and language attending to what goes on in the hearing, and how decisions are made.

The other interdisciplinary, that big body of interdisciplinary work, looking at the intersection between law and psychology, and trying to really understand how these incredibly unfair and incorrect, you know, just blatantly incorrect inferences are drawn in the hearings, gives me hope.

Because I don’t think, you know –  I think there is a gap between the politics and also the will of decision makers and decision making bodies to make good decisions. That having been said, you know, I think that site of interdisciplinary knowledge is crucial for understanding legal processes here. I don’t think we get very far with a legal analysis of refugee decision making.

So in that kind of sense of grounding reforms, I think it’s really important. And the other thing that I do think, and I try and talk about this at the end of the book, if we are stuck with this process, if we, and I know a lot of things are on the horizon, including AI and Automated decision making, which will require us as researchers and advocates interested in justice for good decision making and refugee justice, we’ll have to engage with those things.

But I think if the hearing is in its current form, working hard to preserve the quality of the procedure and people’s access to good legal advice and proper interpreters and proper timelines before and after the hearing is part of the struggle in the interim.

I think there’s really good work. I do think the critical work which has just really come at credibility as lacking. I mean your own work. But really, the critical cultural studies work about the problems with all of these stereotypes that exist within credibility assessment.

Even at the level of international NGOs, maybe not yet government, there is a real consensus that credibility is dysfunctional, like the credibility assessment process is not working, and I do hope that they will work on that, that there will be an ability to really think of something. I don’t think that will solve the problems, but it affords a little bit more justice in these testimonial spaces and spaces of decision making.

Laura Smith-Khan: Yeah, for sure. While ever we’re working within the existing system, it is really heartening to see, I think, at least at an individual level, lawyers and also decision makers being quite receptive to that type of interdisciplinary research.

Anthea Vogl: Interest.

Laura Smith-Khan: And I guess we just all have, you know, a kind of quite hefty duty and responsibility to communicate it to them in ways they are going to take it on and use it productively within the problematic context in which we we’re all doing our work.

Anthea Vogl: Yeah, I mean, yeah. So true. I mean, sometimes I catch myself. I’m not pessimistic. But I’m kind of you know, I think it’s important to always think politically and contextually. And you know, I was like, I just don’t think, you know, coming to a pretty negative conclusion. But like, yeah, towards the end of the book.

Anthea Vogl: Gregor Noll recently also wrote something, so a scholar of credibility and refugee assessment for a long time, reflecting on whether or not we can make RSD work in the context of the current credibility standards, and I think the work of Jane Herlihy, who has also engaged with this.

And you know that there’s just a really clear no, you know, there’s not a reformist agenda. I don’t think that works around the credibility assessment, the current credibility criteria, as they’re currently expressed. And then what that looks like in these hearings. So even though I don’t mean to be, I was like, “am I being too pessimistic?” You know “is it too much of a harsh conclusion?” But I think that kind of consensus, and then the receptiveness of at least trying to think of other ways, to approach testimony is hugely important. Unless we really take seriously the problem of individualized status determination which I don’t think states will be doing away with anytime soon.

Laura Smith-Khan: Yes, absolutely. I think I personally felt that you did a really good job of very explicitly, you know, drawing a line, really making it clear that you know it’s not just enough to walk away from reading this book and say, “Oh, well, you know, we can just tweak this little bit, or just avoid doing that particular thing, or requiring this, or don’t interrupt,” or you know these little things that we can check off the list, and then everything’s going to be fine, not enough. And we can’t accept that as good enough. And I think that’s a really powerful and important statement to walk away from with this book.

I thought it was really well expressed. And yeah, it is very easy to just fall into cynicism when you’re working in this space, but also to be able to say specifically, you know, these are the things that I’m identifying in this work. This is what other people are identifying. This is what we can say within this system, but to acknowledge that the system is fundamentally flawed within itself, and while ever it exists, as it is, there’s a limit to achieving the ultimate goal of, you know truly fair processes and affording everyone protection when they need it. Yeah, hopefully, that’s not too glum.

Anthea Vogl: No. And I think, yeah, I’m reminded of yeah, of Hilary Evans Cameron’s work, who’s worked in this space. And you know, she really reinforces that in the search for truth that our focus should be on – the state’s focuses on the danger of a false positive, you know, giving someone status when they “shouldn’t” have been given status because they didn’t have a real claim. And you know, like shifting the focus to actually, a false negative. You know? How do we actually attend to the ways in which decision making that should be the focus of our concerns, given what refugee law regulates and what’s at stake in these decisions.

Laura Smith-Khan: Absolutely. I find that argument, I’ve heard that one from her as well, so persuasive that it’s much more important to protect against or avoid false negatives, you know rejections that shouldn’t have been rejections rather occasionally, you know, “letting someone in” who, you know, doesn’t “deserve our protection”. And I’ve spoken with lawyers as well, who make a parallel between this particular setting and credibility and the criminal law. You know, we give people the benefit of the doubt. We assume someone is innocent until proven guilty rather than the other way around, and the stakes are just as high or arguably higher in this particular setting. So why not try something similar here? Yeah.

If we can address the larger socio-political context in which all of it…Yeah, to to be worked on today and in the future.

Anthea Vogl: That small problem. Yeah.

Laura Smith-Khan: Thanks so much for speaking with me today, Anthea, and congratulations once again on this really incredible contribution that you’ve made to this very important scholarship. I understand that you have a book launch which is coming up fairly soon. Could you share the details with us?

Anthea Vogl: Yeah, so the book came out earlier this year. But these things take more time than you anticipate. So on the 20th of November here. I’m currently, I should have said, I’m so sorry I should have said I’m here in Gadigal land, on Gadigal Land, in Sydney. We are having a book launch at the Centre for International Law and the Centre for Criminology, Law and Justice at UNSW. And the UNSW Kaldor Centre would have the details and the registration link. So I’m really looking forward to that. I’m grateful to those centres for launching the book, and it’ll be just an hour discussion at 5.30 in a few weeks from now.

Laura Smith-Khan: Yeah, it’s not too far away, I think hopefully, we will have this podcast up and published before then, so we can publicize it. And I’ll be able to include a link to the invitation.

Anthea Vogl: Amazing. That’d be great. And it is also a hybrid for people who are listening from places other than Sydney, it’s a hybrid event. So there’s an online attendance option.

Laura Smith-Khan: Fantastic. Thank you so much. Thanks again.

Anthea Vogl: Thank you. Thanks for such wonderful questions, Laura, and you are absolutely the best person for engaging with the book. So it’s been really a pleasure to speak to you about it.

Laura Smith-Khan: So wonderful to read it, and thanks for taking the time to discuss it with us, and thanks everyone for listening. If you enjoyed the show, please subscribe to our channel, leave a 5-star review on your podcast app of choice and recommend the Language on the Move podcast and our partner, the New Books Network to your students, colleagues, and friends. Till next time!

References

Berg, Laurie & Millbank, Jenni (2009). Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants. Journal of Refugee Studies, vol. 22, no. 2, pp. 195-223.

Eastmond, Marita (2007). Stories as Lived Experience: Narratives in Forced Migration Research. Journal of Refugee Studies, vol 20, no. 2, pp. 248-264.

Evans Cameron, Hilary (2018). Refugee Law’s Fact-Finding Crisis: Truth, Risk and the Wrong Mistake (Cambridge University Press).

Hambly, Jessica & Gill, Nick (2020). Law and Speed: Asylum Appeals and the Techniques and Consequences of Legal Quickening. Journal of Law and Society, vol. 47, no. 1, pp. 3-28.

Herlihy, Jane & Turner, Stuart W (2009). The Psychology of Seeking Protection. International Journal of Refugee Law, vol. 21, pp. 171-192.

Jacobs, Marie & Maryns, Katrijn (2022). Managing Narratives, Managing Identities: Language and Credibility in Legal Consultations with Asylum Seekers. Language in Society, vol 51, no. 3, pp. 375-402.

Noll, Gregor (2021). Credibility, Reliability, and Evidential Assessment, in C Costello, M Foster & J McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press), ch. 33.

Smith-Khan, Laura (2019). Why Refugee Visa Credibility Assessments Lack Credibility: A Critical Discourse Analysis. Griffith Law Review, vol 28, no. 4, pp 406-430.

Vogl, Anthea (2024). Judging Refugees: Narrative and Oral Testimony in Refugee Status Determination (Cambridge University Press)

A lack of legal literacy can affect migrants – and indeed anyone – across all aspects of social life. This can include everything from signing a contract with an electricity provider, through earning a living, to having a safe and dignified marriage.

Legal professionals suggest that recent migrants may be special targets of a range of scams and exploitation because they are more likely to lack legal literacy, may lack information about available assistance, or may not be capable of accessing those services even when they do know about them.

However, this is not due simply to a lack of inclination to learn about the law. Rather, the development of legal literacy is dependent on the accessibility of information and education. For those with limited or no English, this naturally requires the provision of resources in other languages and accessible formats, in locations where their target audiences can find them.

While the various government and non-government bodies tasked with providing information about the law have already taken a range of measures to make their resources more accessible to non-English speakers and readers, barriers persist. These barriers can even influence the form of exploitation people face. For example, a lawyer I interviewed in my most recent project shared the story of a man who had migrated to Australia in the late 1990s and became trapped in a highly exploitative work arrangement:

you see the signs from the very beginning. Like, he didn’t have an accountant, he’ll use [his employer’s] accountant. And that accountant played around with his papers. They put him in a house on top of the shop. They denied him English lessons. So, till this day, I speak to him in Arabic, even though my Arabic’s not perfect.

In this scenario, it was only when the man’s workplace injuries became so severe that he insisted on seeing a doctor that he was eventually able to learn about his rights and access legal assistance. Among other measures, his exploiters intentionally limited his English language acquisition opportunities as a form of abusive control, to prevent him learning of his rights and seeking help.

This only reinforces the importance of providing resources in a range of languages, and clearly demonstrates the inappropriateness of claims that individual migrants are responsible for learning English as a prerequisite to accessing full inclusion in society and protection of the law.

Unfortunately, his case is far from being an exception. News reports uncover myriad examples, from international students underpaid with justifications that their limited English meant they weren’t good enough for minimum wage, to asylum seekers threatened with deportation if they didn’t comply with forced labour arrangements.

The complex and interconnected barriers recent migrants, especially those with temporary visas, often face means holistic responses are needed for them to access their rights. However ultimately, seeking justice still hinges on them first having knowledge about what those rights are and the processes and resources available to have them enforced. This is not possible unless relevant information is available in a language and format accessible to them.

The landing page

While service providers and regulatory bodies appear aware of this issue and have taken steps to address it, less is known about how accessible the resources and mechanisms are in practice (Victoria Law Foundation 2016). Further, beyond these formal offerings, less still is known about how migrants with limited English actually learn about Australian law and how it applies in their lives.

The Legal Aid bodies in each Australian state are tasked with providing a range of legal services. This includes providing free legal assistance and advice to some individuals, based on need. However another of their statutory functions is what is commonly called Community Legal Education and Information (CLEI) (e.g. Legal Aid Commission Act 1979 (NSW), section 10(2)(j),(k),(m)). This means that they are required to develop and disseminate informational resources and training to help increase the community’s legal literacy.

This is considered a crucial component to ensuring the whole community, and particularly recent migrants and those with limited or no English, can access justice, but we do not yet have a comprehensive picture of what is currently on offer, nor how well it works for these particular groups. Therefore, the peak body of the Australian legal profession has called for research to address the gaps in evidence to ensure migrants’ linguistic and other forms of diversity are understood and incorporated into efforts to improve community legal literacy (Law Council of Australia 2018).

The internet is a popular starting point for individuals looking for all types of information and existing studies on multilingual communications on the websites for government schools and multiple government service providers suggest that much work remains done to ensure that multilingual government communications are both complete and accessible for their target audiences. Therefore, in May, to start exploring the legal literacy resources available for non-English speakers, I undertook a pilot audit of Legal Aid NSW’s website.

The website

Information about Apprehended Violence Orders in Spanish

Legal Aid NSW offers a range of CLEI, with varying accessibility for non-English speakers and readers. As someone with English literacy, the landing page immediately presents me with a promising ‘My problem is about’ section. This part of the website helpfully guides readers step-by-step, in accessible plain language and appealing format, across a wide range of legal issues, e.g. ‘My job’, ‘Disasters’, ‘My rights as’ and ‘Visas and immigration’. Another section provides lay definitions of legal terms. These reflect an evident broader commitment to enhancing the accessibility of the site as a whole. However, these two sections are only available in English. Similarly, face-to-face and online legal education courses are advertised, but all current offerings appear to be in English only.

Another section provides a large collection of resources, like posters and pamphlets, organized across various topics, providing information about legal issues and available services. Some are provided in languages other than English (LOTEs). However, again, non-English speakers have significantly less access. Of the total 233 resources identified, only 40 are available in more than one language. Even then, most only include a few common LOTEs, e.g. Arabic (37), Chinese (36), Vietnamese (29), Dari/Farsi (16). Further, LOTEs are included inconsistently, e.g. Women’s Domestic Violence Court Advocacy information is offered in 13 languages, including several not used in any other resource. In contrast, all resources in the Disasters, Covid-19, Prisoners, and Young People topics are in English only. All resources are written texts (some with images), meaning only those with literacy can access them, a barrier for some refugees, for example, even in their first language (see e.g. Ba Akhlagh & Mehana 2024). Finally, when LOTE versions exist, it appears they cannot be located without English language literacy: the search function seems to operate only with English key words, and the resources are sorted and labelled in English.

One section of the website is more broadly navigable in many LOTEs. The ‘Ways to get help’ section provides information on how to access legal assistance and is available in 31 languages.  However again, there are inconsistencies between languages, e.g. the Spanish version largely replicates the original, with a full overview and four subsections covering contacts, legal advice, help at court, and applying for legal aid. In contrast, others, like Italian and Pashto, have no overview and only two subsections. Others have only an overview and no subsections. Some links lead readers back to English-only content, and website navigation menus remain in English even when on LOTE pages.

Where to from here?

Existing reviews and scholarship emphasise intersectional considerations when examining and addressing barriers to justice. For example, providing multilingual resources in written form only will not reach people who lack literacy or have low or no vision. Telephone information services and audio resources may be inaccessible for migrants who are deaf or hard of hearing (Smith-Khan 2022). Living in a regional area decreases access to language supports more readily available in urban centres, increasing the importance of LOTE resources. Similarly, not all LOTES are equal: speakers of ‘emerging’ community languages (e.g. recently arrived refugee communities) often have less language support, and issues with correctly identifying and categorising minority dialects and languages can lead to unsuitable translation and interpreting (Victorian Law Foundation 2016, pp 8-9; Tillman 2023).

Spanish word search

These considerations must inform the design and prioritization of resources in particular languages. For instance, while it seems logical to offer resources in commonly spoken LOTEs, speakers of these languages often have a higher level of English proficiency than speakers of emerging languages, who may often also face additional vulnerabilities (Grey & Severin 2021, 2022).

This brief pilot has obviously only uncovered what is publicly available via a website: qualitative research is needed to understand how service providers like Legal Aid NSW develop their resources and how legal, policy, and practical considerations influence their choices. At the same time, research could also provide insight into migrants’ decision-making. By better understanding how recent arrivals and people with limited English find out about the law, research could provide valuable evidence to policymakers and service providers to continue to make community legal literacy efforts more universally accessible.

References

Ba Akhlagh, S & Mehana, M. ‘Challenges and opportunities in designing culturally appropriate resources to support refugee families’ (2024) 8(1) Linking Research to the Practice of Education 2.
Grey, A & Severin A, ‘An audit of NSW legislation and policy on the government’s public communications in languages other than English’ (2021) 30(1) Griffith Law Review 122.
——— ‘Building towards best practice for governments’ public communication in LOTEs’ (2022)31(1) Griffith Law Review 25
Smith-Khan, L. ‘Inclusive processes for refugees with disabilities’ in Rioux et al(eds), Handbook of Disability (Springer Nature, 2022)
Tillman, M ‘Ezidi refugees in Armidale say gap in language […]service impacts health care (2023) ABC https://tinyurl.com/2vz3x8s9
Victoria Law Foundation, Legal information in languages other than English (2016) https://tinyurl.com/3nr5vndb

Dr Laura Smith-Khan during her keynote at InDialog (Image credit: Dries Cavents, UGhent)

Editor’s Note: Asylum seekers in countries of the Global North need to communicate a credible fear of persecution to assessors who speak a different language, come from a different cultural background, and operate in a different institutional context. To bridge these gaps between asylum seekers and assessors, the work of interpreters is essential, yet widely devalued and erased. Dr Laura Smith-Khan explored these vanishing acts in her keynote lecture at the recent InDialog 4 conference at Ghent University, Belgium. We are privileged to be able to share a version of her talk with our readers.

***

To grant protection to asylum seekers, officials in the global north require them to communicate a fear of persecution. Not only that, they also must believe them. The process of evaluating an asylum claim and an asylum-seeker’s credibility involves multiple forms of communication, and given the transnational nature of seeking asylum, this setting is one with a great deal of linguistic diversity.

Therefore, it should be obvious that interpreting is a common feature in asylum procedures and that interpreters play a crucial role in facilitating the communication of the various participants involved. Yet misconceptions about interpreting can affect participation in interpreter-mediated encounters and can also influence the way asylum communication is evaluated as part of the credibility assessment process.

Existing studies have found that interpreters’ work is sometimes devalued, and interpreters are even made invisible within institutional structures, discourses and practices. This is despite a large body of research about the many roles and impacts interpreters have within the encounters they mediate, both in asylum procedures and beyond.

Below I’ll share some of my own research, focusing on refugee credibility assessment in Australia. I will introduce some key “language ideologies” that operate in asylum procedures. I believe this is important, because “the study of interpreters, their experiences, and the ideologies of voice and language within which they work offers ways to interrogate the contradictions of global capital and its related humanitarian enterprises” (Kunreuther & Rao, 2023, p. 250). So I will explore how these ideologies have an impact on institutional understandings of interpreting, and through this, how they can undermine how asylum seekers’ communication and credibility are assessed.

Seeking asylum in Australia

To provide some context, here is a short overview of the process for seeking asylum in Australia (see Diagram). The procedures differ depending on whether people seeking asylum arrive by boat or with a visa.

First, for people arriving by boat, they have a basic entry interview. And then if the government allows them to, they will later make a protection visa application, along with other asylum seekers who were able to reach Australia by plane, with some other visa, for example as tourists or students.

The protection visa application is assessed by the Immigration Department, and involves completing a long set of complicated application forms and then later participating in a detailed and rigorous interview with the official who is tasked with evaluating the application.

If the application is unsuccessful, a merits review, where the facts of their case are reconsidered, is possible. There are two separate bodies for this: people who arrive by boat have their application reconsidered by the Immigration Assessment Authority, which usually reviews the existing records only, and does not call the applicant for further questions. In contrast, people who arrive with a visa can opt for a review which is carried out by the Administrative Appeals Tribunal and involves attending a further hearing.

If the applicant is successful at the merits review stage, they can seek judicial review. If they continue to be unsuccessful, they can make further appeals up through the Australian Federal court hierarchy. However, what can be considered in a judicial review is quite limited and it is difficult to successfully navigate this process without professional legal assistance, so only a small proportion of cases are appealed there, and even fewer are successful.

In this post, I’ll draw on a mix of data from Australia: published decisions from one of the merits review bodies, the Administrative Appeals Tribunal, a Federal Court decision, and interviews that I conducted with migration lawyers.

Language ideologies and the law

In Anglophone scholarship, the concept of “language ideology” began developing in the late 1970s. It is the idea that everyone has their own “common-sense” beliefs about what good language is and about how communication works or should work. Importantly, scholars emphasize how power structures are implicated in how particular language ideologies are mobilized and prioritized. For example, Ingrid Piller notes that language ideologies “serve to legitimize the social order and therefore they are always interested, multiple and contested” (Piller, 2015, p. 87). Diana Eades concurs, observing that they “can play an important role in the reproduction of inequality (Eades, 2012, p. 474).

This concept has proven useful for examining a variety of legal contexts, when it comes to understanding how testimony and evidence are gathered and assessed. Drawing on a range of existing research, Eades articulated some key language ideologies relevant to legal processes. In summary and for our purposes they are:

• Ideology of inconsistency: A “central strategy” to undermine witness credibility – this involves identifying inconsistency between different tellings of a story.
• Ideology of narrator authorship: The idea that the witness or interviewee produces testimony on their own.
• Ideology of decontextualized fragments: Accepting that it is okay to take single words or phrases out of their original context to examine and test them.
• Ideology of entexualization: Related to the previous ideology, this one involves taking decontextualized testimony, and recontextualizing it somewhere else. In legal and bureaucratic settings, this often involves transforming oral texts into written ones. This transformation is accepted as producing an accurate and official record of institutional encounters.

Here, I’d like to consider more closely these ideologies and explore how they affect understandings of interpreting and interpreters within migration procedures, and in turn, how this can affect policy, practices, and participation within these processes.

A central concern in asylum procedures is determining whether an asylum-seeker’s stories and claims are credible. Much like what Eades found in the criminal law context, one of the key ways refugee credibility is tested relies on the ideology of inconsistency: asylum-seekers are made to tell their story on multiple occasions in multiple ways to try to pick up inconsistencies between each telling.

The three remaining ideologies Eades identifies all help enable the testing of inconsistency. They also all rely on or help to produce a certain understanding of the role of interpreters and interpreting: that interpreting is neutral, and that it puts minority-language participants on an equal footing with other participants, and has no tangible impact on the production of testimony.

As we will see, this means and requires that interpreters and interpreting become almost invisible in the official documents of the asylum decision-making institutions.

Acknowledging the interpreter

I examined a collection of 27 published decisions from the Administrative Appeals Tribunal where credibility is discussed. These are the documents where the Tribunal decision-maker sets out the asylum claim, explains what happened in the hearing, where they ask the asylum seeker questions about their claim. During the hearing, they also raise any concerns that they have and give the asylum seeker the chance to respond. The written decision should include the details of this process and explain the official’s reasoning process for arriving at their decision.

Figure 1

In this corpus of decisions, I found that there is very little mention of interpreters: in four cases there is absolutely no mention of interpreting, nor does the official specify that the decision was conducted in English, so it remains completely unclear what language or languages were involved (see Figure 1).

In the decisions where it was clear that an interpreter was present, more than half only have generic, copy-paste template sort of statements about them, for example “The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.”

While these written decisions often describe the applicant (or asylum seeker) as speaking, saying, claiming, responding etc, interpreters themselves are only infrequently presented as communicating.

In eight cases, including one where the hearing was conducted in English, there is a little more discussion of interpreting, but only because it has been raised as an issue by an applicant or their lawyer. In only two decisions does a decision-maker make what appears to be unsolicited remarks related to an interpreter.

This very minimal inclusion of interpreters in these written decisions contrasts sharply with how asylum applicants are represented. Throughout, they are most often described as communicating, e.g. “the applicant stated this”, “the applicant claimed that” (for more discussion see Smith-Khan, 2017), when of course in actual fact in most cases it would have been an interpreter’s English words that are being written down or summarized. Already in this corpus of decisions, it is evident that the written performance of credibility assessment hinges primarily on presenting how the asylum-seeker communicates, with very little explicit recognition of interpreters’, or indeed other interlocutors’, contributions to the communication.

Raising multilingual communication, challenging authorship

When applicants or lawyers try to challenge this invisibility of interpreting or translation, it can be hard for them to get the decision-makers to accept their arguments.

For example, in one case in this corpus, a decision-maker drew on the ideologies of inconsistency and decontextualized fragments to find an asylum-seeker not credible. She was mainly concerned about the inconsistent use of the words “giving” and “sending” when it came to the part of the applicant’s claim where he talked about sharing information about Christianity with his customers.

In this particular case, it was earlier noted that the applicant, who was Chinese, had professional assistance putting together his application, and that he had prepared a written statement which was “later translated into English” to be included as part of the application. The tribunal hearing was conducted with a Mandarin-English interpreter.

The official reports in her decision:

The Tribunal indicated to the applicant that there appears to be inconsistencies in the evidence, namely that in oral evidence he had said that he was giving the customer some material whereas in writing he has claimed that he was sending the material. The applicant stated that the mistake had been made by the translator. The Tribunal indicated that the inconsistency could raise doubts about the veracity of his claims and his credibility generally, and his general credibility. The Tribunal invited him to comment or respond. The applicant said if there is any doubt he is regretful.

From what is evident from the written decision, the asylum seeker (referred to as an “applicant” as per Tribunal conventions) consistently stated throughout the hearing that he gave and did not send these materials, so the apparent inconsistency is between what appears in the written statement prepared when he initially applied for asylum, and later when interviewed.

Here, along with relying on decontextualized fragments to find an inconsistency, the ideology of narrative authorship is clearly demonstrated. When raising the apparent inconsistency between “sending” and “giving” the tribunal member assigns authorship to the asylum seeker: the applicant said in oral evidence and the applicant claimed in writing. However, in fact, those utterances and words were produced by two others: an interpreter and a translator. When the applicant seeks to respond to this issue – again, communicating with the assistance of an interpreter – he raises this exact point: that it was the translator who produced the English version of the statement and so it must have been a mistake they made.

The tribunal decision-maker mentions this particular inconsistency at multiple points, and the applicant consistently points to the translator. But unfortunately, the tribunal member does not accept this at any point and continues to suggest that this inconsistency undermines the applicant’s credibility.

Written texts as reliable representations

I’ve been discussing these types of issues and ideologies for some time now, and a few years ago I was excited to find an Australian Federal Court review where the original rejection had involved a similar type of inconsistency, and the Federal Court judge rejected the use of decontextualized fragments (Smith-Khan, 2022).

Part of the claim was that the asylum-seeker’s family started running a shop, and that sometime later the shop had been attacked. The apparent inconsistency was that during one interview, the asylum-seeker talked about an attack occurring “a few months” after opening the shop; and at another interview, the asylum-seeker provided two dates that suggested the attack was about six months after the shop opened. The merits review official rejected the case, and at first appeal a judge agreed with their approach.

In a further appeal to the Federal Court of Australia, however, I was very happy to discover that the asylum seeker’s lawyers argued that the judge should look beyond these decontextualized fragments to consider the actual interaction, involving questions and answers, that took place in one of these interviews. Even better, the judge accepted this argument, and throughout his written decision, we find extracts of a transcript of the immigration interview to which he refers to demonstrate this reasoning.

Analysing protection interview discourse

Particularly relevant to our current discussion is this extract of the transcript (see Image). The transcript is reproduced in the court decision (references are to the Immigration Officer (Off) and the asylum seeker (App)).

By looking more closely at the interaction, instead of just those decontextualized fragments, the judge concluded that the original finding of an inconsistency was not logical, and that the answer “a few” could be explained by the way the questions were worded, and because of the official’s interruptions too. He observed that “the question … posed two alternatives. It was not an open question” and the asylum seeker’s “answer was the most accurate of the two alternatives.”

Importantly, the judge also emphasizes that relying on decontextualized words is particularly problematic “in an interview where the [asylum seeker] was unrepresented and which required an interpreter …” (my emphasis).

However even in this exceptionally positive case in which we see an uncommon resistance against these pervasive language ideologies, where the lawyers and judge support the approach of looking more closely at the interaction, we are still not actually looking at the interaction itself. We are looking at an entextualization of a spoken interaction into a written transcript.

And very significantly for our purposes, not only is it a transcription of speech into writing, in doing so, we also see a multilingual interaction, involving Arabic and English, transformed into a monolingual English one. In the process, all of the asylum-seeker’s and interpreter’s Arabic utterances simply no longer exist.

We also see an interaction that actually had at least three speakers – the decision-maker, the asylum-seeker and an interpreter, transformed into one where the interpreter is once again made invisible.  All of the interpreter’s English utterances are textually reassigned to the asylum-seeker, reflecting and reinforcing this ideology of narrative authorship.

This shows that even in very exceptional cases where there is resistance to the problematic language ideologies at play in asylum credibility assessments, these ideologies are so deeply engrained in institutional practices that they persist in ways like this.

Hypothetical transcript with the vanished interpreter contributions in red.

Perhaps the choice of a monolingual transcript was pragmatic in this particular case, since the lawyers’ arguments relied on questioning approach rather than any particular issue with interpreting. However, the fact that they could make this choice suggests that transforming multilingual oral communication into monolingual written texts is an accepted norm in this setting. Further, the choice to attribute the English utterances to the asylum seeker, similar to the Tribunal decision corpus, further erases the interpreter’s contributions.

In this example from Australia, we can see how the choices made in how audio recording of the immigration interview is transcribed involves a transformation process. However, in many other jurisdictions, this can happen through other forms of entextualization. In places where asylum interviews are typically not audio recorded, the immigration official must simultaneously conduct the interview, while also making a written record of what is apparently said (Maréchal, 2022; Wadensjö et al., aop).  Arguably with that arrangement there is even less transparency than in the Australian case, because there will be no audio records to consider when seeking to examine the accuracy of that written record, or to raise issues with the interpreting or any other part of the interaction. However, even in the Australian case, we can see that languages and participants circulate unequally throughout asylum procedures: multilingual interactions become monolingual documents, and interpreters, though very often physically present in interview room, are all but erased on paper.

Structures and practices

If we look beyond the decision-making process, these ideologies also help justify and are reinforced by structural aspects of asylum processes, and again the Australian setting provides a clear example, but these considerations are also relevant elsewhere.

Despite Australia being a world-leader in terms of its professional accreditation for interpreters, poor working conditions for community interpreters suggest that their professional skills are not highly valued. These conditions include being poorly paid and working mainly in insecure freelance roles (Cho, 2023). For legal interpreting many report not even having access to a chair to sit on in court, or a table to take notes, or not being given water to drink, or adequate breaks (Hale & Stern, 2011).

In the asylum system, interpreters are generally only booked for the exact start time of the asylum interview or hearing, and are given very little or no briefing on the application. The government department is effectively the client – they choose and pay the interpreters. The interpreters do not have permanent contracts but work casually, on an ad-hoc basis through external agencies. This set-up understandably has an impact on the power dynamics in the interaction, limiting interpreters’ ability to raise issues about how the officials conduct the sessions, how they ask questions or interrupt the asylum-seekers.

This type of work arrangement is also an environment where interpreters may feel uncomfortable asking for clarifications or sharing doubts. There are also time-related pressures created by room bookings and interpreting assignment booking which limit the duration of interviews or the duration of an individual’s interpreter’s involvement.

The way languages are classified by the interpreting agencies and official interpreter accreditation body can also create challenges: lawyers report having trouble being able to choose the right type of interpreter for their needs, for example not being able to specify a particular variety of Arabic.

Also, while there is effectively a right to interpreting in asylum interviews and hearings, there is no such right beyond the interview room. Some community legal centres have very tight interpreting budgets, and have to sometimes rely on untrained volunteers or family members to help with interpreting, or preference telephone interpreting over face-to-face interpreting because it costs less.

Further, going back to this idea of the asylum seekers being the sole narrators of their testimony, there is no right to legal representation for asylum seekers in Australia. This somehow seems justified in a system where the testimony is ideologically viewed as simply the asylum-seekers’ own.

This is significant for so many reasons: both research and practice both tell us that having legal assistance has a huge impact on how strong an asylum application will be, and whether it will meet very stringent procedural requirements (Ghezelbash et al., 2022; Smith-Khan, 2021). Further though, the lawyers I’ve interviewed often talk about the interaction monitoring role they play in asylum interviews. Being familiar with their client’s case means that they are better placed to pick up any issue that might come up in interpreter mediated encounters and to intervene and advocate on behalf of their client – something that interpreters can’t do due to the limits created by their code of conduct and ethics. Lawyers can also note such issues and use them as grounds for an appeal, putting more pressure on officials to do the best they can to ensure smooth communication (Smith-Khan, 2020).

Having knowledge of institutional processes and challenges, they are also better placed to navigate the bookings processes, to best ensure an appropriate interpreter is chosen. This makes them valuable in terms of addressing some of these structural issues just discussed, yet only the small number of asylum seekers who have access to legal support can benefit from this sort of assistance.

If we adopt this ideology of asylum-seekers producing their refugee narrative all alone, then all of these structural issues are much harder to challenge, and both interpreters’ and lawyers’ contributions to the production of refugee testimony can be denied.

Conclusions

In this post I have introduced some key language ideologies that operate in asylum processes. Through the data I have shared, I have tried to demonstrate how these ideologies affect how asylum claims are assessed and how asylum seekers’ credibility is evaluated. In particular, I have sought to demonstrate how these ideologies operate to render invisible interpreters’ and interpreting’s contributions in asylum communication. This is a key part of the institution’s discursive performance of objectivity and legitimacy that acts to entrench their authority to make these types of decisions: because for them to rely on assessments of asylum-seekers’ communication in the way they do, other participants’ contributions in the co-production of testimony cannot be acknowledged.

To close, I want to leave us with this thoughtful quote in which to find motivation for our work:

As figures who stand at the intersection of global economic and political projects, interpreters enable the movement of people, ideas, and capital across borders. An understanding of the invisible labor of interpreters disturbs the alleged transparency, neutrality, and ease of communication that is so foundational to the authority of institutions of global governance. (Kunreuther & Rao, 2023, p. 250)

This is why I believe that research in this area is so crucial, and that we must all continue to do our part to investigate interpreters’ work and working contexts, and to challenges discourses, rules and practices that devalue them.

References 

Cho, J. (2023). Bilingual workers in a monolingual state: Bilingualism as a non-skill. International Journal of Bilingual Education and Bilingualism. 10.1080/13670050.2023.2213374
Eades, D. (2012). The social consequences of language ideologies in courtroom cross-examination. Language in Society, 41(4), 471-497.
Ghezelbash, D., Dorostkar, K., & Walsh, S. (2022). A data driven approach to evaluating and improving judicial decision-making: Statistical analysis of the judicial refugee of refugee cases in Australia. UNSW Law Journal, 45(3), 1085-1123.
Hale, S., & Stern, L. (2011). Interpreter quality and working conditions: Comparing Australian and internationa courts of justice. Judicial Officers’ Bulletin, 23(9), 5-8.
Kunreuther, L., & Rao, S. (2023). The Invisible Labor and Ethics of Interpreting. Annual Review of Anthropology, 52. https://doi.org/10.1146/annurev-anthro-052721-091752
Maréchal, M. (2022). Engagements institutionnels. Enjeux glottopolitiques de l’interprétation dans les instances décisionnaires de l’asile en France. Glottopol : Revue de sociolinguistique en ligne, 36. 10.4000/glottopol.1653
Piller, I. (2015). Language Ideologies. In K. Tracy (Ed.), The International Encyclopedia of Language and Social Interaction. 10.1002/9781118611463
Smith-Khan, L. (2017). Telling stories: Credibility and the representation of social actors in Australian asylum appeals. Discourse & Society, 28(5), 512-534.
Smith-Khan, L. (2020). Migration practitioners’ roles in communicating credible refugee claims. Alternative Law Journal, 45(2), 119-124.
Smith-Khan, L. (2021). “I try not to be dominant, but I’m a lawyer!”: Advisor resources, context and refugee credibility. Journal of Refugee Studies, 34(4), 3710-3733. https://doi.org/10.1093/jrs/feaa102
Smith-Khan, L. (2022). Incorporating sociolinguistic perspectives in Australian refugee credibility assessments: The case of CRL18. Journal of International Migration and Integration. https://doi.org/10.1007/s12134-022-00937-2
Wadensjö, C., Rehnberg, H. S., & Nikolaidou, Z. (Ahead of print). Managing a discourse of reporting: the complex composing of an asylum narrative. Multilingua: Journal of Cross-Cultural and Interlanguage Communication. https://doi.org/10.1515/multi-2022-0017

(Image credit: Eurekastreet)

Editor’s note: This article is based on a presentation delivered as part of a plenary panel, ‘Transdisciplinary Approach to Forensic Linguistics’, at the 16^th Biennial Conference of the International Association for Forensic and Legal Linguistics, held at the University of Santo Tomas, Manila.

Questions and comments from our readers and conference participants are welcome.

***

Navigating migration procedures in Australia and other countries of the global north can be very challenging. Australian migration law and procedure are incredibly complex and restrictive, and the rules change constantly – some almost on a daily basis.

Processes are also linguistically demanding: making sense of the law itself and then navigating the application process requires a very high level of proficiency in written, legal English, and strong computer literacy. Depending on the type of application, individuals may also need to attend an interview and discuss personal and sensitive parts of their life in great detail, as a way to prove their credibility.

Intercultural communication is a common feature in this setting, in multiple ways. First, and perhaps most obviously, different participants usually come from different national, ethnic, racial and/or linguistic backgrounds. Second, the immigration department and its officials have their own specific bureaucratic culture that, more often than not, will be unfamiliar and challenging for many visa applicants.

This means that while applicants are allowed to apply for a visa on their own, having professional assistance can often be crucial to a smooth and successful application (Jacobs 2022; Reynolds 2020; Smith-Khan 2021c). In Australia, practicing lawyers can assist with visa applications and first-stage appeals. Non-lawyers may also assist. To be authorised, they must complete a Graduate Diploma in Migration Law, pass external examinations, and then register as a migration agent. Together I call these two groups “migration practitioners”.

Despite their importance, there has been very little research about Australian migration practitioners (van Galen-Dickie 2021). My research on asylum procedures found that official texts also pay little attention to how practitioners shape applicant testimony and mediate institutional communication (Smith-Khan 2020). To find out more, my current project explores practitioners’ beliefs and practices when communicating with and on behalf of their clients. I started by examining relevant law and institutional texts and then conducted qualitative interviews with current practitioners, and students training to become registered migration agents. I also observed student practical activities where they role-played migration agents conducting client consultations.

“Life From A Suitcase” sculpture installed at Pyrmont dedicated to immigrants in Australia (Image credit: Wikipedia)

To better understand how intercultural communication is understood in this context, I follow Ingrid Piller’s (2017) approach to examine who makes language and culture relevant, to whom, in which context, and for which purposes. I identified multiple and conflicting discourses about intercultural communication, which emphasise and understand language and culture in different ways, and reflect on the potential impacts of these divergent understandings.

Difficult work

Current practitioners shared insights into the challenges they face in their day-to-day work, particularly emphasising contextual factors. They pointed to the ever-changing and increasingly restricted visa options as a key difficulty: they must carefully balance different professional goals. They must stay up-to-date with changes to migration law, and emphasise their value to their clients. They must also manage their clients’ expectations and clearly communicate the limits of their power within the system. As visas options become increasingly limited, this can be difficult for clients to accept.

Another key challenge is that the channels through which practitioners and applicants can communicate with the immigration department are increasingly inaccessible. Participants explained how in the past, each visa application was assigned an individual departmental case officer who was identified by name, and had a direct email address and telephone number. If practitioners had a question or update about an application, they could easily contact that person. Now instead there are only general contact details for various sections of the department, limiting applicants’ and practitioners’ access and agency. One participant talked about keeping an Excel sheet with old individual contact details she saved in the past and using this to try to reach out to officials directly. What once was standard practice, that list of contacts is now a treasured and rare resource.

Deviance and deficiency

These challenges intersect with another: that practitioners are more tightly regulated now than ever before, leading to stress and in some cases even fear. My analysis of government discourses goes some way to explaining this. In a recent parliamentary inquiry report, migration practitioners are presented as policy problems: they pose a threat in terms of their competence and ethics. Migrant clients are also problems: in particular, “culturally and linguistically diverse” clients are framed as vulnerable and in need of protecting from practitioners. The report opines that they are “socially, legally and financially vulnerable and are open to exploitation from the actions of unscrupulous, unlawful and unethical registered migration agents.”

Immigration is Bolstering Australia’s Population Growth (Source: Statista)

This institutional discourse zooms in on two groups of actors, presenting particular deficiencies they are said to bring to migration processes. Rather than focusing on the complex legal structures and procedures that exacerbate or even create difficulties and vulnerabilities, this discourse places the spotlight on migration practitioners, justifying tighter regulation. They also make language and culture individually salient for migrants, and present these as individual attributes that apparently create vulnerability (Smith-Khan 2021b).

Testable and valued language skills

Language becomes salient in other ways too, connected with migration practitioners. One rule aimed at controlling and excluding incompetent and unethical practitioners regards English language proficiency. Yet this rule is problematic and potentially discriminatory in its application to different groups (Smith-Khan 2021a), as can be demonstrated with an example of two students in the project.

One student is multilingual and came to Australia as a skilled migrant. He grew up in South India, speaking a family language at home, and a regional language in his community. All of his schooling from the beginning of primary school until the end of university was strictly in English, to the point that the students were punished if they were caught speaking another language even in the playground. He used English during work travel to other parts of India, later when working overseas, and then finally in Australia. Proving his English proficiency through testing was a requirement for his Australian skilled permanent visa. He reports that his migration and travel experiences helped him become aware of different ways of speaking English, and communicating with people from different backgrounds.

Another student is a monolingual English-speaker, born in Australia. He too was educated in English, with fewer opportunities to learn any other languages. He has only worked in Australia. While he speaks fluent English and was friendly and engaging in the role-plays I observed, on various occasions, he used Australian English idioms that his role-play partners did not understand, affecting their interaction.

To become registered migration agents, both individuals must successfully complete the Graduate Diploma and pass two externally-administered written and oral exams. These are specifically designed to evaluate their occupational competencies, including their profession-specific communication skills. However, only the Australian-born candidate is assumed to have sufficient English language proficiency. The other, despite his education and work history, must again sit an IELTS test to fulfil the registration requirements.

Country of birth of Australian residents (2021) (Source: Wikipedia)

Here, language and migration history become salient to who legislators trust as competent and reliable. These rules assume that being multilingual and from a particular country of origin are potential threats to English language proficiency, and further, that ensuring English language proficiency helps ensure competent practice and protect vulnerable clients.

Invisible language work

In contrast to the hypervisibility and importance of English proficiency, other language skills and practices are much less visible in official discourses. Yet in reality, many practitioners use other languages in their day-to-day work. All current practitioners in the study who have English as a second language report using other languages in their work. Some serve almost exclusively clients from the same language background or country of origin, while others have more diverse client groups.

Significantly, the Australian immigration regime is almost completely officially monolingual: law and policy are published in English only, all application paperwork must be completed in English. Applicants must simply manage, regardless of their own linguistic resources, and officials are not expected to know or use other languages in their work. This means that when practitioners use languages other than English, they provide a benefit not only to visa applicants, but also to the department, filling a substantial institution-wide communication gap.

Both monolingual and multilingual practitioners also describe the importance of mobilizing other types of intercultural communication skills in their work. They discuss their awareness and management of linguistic issues when working with interpreters, or when speakers use different varieties of a language. They talk about their strategies to check and address issues with understanding. They also describe strategies like switching between different languages for different parts of their interaction to best suit their clients’ needs, for example providing written advice in English, but supplementing this with an oral explanation using another language. Code choice and switching are also discussed as means of identity performance and rapport building.

Relevant sociocultural knowledge is also valued. Those with a migrant background identify their lived experience and insider knowledge as important assets in interacting with and representing their clients. Practitioners who don’t identify a shared background also value this type of knowledge, but report developing an understanding of their clients’ country of origin, ethnic, linguistic and other social groups.

Navigating different types of interpersonal and power dynamics can also be more challenging and complex than official discourses envisage. For example, one young non-white female practitioner shares her experiences assisting high-powered CEO clients. She must carefully balance her professional duties, with maintaining good relationships with the client companies, who can be very demanding, and satisfying her managers, who closely scrutinize and control every detail of her interactions.

While this diverse range of sociolinguistic resources can influence client-practitioner interactions, and therefore the application process, they are not officially acknowledged or addressed in the way that a “testable” level of English proficiency is. Therefore, I argue that migration practitioners carry out important invisible language work that much of the institutional discourse does not explicitly recognize, and is sometimes even discursively transformed into risk rather than benefit (see also Cho 2023).

Developing counter discourses through education

However, the study also found that practical experience and education can help future practitioners to push back against harmful discourses, and to value their own communication skills.

For example, one student reflected on how the role-plays helped build her confidence. English is her second language and she describes herself as a nervous person when it comes to public speaking. She was hesitant to participate in the project, and kept her laptop camera switched off when participating in her first role-play. She said that it allowed her to pretend “I’m just talking in the dark to myself.” Turning her camera on during the next round of role-plays later in her study was evidence for her that she had become more confident. But her gain in confidence did more than just increase her class participation. At the end of her study, she passed her external oral exam on her first attempt, and even reported having an enjoyable chat with the examiner afterwards.

Significantly, she reports that her formative experience during her study also broadened her career plans. In her first research interview she said that she could not work with asylum-seeker clients, as she didn’t feel equipped to assist people who may have experienced trauma. But by the time she’d graduated and was awaiting her registration, she’d applied for work experience with an organization that specifically assists refugees.

Student participants also shared critical reflections on migration profession registration rules.

For example, they critiqued assessment design, arguing that time-restricted external exams don’t reflect the nature of the real work environment. Others made similar comments about English language tests, questioning why they needed to take them again, and why Academic IELTS was required for migration practice, when the tests were not actually designed to evaluate the skills needed for their work.

Other students developed a sense of the bad reputation that migration agents have amongst some government departments and policy-makers. While some embraced the idea that more stringent entry requirements would help prevent “dodgy” agents, others regarded this more critically. One suggested an ideological link between attitudes towards migrants and migration agents: “I think they see us as unnecessary… Because I think they are very anti-immigration, and I don’t think they really care for anybody helping migrants whatsoever…I just think that the Government’s deliberately making it difficult for people to get into the profession”.

So where does this leave our understanding of intercultural communication in migration law practice?  Undoubtedly, migration practitioners play complex and important roles in assisting people applying for Australian visas, mobilizing a range of sociolinguistic resources in the process. Yet there is a huge variation in how their contributions are viewed, based on diverging ways of making language and culture salient in this setting.

As I’ve argued, on the one hand, official discourses present intercultural communication with a focus on particular individuals: migration practitioners become risks that need managing, and clients are vulnerable to exploitation.

On the other hand, the research uncovers considerable counter discourses from current and future practitioners, who value their own skills and suggest that legal and procedural structures should be the target of greater scrutiny. Happily, my research suggests that students’ learning experiences can help equip them to have confidence in their own professional capabilities and to develop this critical focus on broader context.

Finally, with a recent change of government in Australia, significant reforms have been announced, acknowledging some of the big structural issues within the migration system. This creates a great opportunity for improvements to be made so that migration practitioners and the clients they serve can have a more positive and empowering experience.

References

Cho, J. (2023). Bilingual workers in a monolingual state: Bilingualism as a non-skill. International Journal of Bilingual Education and Bilingualism (ahead of publication).
Jacobs, M. (2022). The metapragmatics of legal advice communication in the field of immigration law. Pragmatics, 32(4), 537-561.
Piller, I. (2017). Intercultural Communication: A Critical Introduction (2^nd ed), Edinburgh University Press.
Reynolds, J. (2020). Investigating the language-culture nexus in refugee legal advice meetings. Multingua: Journal of cross-cultural and interlanguage communication, 39(4), 395-429
Smith-Khan, L. (2020). Why refugee visa credibility assessments lack credibility: a critical discourse analysis. Griffith Law Review, 28(4), 406-430.
Smith-Khan, L. (2021a). ‘Common language’ and proficiency tests: A critical examination of registration requirements for Australian Registered Migration Agents. Griffith Law Review, 30(1), 97-121.
Smith-Khan, L. (2021b). Deficiencies and loopholes: clashing discourses, problems and solutions in Australian migration advice regulation. Discourse & Society, 32(5), 598-621.
Smith-Khan, L. (2021c). “I try not to be dominant, but I’m a lawyer!”: Advisor resources, context and refugee credibility. Journal of Refugee Studies, 34(4), 3710–3733.
van Galen-Dickie, M. (2021). The Protégé Effect:Learning from the Experience of Graduates in an Online Community of Practice, Doctoral Thesis, University of Southern Queensland.

Video recording of this lecture now available on YouTube (27/12/2023)

Image credit: Chris Montgomery via Unsplash

Language plays a central role in legal settings. The way linguistic diversity is conceptualized and accommodated can affect access to justice in a myriad ways and there is a plethora of linguistic scholarship to show that. Yet a growing concern among researchers working in this area is that this scholarship may not always reach the right audiences to have as much of a real-world impact as it could or should have.

But how do we make our research more accessible to those who are in a position to improve the design and implementation of law, procedure, and policy? For myself and collaborators like Dr Alexandra Grey, and members of our Law and Linguistics Interdisciplinary Researchers’ Network, our recent efforts have been multi-pronged, involving everything from preparing individual submissions to relevant government inquiries and reviews, through publishing and guest editing in legal journals, to presenting at law conferences.

However, as pioneering law and language scholar Diana Eades recently observed, effecting change in this area is like water dropping on stone: it is a long-term process.

Therefore, it is just as important to reach future lawyers and law- and policy-makers. As a teacher based in a law faculty, 2020 created a unique opportunity for me to work on integrating linguistics research into my law teaching.

In this post, I report back on the way in which I integrated my research expertise – in linguistics and beyond – into my teaching. I first provide some background on the teaching context, and explain what I did to integrate linguistics (and other) scholarship into my teaching during the changes that occurred as a result of the COVID-19 pandemic. Finally, I will share the feedback I received about the learning materials I developed and critically reflect on possible next steps.

Ethics Law and Justice in 2020

Since beginning as a Chancellor’s Postdoctoral Research Fellow at the University of Technology Sydney (UTS) in 2019, I’ve had the opportunity to teach in a core subject, Ethics Law and Justice (ELJ), which provides (usually) first-year law students with the opportunity to learn about lawyers’ professional practice rules, reflect on ethical legal practice, and on access to justice in legal settings. My Fellowship research project involves exploring the beliefs and practices of a particular group of practitioners – migration agents – and specifically how they and their clients navigate access to justice through their interactions. More broadly, my research is interested in linguistic diversity as a factor for access to justice. As a core subject, all law students must complete ELJ, creating an excellent opportunity for me to reach a large number of potential future legal practitioners at an early stage in their study.

In March 2020, in response to the global spread of Covid-19, UTS made the decision to shift classes online. For ELJ, we shifted to using Blackboard, Zoom and Microsoft Teams, with individual teachers being responsible for the particular timing, structure and medium for their individual seminar groups. A significant change was the way we divided up delivery of the subject content. Each teacher became responsible for preparing a pre-recorded lecture, in the form of an audio-narrated Powerpoint presentation, for one or two weeks of the semester’s material, that would be accessible for the whole ELJ cohort to watch, rather than each individual teacher preparing and presenting the entire semester’s content individually for their groups. The teachers could then focus more energy into designing and conducting the interactive learning components of their individual seminars, and students could watch lecture-type content before (or after!) their live seminar.

Integrating research into law teaching

For me, this meant that I had the opportunity to update the learning materials to reach the whole cohort of over 300 students. I was responsible for the part of the subject exploring social and cultural factors that can affect access to justice, with pre-existing material mentioning refugees, asylum seekers and migrants, Indigenous people, and disability. There was also a little content on language considerations, with some discussion questions about whether students had ever communicated using an interpreter before, and the Local Court Bench Book’s section on interpreters was included as a reading resource.

While still covering the same topics as usual, I redesigned the lecture content to integrate a range of new considerations and explanations, beyond what had been provided previously. These incorporated my and others’ scholarship from my various areas of research interest, including studies on asylum seekers and refugees, language and cultural concerns in legal settings. Some of this research I also added as additional readings, choosing blog posts rather than traditional research outputs to maximize accessibility and engagement for students. Similarly, I added a video resource (Aboriginal Interpreter Service), along with an explanation and instructions, to provide another engaging source that exemplified in practice some of the relevant linguistic and cultural concerns.

Where to next?

Autumn 2020 provided an opportunity for me to integrate my research experience and expertise into my teaching, and the feedback I received overall show promise. Personally, I believe that making these changes also motivated me as a teacher: not only could I share knowledge and do my best to present this in accessible ways for students, I was also able to demonstrate my passion and enthusiasm for these areas.

Most importantly, I was able to raise awareness about language and communication among the next generation of lawyers.

However, like some of my colleagues, I suspect that the remaining challenge is mainly one of delivery rather than content, especially in the context of remote learning. In future, the key way I’d like to refine my approach is to do more to integrate innovative learning technologies. While I am confident and passionate about the content, it is equally important to reflect carefully on how I share my knowledge, and ensure that it is accessible, relatable and engaging. In fact, when teaching topics that are all about optimal communication and equal participation, I’d go so far as to say that this is absolutely essential!

In a world where public debates about refugees and asylum seekers often focus on whether they are telling the truth, it should probably come as no surprise that government processes for evaluating asylum claims emphasize assessing applicant credibility.

These credibility assessments have – rightly – attracted ample criticism from scholars across multiple disciplines for many years now. From the earliest critiques, scholarly commentary has acknowledged that the asylum process is a site of intercultural communication and suggested that many of the issues with credibility assessment relate to this. Credibility assessment guidance itself also acknowledges that asylum seekers have different social and cultural backgrounds to those of decision-makers and includes suggestions on how to accommodate these differences.

Focusing on communication makes sense, given that the indicators used to measure asylum seekers’ credibility generally relate to communication. These include evaluating asylum seekers on how consistently they communicate across various interactions and written texts (internal consistency), and how well their narrative aligns with officially preferred sources of knowledge relating to their home country and social group. Officials may also refer to the level of detail in their communication, and even to their demeanor, when explaining whether or not they find them credible.

In my doctoral research, I brought a fresh angle to scrutinizing these processes by critically examining the discourses about language, communication and diversity underlying the credibility assessment guidance provided to Australian officials reviewing refugee visa applications, as well as a collection of publicly available decisions. By conducting a critical discourse analysis I uncovered a set of problematic language myths on which these credibility assessments rely.

Language myth #1: Texts are produced by individuals in isolation

The first language myth is that individuals, in this case asylum seekers, can produce (written or spoken) texts alone. This false assumption leads to the idea that it is legitimate and possible to analyse and compare texts attributed to asylum seekers to determine whether their performance demonstrates credibility.

This is highly problematic because texts produced in the process of applying for asylum are closely dictated by legal and procedural requirements. They are also the product of the interaction of a variety of actors, such as the officials who ask questions and determine the conduct and content of interviews, legal advisors who sometimes speak and often write on behalf of their clients and offer them a range of advice on what to say and how. They may even be the products of multiple languages when interpreters are involved.

Language myth #2: A truthful narrator has one single story

The second language myth is that a truthful narrator will recount an event or other information consistently over time, and across different contexts. This false assumption leads to the idea that isolated fragments of text, removed from their original context, can provide evidence of deception.

For example, in my study, one applicant was judged to be lying because he told about an injury he had received to his ‘arm’ in one document and to his ‘shoulder’ in a later interaction. The applicant explained that he did not have access to an interpreter during the preparation of the earlier document and his English was not good enough to distinguish between these two body parts.

Language myth #3: Bilinguals are fully proficient in all their languages

The ‘arm’ vs ‘shoulder’ example brings us to yet another language myth that informs assessments of refugee credibility: officials’ poor understandings of bilingualism. The asylum seeker mentioned above had explained that he used the word ‘arm’ when putting together a statement with a migration lawyer with whom he spoke English, without the assistance of an interpreter, and this is why he had used this more general term rather than the more specific ‘shoulder’.

This claim is easy to accept when we have a nuanced understanding of what it means to be bilingual. Bilinguals usually have different levels of proficiency in their languages. Yet, decision makers usually expect bilinguals to have equal, complete fluency across all their languages. This often leads to the dismissal of explanations related to lack of access to interpreting.

This language myth makes it seem irrelevant whether an applicant communicated through a language they spoke well or not, or whether they had access to interpreting. Conveniently, this language myth provides an easy justification for decreasing public funding for language services.

Language myth #4: The decision maker is outside the interaction

Decision-makers themselves are important co-producers of the refugee narrative and of the official record of the asylum hearing. They ask the questions, and control who can speak and when. They draw on their own experiences and understandings of the world to make sense of asylum seekers’ stories. They also assess any explanations given for credibility-related concerns, drawing on their own beliefs about language in deciding how and whether to give these explanations weight.

Yet, their role in the interaction is routinely erased. Institutional guidance presents the decision-making process as one in which uniformity across different decision-makers is possible, and in which these individuals are able to set aside their “subjective beliefs”. This overlooks the inherently evaluative nature of these processes, discourages critical self-reflection and thus minimizes the decision-maker’s role in constructing asylum seeker credibility.

Language myth #5: Acknowledging intercultural communication ensures fairness

Credibility assessment guidance for refugee visa decision-makers explicitly acknowledges intercultural communication and scope for misunderstandings. However, a vague acknowledgement of intercultural communication may in fact reinforce language myths that entrench existing inequalities and disadvantage minority groups because they are hidden behind the label “intercultural communications”.

The language myths on which credibility assessment guidance is based undermine the fairness of these assessments. Asylum seekers are held responsible for texts whose production are beyond their individual control, variation between decision-makers is under-acknowledged, and the importance of interpreting and legal assistance minimized. Busting these myths challenges the credibility of credibility assessments themselves. To ensure fair processes, these types of assessments should play, at most, a minimal role within refugee decision-making processes. Too much is at stake to rely on inherently unfair assessments, especially in the face of insufficient legal assistance and antagonistic public discourse.

References

Smith-Khan, L. (2020). Why refugee visa credibility assessments lack credibility: A critical discourse analysis, (online, advance).
Smith-Khan, L. (2019a). Communicative resources and credibility in public discourse on refugees. Language in Society, 48(3), 403-427.
Smith-Khan, L. (2019b). Debating credibility: Refugees and rape in the media. Australian Review of Applied Linguistics, 42(1), 4-36.
Smith-Khan, L. (2019c). Migration practitioners’ roles in communicating credible refugee claims. Alternative Law Journal (online, advance).
Smith-Khan, L. (2018). Contesting credibility in Australian refugee visa decision making and public discourse. (Doctor of Philosophy), Macquarie University.
Smith-Khan, L. (2017a). Different in the same way? Language, diversity and refugee credibility. International Journal of Refugee Law, 29(3), 389-416.
Smith-Khan, L. (2017b). Negotiating narratives, accessing asylum: Evaluating language policy as multi-level practice, beliefs and management. Multilingua, 36(1): 31-57.
Smith-Khan, L. (2017c). Telling stories: Credibility and the representation of social actors in Australian asylum appeals. Discourse & Society, 28(5), 512-534.

Laura and Alex getting ready for their presentation at the Humboldt Symposium

This time two years ago, Alexandra Grey (my blog co-author) and I had realized that there were important strands of research underway in Australia and around the world in which linguistic and legal scholarship and practices were made relevant to one another, and we started talking more and more about how to better share knowledge between these researchers. It seemed that this research was disparate and that opportunities for interdisciplinary scholars to meet, collaborate and publish together were sporadic. We also wanted to build a clearer public profile to amplify emerging, interdisciplinary scholars like ourselves.

Our focus was not just the particularities and painfulness of legal jargon, so we didn’t fit the “Plain English” profile. And neither of us would have said our research could use the label “forensic linguistics” in the sense of investigating crime, or even in a broader sense of relating to language issues in courts. And yet we had a lot of interest in forensic linguists and other researchers we chanced upon who were combining law and language studies. Oftentimes we also had shared methods, and background reading, and problems. Despite this inchoate but real shared interest, we found there was little in the way of a cohesive articulation of how (or whether) there are theoretical and methodological bases upon which a field – sometimes also called ‘legal linguistics’ – is developing. We believed that this was limiting collaboration and limiting the strength with which researchers could present their work to audiences from distinct disciplines, particularly to legal scholars and practitioners.

So, we launched the Law and Linguistics Interdisciplinary Researchers’ Network (LLIRN) in early 2019, with a workshop-focused symposium for 31 participants. LLIRN closed out 2019 with 93 listserv members! We ended the year with LLIRN members presenting at the interdisciplinary Humboldt Symposium on ‘Sharing Knowledge’. With the support from the Humboldt Foundation, we also provided two scholarships for postgraduate student members to attend that conference. A couple of weeks later, we formed a panel of legal practitioners, researchers from the Federal Government’s forthcoming National Indigenous Languages Report, and early career researchers, to discuss linguistic diversity as a challenge to legal policy at the annual Australian Linguistics Society conference. We also sourced questions for that panel through LLIRN! We hope the momentum of LLIRN activities initiated by us and by our members continues into 2020. As we look back on the first year of its existence what have we LLIRNed so far? (Surely a pun this bad befits the season of Christmas cracker jokes.)

These events have been a good opportunity to reflect on our motivations and hopes for organizing the LLIRN. Over the last few years, we had both read, applied and contributed to research at the intersection of law and linguistics, as law school postdocs and, before that, as we undertook our doctorates together at Macquarie University’s Department of Linguistics. In brief, Alex’s doctorate was a legal and ethnographic examination of China’s constitutional minority language rights and Laura’s was on discourse, power and language ideology in official asylum seeker applications processes and political and media discourse in Australia.

Plus, we had had incredibly enriching experiences as part of the Language on the Move research group and therefore knew the value of building research networks of peers, mentors and mentees, sharing research findings, and building research leadership skills. It was through our participation in this group that we met each other, and developed a relationship of collaborating, organizing events and providing each other feedback on our work, sharing experiences and advice around publishing and career progression. So we were inspired to build a similar network at the junction of legal and linguistic research.

Purposefully expanding beyond our scholastic comfort zone, we sought to bring together researchers with varied approaches, including scholars of language rights and policy; forensic linguists; court translation and interpretation specialists; discourse analysts looking at varied state processes and state agencies, legislative corpus researchers, those concerned with diversity and equality, and those who teach university courses about language and the law. We identified and invited researchers from around Australia, as well as some international participants and an international keynote speaker, from a range of disciplines, and at all career stages to our inaugural Law and Linguistics Interdisciplinary Researchers’ Symposium in April 2019 at Sydney Law School.

To build up awareness and community between these participants, the theme of our inaugural symposium was: ‘What do we share?’ A seemingly simple question… To help answer it, we sent out a 10-question survey, asking our inaugural symposium’s participants about their qualifications, affiliations, methods, theoretical approaches, and subject matter.

Professor Katrijn Maryns during the Inaugural Law and Linguistics Interdisciplinary Researchers’ Symposium in April 2019 at Sydney Law School

Amongst the initial participants, there was a high proportion with tertiary qualifications in both law and linguistics. Many also had first-hand or up-close experience of being a learner of a second or subsequent language, and many had experience applying academic knowledge in non-academic settings, including policy work, legal practice, professional translation and interpreting and non-academic linguistic work. Because of these applied jobs and disciplinary cross-overs, the need to communicate nuanced, research-based knowledge in accessible and practical ways has been a familiar challenge on the radar of LLIRN from the outset.

We proposed, at the symposium, that the emerging field coheres around three broad research problems – language-related social justice, regulation of language, and inequalities and hurdles in bureaucratic processes – and five key types of phenomena being studied: speech/language variation; language ideologies; intercultural (mis)communication; rules and policy; and processes of social and political change. We asked participants to consider these ‘nodes’ and whether their research could be described in these terms. Over the year, we have refined them, and are keen to continue the discussion!

The theme of ‘regulation of language’ is perhaps better described as ‘harmonizing and/or improving the regulation of language’, i.e. a critical and applied orientation rather than a descriptive, typological orientation to language policy. In addition, our recent ALS panel’s discussant, the Hon. Peter Gray, suggested we drill down into types of legal policy: policies about the legal system and courts; administrative rules and processes; and legislation are distinct from one another not only in their forms but also in their agents, their motivations, and their responsiveness to linguistic diversity and linguistic research.

We opted for an interactive workshop approach at the inaugural symposium. The interactive sessions included discussions of how to conceptualize this emerging research field, debates, challenges and solutions in our research and teaching, and a ‘collaboration fair’. In the collaboration fair, participants could propose questions, events or publications on which they would like to collaborate, and ‘sign up’ to cooperate in others’ requests, then talk immediately to each other about these collaborations. After the symposium, we migrated all the suggested projects and expressions of interest into a shared online folder, so that attendees could go back, and new LLIRN members could join in by adding themselves or contacting others who had expressed a shared interest. Another LLIRNing from the year is that people engage in developing these links with one another far better in person than online, so another symposium is in store for 2020!

2019 has shown us that there is a particular interest in LLIRN amongst Higher Degree Research students and Early Career Researchers. The network is beginning to show its value as a platform to develop mentoring, and its potential to create postgraduate research supervision opportunities. In fact, it has been very gratifying to us to have become ad hoc mentors to researchers even earlier in their careers than us who have approached us through the network. Many of these members report not having known that anyone else was pursuing the overlap of law and linguistics in which they, themselves, had developed an interest. Having a group identity and receiving recommendations and introductions through our members is so valuable given that this intersecting research area is not always well known or represented.

Ongoing challenges for LLIRN include how to communicate our research to key stakeholders in other research disciplines or beyond academia. Given our disparate approaches and the need to work within existing institutional structures, we continue to seek innovative ways to collaborate and share our knowledge and successes with each other and with those whom our work could benefit or should influence. We cannot over-emphasize the importance of events and activities that demonstrate or discuss sharing knowledge with researchers from a range of disciplines.

So please join us at https://mailman.sydney.edu.au/mailman/listinfo/law_linguistics_network to propose collaborative publications and presentations, promote new law and linguistics research, and meet LLIRNers from around the world!

2019 Conference of the International Association of Forensic Linguists

Note: This post was co-authored with Alexandra Grey.

The Biennial Conference of the International Association of Forensic Linguists (IAFL) was held at RMIT, Melbourne from the 1^st-5^th of July this year. The conference brought together a broad range of researchers from across the globe, interested in a variety of language-related issues in diverse legal contexts. However, despite this diversity, a clear issue emerged amongst the many presentations: the importance of tackling problematic beliefs about language in a format that is accessible and perceived as legitimate by those working in legal settings.

Reading from the introduction of her new book Researching Forensic Linguistics, the immediate-past president of IAFL, Georgina Heydon (RMIT), noted that miscarriages of justice sometimes arise because of “misconceptions about how language works”. Further, while legal professionals may be adept experts in using language, this does not make them language experts in the same way as linguists. This not only means they are “ill-equipped to provide linguistic expertise” but “are also largely unaware that linguistic expertise even exists” (see Ch 1).

Beliefs and misconceptions about language are theorised as “language ideologies” by sociolinguists; they are the “taken-for-granted assumptions about how language works” (Eades 2012, p. 474) which inform the way people like lawyers, judges and police officers conduct their work. Language ideologies help shape the expectations such people have about communication, in ways that may impact their decision-making, such as whether a speaker is proficient enough in a particular language to participate in a police interview or appear as a court witness, or requires an interpreter. Some of the conference presentations directly identified and tackled language ideologies, while many others sought to contribute evidence to correcting them.

For example, a number of presentations dealt with the ways police warn suspects that they have a right to remain silent and that anything they say could be used as part of the evidence against them at trial. This is called a “Miranda Warning” in the United States, and a very similar warning is obligatory in Australia. The various presentations dealing with these warnings tackled beliefs such as the assumption that if an L2 speaker is able to hold a casual, informal conversation, then they have sufficient proficiency to understand such a warning.

Scott Jarvis (University of Utah) presented experimental research that he and colleagues have recently undertaken in the US on the understanding of the Miranda warning. They tested an educated L1 English control group and an equally educated group of L2 English speakers from Arabic and Mandarin L1 backgrounds who all had been graded equivalent to B1 or above on the Common European Framework of Reference for Languages. The inquiry asked participants to write down what they heard with both short and long, simple and common sentences; short, simple sentences including legal terminology; and long, complex sentences including legal terminology. Then the participants heard and paraphrased the stipulated Miranda Warning clause by clause, and finally rated their own confidence in their correctness.

While the L1 English speakers were better than the L2 speakers at writing down all four types of sentence, their correctness dropped markedly on the long, complex, legal sentences, and both L2 groups had decreasing correctness across the four types of sentence, with very low levels of correctness on the long, complex, legal sentences. Jarvis suggests working memory is too strained on these sentences, which suggests that understanding something like a Miranda Warning will be difficult. The Miranda Warning comprehension task bore this out. Very few L1 English speakers were completely correct, with that cohort scoring between 15 and 22 out of 22, with a mean of 18. By contrast, only the highest-scoring of the L1 Arabic cohort scored 15/22, with the mean at 5/22. The highest-scoring L1 Mandarin speakers got 10/22 and that cohort’s mean was 3/22. Jarvis reminded us that in real arrest situations, participants may not be as well educated, and even if they are, stress and other factors are likely to affect comprehension. Nevertheless, the study found that even when participants reported high levels of confidence that they had understood the warning, what they actually understood was often erroneous, including thinking that they did have to answer police questions and that if they chose to have a lawyer present, they would have to arrange it and pay for it themselves

Georgina Heydon’s new book was launched at the conference

So we can see there is a real problem with assuming that people – even educated L1 English speakers – have the language ability to understand their rights to silence and to have a lawyer present. The consequences of not understanding are high-stakes, including accidentally waiving the right and self-incrimination.

This US study was complemented at the conference by Alex Bowen’s (ARDS Aboriginal Corporation) analysis of Australian police interviews in which investigators attempted to confirm that Indigenous suspects had understood Australia’s equivalent warning. Bowen’s examples demonstrated a wide variety of linguistic techniques police use to try to ascertain understanding, and in some cases showed situations where problematic responses were construed as demonstrating a level of understanding that was not actually apparent from the interaction. Bowen’s work will be further detailed in our next blog post in Language on the Move’s new “Language and Law” forum.

Misalignment or mistranslation of legal/policing terms across cultures was more broadly raised as a key problem in a number of presentations. Many speakers identified unfair outcomes when such problems were assumed not to have occurred because of the presence of an interpreter, or because, sufficient proficiency was incorrectly assumed, e.g. because the interviewee had been understood by the police officer in short exchanges about everyday matters.

Other presentations focused on how people in positions of authority conceptualize and evaluate the level of comprehension of their interlocutors. Although each interlocutor will inevitably draw on their own experiences and assumptions and their interpretation of the specific context in order to understand a concept, the difference in experiences and assumptions and therefore in understanding may not be anticipated or corrected. Laura’s presentation on refugee visa decision-making made a similar point, explaining that decision-makers make evaluative decisions drawing on their own diverse backgrounds (see also “Are we all different in the same way?”).

The participation of third parties can further complicate legal communication processes. For instance, Annie Heini (Aston University) demonstrated that third parties may make a range of choices in how they contribute to police interviews involving minors. These choices may stem, in part, from a lack of clarity and clear guidance about what their role is meant to be. The need for training in other interviewing settings, such as those involved in refugee visa decision-making was highlighted by a number of attendees. Philipp Angermeyer’s (York University) research on the infamous case of Florida v Zimmerman uncovered some of the effects of interview techniques. His presentation demonstrated the detrimental impact that the prosecution’s examination style had on how its own key witness was able to present her narrative in court.

Such training is an area where forensic linguists can play an important role, as Georgina Heydon illustrated. Heydon presented her research into police interviewing styles and the police training she has conducted based on that research. In this area, expert training has the potential to make a huge difference to investigation processes, and ultimately to individuals’ experiences in the justice system.

It is not only in training but also in law reform that forensic linguists are correcting problematic assumptions about language. For example, Ben Grimes (Charles Darwin University) emphasised the current opportunity to expand the contribution of forensic linguistic expert evidence: section 85 of the Australian Evidence (National Uniform Legislation) Act has changed how admissions from defendants are assessed by judges. It shifts the focus from whether the admission was made voluntarily (i.e. the speaker understood the right to silence yet spoke) to whether the statement is reliable. The court, considering reliability can take into account “any … characteristic of the person who made the admission, including age, personality and education”. Where the admission resulted from an interview, the court should also take into account “the nature of the questions and the manner in which they were put”. This allows great scope for linguistic evidence about language variation and other linguistic indicia of (un)reliability, just as linguistic evidence has come into consideration in states of Australia where the common law dictates that admissions be assessed taking into account a speaker’s age and “background” and their understanding of the police caution.

In our blogpost next week, you can read about a case, WA -v- GIBSON [2014] WASC 240, where the judges not only explicitly considered language but also drew on the expert linguistic evidence of longstanding IAFL member, Professor Diana Eades.

In the conference’s last keynote presentation, Janet Ainsworth (Seattle University) referred to the observations by Georgina Heydon with which we opened this blog, reflecting on challenges and opportunities facing Forensic Linguists. She noted that, as courts develop increasingly stringent requirements relating to the admissibility of forensic evidence, forensic linguists need to continue to develop a strong dialogue with the legal profession to explain the value of linguistics and to impress upon them the reliability of qualitative research. She echoed other presenters in underlining the need to continue combating problematic language ideologies, noting the importance of ensuring that our research reaches our target audiences. In this regard, Ainsworth stressed the importance of sharing our research in publications that lawyers and judges read, and communicating it in ways that are accessible to them: this may mean co-authoring with a “native speaker of the language” of the law! Janet accepted that this can be a challenge for linguistic researchers, but she reminded us that we are well-placed to meet the challenge. After all, communication is at the heart of our expertise!

So, while the 14^th IAFL biennial conference was an undisputed success, this final keynote created a call to arms. We scholars in this space need to continue in our efforts to communicate our research accessibly and to share it in places where it is most likely to influence positive change. For the two of us, a similar realisation led us to establish the Law and Linguistics Interdisciplinary Researchers Network earlier this year. We started the group with a foundational symposium and now run a Listserv where members can share news, events, research and questions. We hope to use the Network as a way to “LLIRN” to collaborate across disciplines, and as a platform to communicate our research beyond academia. In this way, we hope to play our own role, and facilitate others too, to use linguistics to “make the world a more just and humane place”, in the words of Janet Ainsworth.

By the way, IAFL is considering changing its name! If you find the name good/bad or have a suggestion, you can let us know below or by Twitter @lg_on_the_move, or let them know @_IAFL.

References

Abstracts of all conference presentations are available here.
Eades, D. (2012). The social consequences of language ideologies in courtroom cross-examination. Language in Society, 41(4), 471-497.
Eades, D. (2015). Guidelines for communicating rights to non-natives speakers of English. Language on the Move.
Heydon, G. (2019). Researching Forensic Linguistics: Approaches and Applications. London: Routledge.
Smith-Khan, L. (2017). Are we all different in the same way? Language on the Move.

Manus Hospital often treats refugees (Image credit: ABC News, Natalie Whiting)

A growing body of literature across multiple disciplines attests to the importance of credibility in the bureaucratic processes for assessing refugee claims. This includes in my own research, exploring the experiences asylum seekers have in these processes, the published reasons of decision-makers and the guidelines aimed at managing their assessments.

However, this focus on whether we should believe people who seek asylum is also popular in media reporting and political discourse. For instance, Australian Home Affairs Minister Peter Dutton recently commented that some refugees on Nauru who had fallen pregnant as a result of rape were “trying it on” by seeking medical transfer to Australia via new “medevac” legislation.

This comment is not exceptional but rather part of an ongoing commentary on similar cases. The 2015 “debate” involving “Abyan” (a pseudonym), a Somali refugee living in Nauru, was an earlier case that attracted heavy media coverage, and formed the basis of a case study included in my doctoral research and recently published in the Australian Review of Applied Linguistics and Language in Society.

Abyan was living in the small island nation of Nauru as part of the Australian government’s policy to exclude boat arrivals from being able to seek asylum in Australia. As part of this regime, she had been detained in a detention centre, had her refugee status claim assessed and was then relocated to open accommodation on the island. She approached medical services when she became unwell and when they discovered she was pregnant, she reported that she had been raped. After some delay, Australian authorities arranged for her to be transferred to Australia to access adequate medical assistance and potentially have a termination. After less than a week in Australia, the authorities returned her to Nauru via chartered jet, without her having had the termination, presumably to avoid legal action to prevent her removal.

The ministerial statement

These events and their repercussions were highly reported in the media. My analysis of a corpus of Australian journal articles from this period found that most reporting centred on what was presented as a “debate”, with the then Immigration Minister, Peter Dutton, and Abyan as the two main participants. Their competing versions of the events often drew on two key documents: a media release from the Minister and a handwritten note from Abyan that was circulated by Australian advocates. Whose version of events readers should believe seemed closely tied to determining who could be considered the most credible speaker.

However, the way this reporting presented these and other key actors was problematic. By presenting Abyan primarily as a speaker and decision-maker the reporting gave the impression that she was somehow an equal individual debate participant, pitted against the Immigration Minister. This was aptly demonstrated by reporting reframing Abyan’s statement as her claiming that the Immigration Minister had lied, for instance by suggesting she said that his “description of events – backed by Prime Minister Malcolm Turnbull – were false”.

I was troubled by the impression that was created by this “debate” as it appeared to ignore serious structural inequality and individual differences between the two supposed key participants. Could Abyan really have had an equal opportunity to present her side of events and be believed? This led me to more closely examine how communicative resources impact the way different social actors are able to communicate and present credible identities to their audience. In this analysis, I argued that far from being equal participants, the Immigration Minister and Abyan had unequal communicative resources on four different levels.

Abyan’s statement

First, they had different linguistic resources at their disposal to present an argument or version of reality that would be convincing and believable to their audience. I noted, for example, how the Minister’s press release used agent-free passive structures that backgrounded government or individual responsibility for Abyan’s movements to and from Nauru, thus distancing her traumatic experiences from government policy. These structures were largely replicated across the media reporting, suggesting their influence on the broader public discourse. In comparison, Abyan’s handwritten note entailed a series of reasonably basic structures sharing her experiences. English is not Abyan’s first language, and reporting suggests that her ability in English may be even more limited than the language in the note, meaning it may have been composed by somebody assisting her. This obviously limits the linguistic choices she had to engage in the “debate”.

Inextricably intertwined with their linguistic resources are the two actors’ identity resources: the way their language is heard and evaluated depends on how their audience perceives their speech and which version of events is accepted as truth. While the Immigration Minister and/or his policies may not be well liked by all Australians, he has a verifiable identity in the form of his name and history, and titles that mark him as an institutional insider: he is a Member of Parliament and Hon. (honourable). Abyan, on the other hand, is relatively anonymous: the public knows very little about her other than her age, gender and nationality. The elements of her experiences that are known do not necessarily lend support to her credibility: as both a refugee and as a woman who has experienced sexual violence, she falls into identity categories that are known to systematically attract discussion about their credibility.

The two also had obvious different material resources. The Minister’s communication was shared digitally, on an official institutional website with a stable URL, with government header, conventional font and formatting. This contrasts with Abyan’s handwritten note that appears on a page torn from a journal, dated 25^th December, and photographed sitting on a wooden table top. While the document resembles the genre of an asylum application statement, setting out her experience, this ironically may index a contested version of events, given that such applications attract credibility assessment, and its deviation from the expected norms of typed and printed forms may further harm its reception.

Finally and crucially, the difference in resources between the two speakers in most obvious when we consider the respective platform resources they have from which they can communicate. The Immigration Minister has ample opportunities to directly communicate with the broader community and media, through a number of means. A count of the larger corpus collected for this project identified at least eighteen occasions over a one-month period in which the Immigration Minister and his senior colleagues, including the Prime Minister, publicly commented on the case, including in radio and television interviews, official press statements and in Parliament.

Abyan’s platform is very different. The public have access to one handwritten note, provided to the media by Australian lawyers. For Abyan and other refugees and asylum seekers in Nauru and Manus Island (PNG) due to Australian policy, this very policy greatly limits the access they have to the Australian media and vice versa. The Government of Nauru has implemented changes to its visa regime to almost universally restrict Australian media from travelling to Nauru in recent years. The Australian Government has also legislated to limit those professionals who do have the opportunity to interact with refugees from being able to speak out publicly about their treatment, with penalties of up to two years’ imprisonment for breaches.

Behrouz Boochani received the Victorian Premier’s Literary Award for his book about his experiences in Australian offshore refugee detention (Image Credit: ABC News)

This final point perhaps most vividly demonstrates the way in which those with power to control the dominant discourse seek to preserve this control. In this case, explicit legal and policy measures are implemented to control how journalists can access information about refugees and the refugees’ own ability to speak out via the media. This restricts challenges to the government’s preferred version of events – not only in the specific case of Abyan, but also in how this and other experiences contribute to the broader ongoing discourse on refugees and refugee-related policy.

However, discourse and its creation are never static. Those who have access to social media either directly or with the assistance of language brokers present a challenge to these types of efforts to control the dominant discourse. For example, an increasing number of refugees and asylum seekers self-advocate through platforms like Twitter, such as in the recent case of Saudi refugee, Rahaf Mohammed, who successfully attracted international attention and support when she was stranded in Thailand on her way to seek asylum in Australia. For some, having access to technology has also facilitated publishing in traditional media. This is the case for Behrouz Boochani, an Iranian refugee in Papua New Guinea, who frequently comments in the media regarding refugee rights, and wrote and published a book sharing his experiences, via messages written by smartphone, and has now been awarded one of Australia’s most prestigious literary prizes.

Still, even as potential platforms change, looking closely at the full range of communicative resources of individual actors helps uncover inequalities: not everyone has access to social media, or has the specific linguistic and communicative skills needed to advocate within a particular area, to a particular audience. The rise of social-media-based self-advocacy therefore presents an opportunity for a closer examination of the ways in which communicative resources are harnessed through non-traditional platforms, whose resources are most valuable in these areas and the implications this has for challenging dominant discourses.

References

Smith-Khan, L. (2018). Contesting credibility in Australian refugee visa decision making and public discourse. (Doctor of Philosophy), Macquarie University.
Smith-Khan, L. (2016). Crucial communication: language management in Australian asylum interviews. Language on the Move
Smith-Khan, L. (2019a). Communicative resources and credibility in public discourse on refugees. Language in Society, 48(3), 403-427.
Smith-Khan, L. (2019b). Debating credibility: Refugees and rape in the media. Australian Review of Applied Linguistics, 42(1), 4-36.

Oh, the places you’ll go!

Starting out

Nearing the end of my undergraduate study, I was working on a small research essay and was having some trouble figuring out the direction it should take. It was in a unit on refugee law, which I was very interested in, but couldn’t quite decide what the essay should focus on. Then, by chance, I came across some articles that looked at communication and language-related challenges in refugee visa application processes.

And that was it: I was hooked. The process of preparing and writing that essay was so engaging that I knew I just had to stay doing this kind of thing. I was determined to become a researcher, and I even had an idea of what type of research I’d like to do.

Following the great experience I had on that essay and finishing up my law degree, I was lucky enough to have the opportunity to work on a ground-breaking research project for the next three years, with Professors Mary Crock, Ben Saul and Ron McCallum, at Sydney Law School. With these three professors, I acquired so many new skills crucial to young academics: preparing and amending a large ethics application; organizing and then actually conducting international fieldwork across three different continents; writing journal articles and book chapters; presenting at the UN; and, finally, publishing a book!

During the three years I worked on the project full time, I also managed to fit in a Master of Applied Linguistics and practical legal training to be admitted as a solicitor.

I had managed to continue pursuing my interest in refugee application processes during my Master and when I was looking into my next steps, knew I’d found my dream supervisor when I met Professor Ingrid Piller. So as I wrapped up my work at Sydney Law School and received my offer of a place and scholarship for a PhD at Macquarie University’s Linguistics Department, I felt like I had a decent chance at everything coming together okay.

Navigating hurdles

Yet, the next four years held plenty of difficulties. They began almost immediately, in the form of data collection challenges. I wanted to continue my focus on asylum interviews and therefore wanted to get a hold of audio data from immigration interviews or appeals. Staying within ethical constraints for participant recruitment this proved near impossible, even with the help of some very supportive practitioners. Effectively it meant greatly redesigning my research, more or less on the go.

I also faced other challenges in the form of recurring health-related issues that were both physically and mentally draining and also entailed sometimes frustrating experiences navigating university bureaucracy. Finally, about half-way into my candidature, I took on another (more than?) full-time role when I became a parent for the first time.

These events and issues all created potential roadblocks that challenged the way I approached my work. This has made me reflect on what made the PhD a successful and positive experience for me, despite these challenges.

The Language-on-the-Move team was behind me all the way

Support and guidance

I believe that the most important factor in surviving and thriving in the PhD was having great support networks and guidance. Professor Piller’s development of regular reading groups and other activities for her (past, present and sometimes future) PhD candidates not only creates structure and shares knowledge to help them complete their candidature successfully. It also helps establish a social network of peers who are able to offer support to each other in everything from sharing useful research and navigating bureaucracy to offering a hug and reassurance when it’s needed. I had recently graduated mentors I could look to for guidance and motivation, and in turn I could reinforce my own learning and leadership skills by assisting those junior to me.

Follow your passion, flexibly

Doing a PhD is not a small undertaking. What really helped me keep going is that I was researching in an area and regarding a topic that I am truly passionate about. I love reading, writing, thinking and talking about my topic and sociolinguistics more generally, and this keeps me motivated and engaged even when things aren’t always going the way I planned.

At the same time, the many challenges that can crop up mean that it’s important to keep an open mind and be flexible. While I was able to keep focusing on the research questions that interested me, with support and guidance, I adjusted my approach to overcome some of the initial issues I had with my data collection. In the end, this led me to do something completely new, focusing on credibility as a central issue: something which apparently had never before been done in a sociolinguistic study on asylum procedures. I was also able to expand my focus and include media and political discourse.

My parental responsibilities led to a pretty large change in my lifestyle, and being flexible about the hours and location for my work (with the support of equally flexible and open-minded supervisors and employers) meant that I could find the new best fit for my day-to-day research and writing, and remain productive and ultimately meet my deadlines.

Do what works for you

Beyond choosing where and when to work, deciding how to structure and write my thesis was influenced by what I felt would work best for me and my project. I opted to do my PhD “by publication”. This involves preparing a number of academic papers, which more or less constitute the chapters of your thesis when you put it all together at the end. I felt drawn towards this option as I had already had experience writing journal articles in my role as a research assistant. I felt comfortable and familiar with the process of submitting articles and having them reviewed. It also meant that I had smaller targets, rather than being concerned with a mammoth thesis looming at the end of three years. It was reassuring in that it created extra opportunities to seek expert feedback on my writing and research. Finally, thinking beyond the PhD, it allowed me to publish: an ever-important activity for anyone aspiring to a career in academia.  All four papers from my thesis have now been published or are about to be published – papers one and two about half-way through my candidature, and three and four were accepted just after my thesis examination, and will come out shortly.

Preparing for life beyond the PhD

My PhD was definitely a well-rounded journey. The various challenges and experiences I had have encouraged me to think of the PhD a little differently to how I did when I started. It’s quite easy to get caught up in being concerned about achievement. Yes, PhD candidature does have certain requirements that need to be fulfilled: you need to conduct research and ultimately produce a final product, usually in the form of a written thesis. But the PhD is not a big test, and as junior researchers we are not expected to know everything and be able to do it all. In fact, the PhD is about creating the opportunity for us to learn how to become researchers. The ups and downs, responding to challenges, seeking support, assisting others, reading, writing, navigating bureaucracy, all these are part of our learning. When all this works well and we successfully complete our PhD, we are still not all-knowing researchers. However, the experience will hopefully mean that we emerge better equipped to walk out into the world (whether academic or elsewhere) and navigate the challenges and opportunities that await us.

Related content

• The triumph of completing a PhD
• Why do female academics publish less than their male peers?
• Strange academic women
• Forgotten and invisible? The legal protection of refugees with disabilities
• Are we all different in the same way?
• Telling stories? Credibility in asylum interviews
• Crucial communication: language management in Australian asylum interviews
• Don’t know what “jurisdictional error” means? Some people’s future depends on it
• Discrimination by any other name: language tests and racist migration policy in Australia
• We all have a culture, we all speak a language: the Australian legal system discusses diversity

References

Crock, M., Smith-Khan, L., McCallum, R., & Saul, B. (2017). The Legal Protection of Refugees with Disabilities: Forgotten and Invisible? Cheltenham, UK and Northampton, MA: Edward Elgar.
Smith-Khan, L. (2017a). Different in the Same Way? Language, Diversity, and Refugee Credibility. International Journal of Refugee Law, 29(3), 389-416.
Smith-Khan, L. (2017b). Negotiating narratives, accessing asylum: Evaluating language policy as multi-level practice, beliefs and management. Multilingua, 36(1), 31-57.
Smith-Khan, L. (2017c). Telling stories: Credibility and the representation of social actors in Australian asylum appeals. Discourse & Society, 28(5), 512-534.
Smith-Khan, L. (2018). Contesting credibility in Australian refugee visa decision making and public discourse. (PhD), Macquarie University. Available through our PhD Hall of Fame or directly here.
Smith-Khan, L. (in press, a). Communicative resources and credibility in public discourse on refugees. Language in Society.
Smith-Khan, L. (in press, b). Debating credibility: Refugees and rape in the media. Australian Review of Applied Linguistics.

Diego Marani’s novel New Finnish Grammar (translated by Judith Landry from the Italian original, Nuova Grammatica Finlandese) has won multiple awards and has already been reviewed many times. The (English language) reviews discuss Marani’s fascination with language in both this and his other novels, mentioning his professional background as a translator and Europanto, the “mock” language he created. The novel has even been reviewed in the Australian Journal of Linguistics (Libert, 2014).

As the glowing reviews indicate, while the novel indeed discusses language, its structure, and acquisition, it does so in a poetic and engaging way. However, even more striking for me were the links between language learning and migrant identity. This really is a story about language on the move. As I read about Sampo’s emotionally charged and difficult journey to rediscover his lost language and identity, co-narrated by Friari, who reflects on his own experiences as a migrant, I began to consider it a metaphor for the migrant’s journey of building an identity and sense of belonging in a new place, all while adopting a new language. Sampo’s struggles learning Finnish and trying to find his place in a country he is supposed to come from but of which he has no memory, and his striving for authenticity as a speaker (and thus a member of the society) are beautifully portrayed throughout the novel:

My words betrayed my outsider status: my very voice gave off sounds that did not ring true, like a cracked glass. The language did not flow with ease; I had to construct each word carefully before pronouncing it, laboriously seeking the right amount of breath, the correct pressure of the lips, sounding out my palate with my tongue in search of the only point which could produce the sound I was looking for and then turning it into the right case before actually delivering it up…. It seemed impossible to me that everything should be played out within those fractions of a millimetre, that a segment of muscle, if too tense, should alter a meaning completely, that one puff of air too much, or too little, should be enough to cause me to be mistaken for an Estonian or Ingrian, or indeed break off the thread of meaning entirely.

Akseli Gallen-Kallela’s famous 1896 painting, The defense of the Sampo (Source: Wikipedia)

Reading the novel also encouraged me to learn a little bit about Finnish history and led me to consider Sampo’s individual journey as representing, or at least being similar to, Finland’s recent history. I realized that the novel involves multiple references to language (and identity) on various levels.

In Finland, Sampo’s language acquisition continues with the assistance of his new friend, Koskela, a somewhat eccentric priest. Koskela helps him learn the language by telling him about Finnish history, sharing his thoughts on geopolitics, and through the Kalevala, a collection of epic poems from Finnish mythology and folklore, which was compiled in the 19^th century after being passed down orally through songs.

The Kalevala constituted an important tool for developing and protecting a Finnish national identity against Swedish and Russian influence, as Karner (1991) argues. It was published at a time when Finland was emerging from 600 years of Swedish rule, which ended with (semi-autonomous) integration into the Russian Empire. Despite such a long period under Swedish rule, the Finnish language had largely survived, with only around 14% of the population speaking Swedish. However, Karner argues, Finland was lacking a clear national identity. The Kalevala came to form a pivotal role in the construction of this national identity in what was otherwise a void of “we are neither Swedish nor Russian”. Compiled by Elias Lönnrot, who collected the folklore from rural Finns throughout the country, and published it in 1835, the epic soon became famous throughout Europe, and regarded as constituting complete and “authentic representations of Finnish history: heroes, customs, and religion” (p. 159).

Therefore, the Kalevala forms an important parallel or analogy in New Finnish Grammar: much like Sampo who has no memory of his past, the Finnish nation relies on reconstructing a set of Finnish folktales to reclaim and reconstruct a past Finnish identity, bypassing the preceding 600 years of Swedish rule. In fact, even Sampo’s name itself comes from the Kalevala. As the priest explains to him, the Sampo was a magical and much-coveted object throughout the mythical stories. However, once again resembling Sampo’s own story, nobody is quite sure what it was.

Poster for the 1959 Russian film “Sampo” based on the Kalevala (Source: imdb)

In both cases, the Finnish language is the crucial conduit to reconstructing identity and a sense of history. Language and emerging identity are interconnected and interdependent in both the individual and national. In Finland’s case, in the 1800s, elite Finns spoke Swedish, and Finnish had been maintained through the peasant communities. The Kalevala’s fame and acceptance as an authentic artefact of Finnish history and culture created a renewed value in the Finnish language. Therefore, acquiring and using Finnish was an essential part of national identity formation (Karner, 1991, 159-160).

Likewise, for Sampo, a crucial step in recreating himself, fulfilling his yearning to uncover his past and thus learn who he is, is to learn Finnish. This is a monumental undertaking that he documents throughout the journals that form the medium through which the novel is presented. As he sits watching the priest Koskela discuss the Kalevala in a Finnish that is much too fast and complex for him to understand, he reflects:

I had grasped the bare bones of it even if much escaped me, above all those strange words, those fantastical objects whose shape the pastor outlined vainly with his hands: I had never seen anything like them. But I had been captivated by seeing the sounds forming themselves in his mouth, to be turned into words, then melt away. When I could not understand them, I listened to them like music, a fascinated witness to their fleeting life. How many words needed to bring a man to life!

Language, and the Finnish language in particular, is therefore a fundamental part of Sampo’s struggle to rediscover himself. Set against the bleak backdrop of World War II Finland, it is far from an easy exercise, and in the end – without revealing too much – not a very successful one either.

Diego Marani’s acclaimed novel is therefore much more than an essay on language learning. He seamlessly threads together different languages and identities as they operate on different scales: the individual migrant language-learning struggle, with that of national discourse creation about language and identity against the background of sweeping geopolitical change. While the novel is full of struggle, these engaging themes and the poignant, near-poetic way the story is told (even in its English translation) make reading New Finnish Grammar both a pleasurable and fulfilling undertaking.

References 

Karner, T. (1991). Ideology and nationalism: the Finnish move to independence, 1809-1918. Ethnic & Racial Studies. Vol. 14, No. 2, pp. 152-169.
Marani, D. (2011). New Finnish Grammar (trans. J. Landry). Sawtry, UK: Dedalus Books.
Libert, A.R. (2014). Book review of New Finnish Grammar. Australian Review of Linguistics. Vol. 34. No. 2, pp. 292-293.

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Colours of the alphabet

February 21 is International Mother Language Day and serves as an opportunity to discuss and promote the use of first-language medium education. The United Nations Educational, Scientific and Cultural Organization (UNESCO) estimates that up to 40% of the world’s population does not have access to education in their home language. This is the result of language policy, teacher training and resource issues and language beliefs. The minority language-speaking students behind this statistic face significant educational disadvantages that can have a lasting impact on their learning and participation into adulthood.

The 2016 documentary film, Colours of the Alphabet, presents this difficult situation from the perspectives of three young children in Lwimba, in rural Zambia. This film follows Steward, M’barak and Elizabeth as they commence grade one, cleverly depicting some of the challenges they face navigating their earliest learning experiences, in languages they do not know. The situation in this multilingual, post-colonial setting are anything but straightforward.

Directed by Alastair Cole, the film forms part of a larger research project led by four UK universities, which “aims to filmicly reveal the complexities of our multilingual world, specifically focusing on linguistic anthropological perspectives of minority languages use and education”. The film achieves this goal, presenting this Zambian case study, which subtly brings together opinions, policy and experiences around education in a multilingual environment where many of the students do not have the opportunity to learn in their home language. Avoiding the use of any explicit narration, the film follows the three young students, living in a predominately Soli-speaking area in rural Zambia, during their first two terms of grade one. It is a carefully combined collection of footage of the children travelling to and from school, in the classroom and playground, and interviews with the children’s teacher and another of the school’s teachers, and with the children’s parents and a local elder.

Cleverly reflecting its title, the film begins with an explanation that different coloured subtitles will be used to represent the different languages – orange for Soli – the local language, green for Nyanja – the main language of instruction, purple for Bemba – which is used during religious singing at one point in the film, and white for English. This provides a visual representation of the linguistic rollercoaster that Grade 1A faces during their introduction to schooling.

As explained in the interviews accompanying the in-class footage, national education policy requires classes to be taught in Nyanja. For many of the students, like Steward, who speak Soli at home, this causes major problems. Some face difficulty understanding even basic requests to sit down, or talk about what they did on the weekend. Their teacher, who comes from another region, speaks very little Soli and at various times we see her seeking assistance from her students to translate simple sentences for her students when they appear unresponsive to the questions or requests she makes in Nyanja.

As pointed out early in the film, Zambia’s dominant regional languages each represent a separate group of people, and their use is inherently political. In a bid for neutrality and unity, English was instituted as the official language. This means it is introduced from the very start of primary education. However, the incorporation of English-language teaching and the use of English as the medium for some lessons – and especially in teaching the children about good manners – only adds another layer of complexity. This creates a double linguistic barrier for many of the students and reinforces a hierarchy of languages in which English as national and global language is of ultimate value, followed by the regional language common in urban centres (in this case Nyanja), and finally, the local Soli.

The effects of these challenges on the students are often very clear and sometimes heartbreaking. Steward’s struggles over the course of the year are particularly touching – especially in one scene where he stays behind at the end of class, silently crying at his desk, his teacher unable to coax him into sharing his problems with her. However, the classroom footage and Steward’s own example makes it clear that the students’ face more than just linguistic barriers. Grade 1A comprises of at least forty children of various ages who attend school each morning (Grade 1B is the afternoon class, led by the same teacher). Various scenes show children squabbling over learning materials and some children not even having a pen or pencil to bring to class to do their work. Class attendance is patchy at best, with class dwindling to just seven students on the final day of Term 2. Interviews with Steward’s father suggest that his home life may also be a source of struggle for him.

While the choice to prioritize Nyanja and English in the classroom creates serious challenges for these young students, many acknowledge and often accept the reasons behind these choices. Teachers who do not speak Soli can obviously not use it to teach, and even those who do speak it, like another teacher interviewed in the film, may not be comfortable using it to teach concepts that they themselves learned in another language. Likewise, there is a lack of learning resources, like books, in the language. The students’ parents also speak about how important it is for their children to learn English – the official language of Zambia – and see it as fundamental to their children finding good careers and succeeding in the world. Even Elizabeth’s parents, who believe that she would learn much more efficiently in Soli, acknowledge the importance of her learning English – because “everything is written in English”.

The political and ideological reasons for favouring more powerful languages, and ultimately valuing English most highly, create a significant stumbling block. Perhaps the most poignant scene in the film is where the teacher is attempting to teach the class the Zambian national anthem. She explains a little about its background, about Zambians being proud of having struggled and being an independent nation, free from its past colonial oppressors. The teacher then starts singing “Stand and sing for Zambia, proud and free, Land of work and joy in unity…”. In English. The students stand facing their teacher, trying to copy the sounds of these words, in the official and most highly valued language of Zambia and its education system: English – the language of neutrality and unity in a country of over 70 languages, but ironically also the very same language of the country’s colonizers, the independence from whom the anthem celebrates.

While the parents and teachers acknowledge the linguistic difficulties the children face, they accept this reality and focus their energies on supporting the young students to do their best within the existing system. Yet, if we explore the beliefs, policies and influences behind this system more closely, their validity begins to fall apart. For example, research suggests that students who are introduced to English later, after having their first language as the medium of instruction in their early years of study are actually likely to do better at learning it. The inability of the teaching staff to use Soli (either because of their own linguistic background or because they did not study in this language) is arguably a result of policy rather than a mere coincidence. The absence of Soli as a language of education – including in higher education – over the course of one generation nearly guarantees its absence in the next. As UNESCO suggests, such an issue could potentially be addressed through programs emphasizing training teachers from regional areas who have the requisite languages skills.

The elder interviewed for the film shares his love for the Soli language, which he sees as having a rich tradition, and his beliefs that the language is actually growing in strength. However, the distinct domains in which these different languages have been used, along with all the other challenges dealt with in the film, mean that despite the many benefits of first language education, it may be hard for local people like him to even imagine Soli becoming the language of instruction. When the interviewer proposes the idea of Soli-medium schools, he stops to think and smiles. “Could this happen? Is it possible?” he asks. “We would love that, but can it be?” Still, once he considers this, we see his ideas quickly develop and with a twinkle in his eye he goes on to suggest that students could even go to university and get a degree in it. “It would be nice”, he says.

Colours of the Alphabet delicately presents the complexities that Steward, M’barak and Elizabeth confront in their first two terms of primary education, in a classroom where the local language, Soli, has no place. Their experiences suggest that lack of access to education in one’s own language, while a surprisingly common phenomenon on a global level, helps to create or entrench serious inequalities in our societies: at the very least, these students have to work much harder to achieve what other students learn through their first languages. This film is therefore an important one in drawing our attention to this very real and pervasive challenge, which is highlighted on International Mother Language Day.

Multilingual advice provided by the Administrate Review Tribunal

Countries in the Global North have developed increasingly sophisticated and complex processes to assess the claims of people seeking asylum. One key challenge is that asylum seekers often have little more than their story to offer up to support their claims. This means that deciding whether or not their stories are credible has become a fundamental step in the assessment process.

Yet the settings in which these decisions are made are emotionally charged and government officials and asylum seekers often have very different experiences, cultures and languages. So it is unsurprising that credibility assessment processes have attracted a lot of scrutiny, with scholars from a range of disciplines offering cautions and suggestions for improvement. Many of these revolve around issues related to cultural and linguistic diversity – communicating a story of persecution in a foreign institution is hardly straightforward. It involves transforming a complex and unique life experience into a neatly ordered refugee narrative that meets the expectations of the government department and the individual tasked with making the decision. A large body of research tells us of the many difficulties with communicating through an interpreter in such settings, or using a second or third language, or a language variety different to that spoken by the official. The official may have completely different life experiences or cultural expectations to that of the asylum seeker, which may make their story appear unrealistic or unbelievable. Officials may also look at asylum seekers’ demeanour to assess their honesty, despite the overwhelming body of research warning against the reliability of such assessments.

In Australia, the Immigration Department (currently known as the Department of Immigration and Border Protection) has recognised the challenges created by the cultural and linguistic diversity of those participating in asylum procedures and has taken steps to address these in its guidance documents. In my article, ‘Different in the same way?: Language, diversity and refugee credibility’ (Smith-Khan 2017a), I look closely at the Australian guidelines on credibility assessment in refugee appeals and consider how they incorporate diversity. I argue that while they acknowledge the need to accommodate applicants with different languages and cultures, there are some dangers arising from the discourse developed in this guidance. In fact, the language used in the guidelines frames applicants as different and largely ignores the decision maker’s own difference or subjectivity. Again and again, they remind us of the applicants’ social and cultural background. Their culture becomes an immutable feature of who they are – something which will inevitably influence their behaviour and way of thinking. While on its own, this may seem a reasonable warning, this contrasts with how the decision makers are presented. The guidelines instruct them:

What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.

The officials’ neutrality is reinforced by what they are called in the Guidelines. They are referred to as ‘members’ – i.e. institutional and societal insiders (contrasting sharply with asylum seekers who are ‘applicants’, outsiders waiting to be allowed in). Even more frequently though, they are named ‘the Tribunal’. Thus they take on the ultimate neutrality: by taking the name of the institution they represent, we are to believe that any one decision maker is no different from any other. Therefore, unlike the applicants who are tied to their culture and other social attributes, decision makers are expected to be able to attain objectivity (I discuss this in greater detail in another article (Smith-Khan 2017b. See also my blog post here).

This discourse creates difficulties in two different ways. First, because applicants are repeatedly linked to their social and cultural grouping, they are denied individual idiosyncrasies and quirks. They are expected to behave in ways that are standard to the particular groups to which they are assumed to belong. Where their actions or choices clash with the decision maker’s expectations of someone from this group, they may lose their credibility.

Second, the decision makers’ assumed ability to be objective means they are not encouraged to be self-reflexive, especially in regards to how their own background may influence how they decide what is reasonable or expected behaviour in those they are assessing.

The body in charge of processing asylum appeals in Australia, the Administrative Appeals Tribunal (AAT) (which took over from the separate Refugee Review Tribunal (RRT) in 2015), publishes a selection of its (anonymised) decisions online. From these I selected a corpus of decisions that dealt extensively with credibility. From this corpus I identified two decisions in which diversity was a key issue that arose in assessing credibility.

From my analysis, I discovered that the applicants (and their legal advisers) attempted to point to their cultural and linguistic diversity to overcome issues of inconsistency and plausibility raised by the decision makers. They used arguments pointing to sociolinguistic factors to explain inconsistencies in their descriptions of events. For example, an applicant whose claim revolved around his homosexuality explained how he felt uncomfortable sharing details of his sexual encounters in front of a female interpreter from his country of origin. And an Egyptian applicant noted how his choice of words had been affected by the lack of an interpreter when preparing a written statement, meaning he used a general term (‘arm’) instead of a more specific one (‘shoulder’).

The applicants addressed plausibility concerns in a similar way, pointing to cultural and social factors to explain why their reported actions were not implausible. For example, the homosexual applicant was questioned over his ‘failure to attempt to meet other homosexuals’ for a number of years after arriving in Australia as a student. He explained that he was new in the country, busy with study, had to work to support himself, did not speak English well and was afraid to go out at night, following a spate of attacks on Indian international students.

These types of explanations were mostly dismissed. D’hondt (2009) describes a similar situation in the Belgian criminal justice system. Culture attaches only to the minority participants, yet it is the professionals who retain the power to apply culture in their assessments. He explains:

Categorizing the defendant as a cultural other…prompts the defense attorney to invoke specialist knowledge about the defendant which is not accessible to the defendant him/herself…These attorney-initiated culturizations mobilize common-sense understandings of ‘culture’ (which lack a clearly defined legal status…), without posing a threat to the judiciary’s self-representation as ‘empty’.

In the asylum context, the decision maker is the specialist, entitled to decide what is reasonable behaviour from a person of the applicant’s background. Further, references to accommodating diversity in the Guidelines revolve around issues of communication within the appeal hearing and the applicant’s knowledge, rather than their past behaviour. Although applicants may attempt to mobilize diversity-based arguments to defend themselves, the power remains with the decision maker to determine whether or not to accept such arguments.

The way diversity is constructed in the Guidelines, and then reflected in these decisions demonstrates some of the key concerns put forward in research on intercultural communication. While policy guidelines may seek to sensitize officials to accommodate diversity, such texts may present diversity in such a way as to actually reinforce hierarchical, power asymmetrical structures. Diversity discourse may frame only certain participants as being diverse – e.g. the subjective, culturally and socially influenced applicants vs the objective, neutral decision makers. This can have the effect of ‘othering’ the minority participants and essentializing them into simple categories, while re-entrenching the ‘normal’ and ‘neutral’ status of the mainstream. Difference becomes a fixed and overwhelming attribute that attaches to society’s others and overrides their individuality. This was exemplified in the decision-making in my analysis, most especially in the assessment of the homosexual applicant’s behaviour. It is hard to imagine that a heterosexual person would be misbelieved for their ‘failure’ to date or form a relationship upon arriving in a new country. While the applicant drew on arguments about his social position, cultural and linguistic background, and financial situation, these attributes seemed to be eclipsed by his sexuality. Because this was the key element of his identity for the purpose of the credibility assessment, it seemed that his behaviour was expected to reflect this above all other aspects of who he was. It was the decision maker’s own conceptualization of reasonable behaviour for a young homosexual man against which he was measured – he was expected to actively search out a partner. The plausibility of alternative actions being rejected means that the applicant was denied the privilege of a more complex identity, as an individual with myriad experiences and motivations.

While asylum bodies have come a long way in developing assessment processes, this research demonstrates that challenges remain. Diversity may be acknowledged, but this does not mean that all persons are considered different in the same way. We need to continue to interrogate the way we discuss and present difference and reflect on the effects this has on those who have most to lose in the process.

Related content

• Laura Smith-Khan, Telling stories? Credibility in asylum interviews
• Laura Smith-Khan, Crucial communication: language management in Australian asylum interviews
• Ingrid Piller, The diversity of the other

References

D’hondt S (2009) Others on trial: The construction of cultural otherness in Belgian first instance criminal hearings. Journal of Pragmatics 41: 806-828.
Smith-Khan L (2017a) Different in the same way? Language, diversity and refugee credibility. International Journal of Refugee Law https://doi.org/10.1093/ijrl/eex038
Smith-Khan L (2017b) Telling stories: Credibility and the representation of social actors in Australian asylum appeals. Discourse & Society https://doi.org/10.1177/0957926517710989

After we completed our fieldwork, we were fortunate to obtain additional funding; first, to travel to New York to share our findings at the United Nations; and second, to bring together our findings in the first book to be published on this topic: The Legal Protection of Refugees with Disabilities has just been published.

For me personally, this project was a unique opportunity as a young researcher – I was able to gain invaluable experience designing, coordinating and carrying out fieldwork across six different countries, with a variety of people, in a variety of languages. I learned many valuable lessons which have hopefully helped me grow as a researcher and contributed to my capabilities as a PhD candidate.

But what does this project, which centres around international human rights law, have to do with language or sociolinguistics? While this research is officially within a very different field, I have still identified so many points of crossover, or ways of thinking, that have really helped each of my research fields.

Article 1 of the CRPD states:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Laura during fieldwork in Nakivale Refugee Settlement, Uganda, 2013

Instead of placing the focus on the individual, the CRPD, both in Article 1 and throughout the remainder of its provisions, places the onus on societies. It forces us to think about the way our physical, social and legal structures differentially impact the various individuals who come into contact with them. For me, this critical reflection is also key to my growth as a sociolinguistics researcher.

For example, it may be easy to blame migrants for the various challenges they face: not being able to get a high-paying job, or having difficulty at school. But is this really about their individual ‘flaws’, or not trying hard enough, or does it have more to do with the legal, social, political and linguistic structures in our societies, which impact us all differently, advantaging some more than others?

In Chapter 6 of our book, for example, we discuss how a lack of work rights in many displacement settings greatly increased the risk of acquiring a disability, as refugees may be forced into exploitative and unregulated work.

Aside from legal status issues, language barriers played a significant role in access to a range of services – including gaining the knowledge that services existed in the first place. A comparison between the Syrian refugee populations in Turkey and Jordan provides an apt example: most Syrians in Jordan were able to communicate directly with locals, and even those who used Sign Language were more likely to find someone with whom they could communicate – Jordanian and Syrian Sign Language are mutually intelligible, and those literate in Arabic could also use written text to communicate. This obviously facilitated service provision, and access to work and education. By contrast, in Turkey, despite the government making very clear and concerted efforts to assist the Syrians there, language barriers created significant challenges in every aspect of life and access to services.

A refugee-run business in Za’atari Refugee Camp, Jordan, 2014

In places like Malaysia and Indonesia, although there were local disability rights organisations doing important work to advocate for greater inclusion, the invisibility of refugees living in their community, along with language barriers, meant that refugees largely missed out on benefiting from these groups. When we interviewed participants from Myanmar, the interpreters (themselves refugees) explained that they could not even translate ‘human rights’ as it was a completely unfamiliar concept – and we soon gave up asking. This contrasted with the situation in Uganda, where many of the refugees we met with had participated in programmes aimed at improving their rights, and when we spoke with them they were well versed in the ‘language’ of the CRPD and the concepts and rights it promotes.

Prolonged displacement situations are pertinent examples of how these types of linguistic barriers can play out quite differently over time depending on the particular structures in place in the host country. For example, in Malaysia, where young refugees have no access to the education system, their development of literacy and language skills is limited to what is offered by refugee volunteers. These classes are usually conducted in the language of the refugee group, and a range of barriers exist for children with disabilities, given the location of these ‘schools’ – in high-rise apartments, up narrow staircases – and the types of facilities they have – volunteer teachers with limited training, no assistance for those who need extra help, limited access to basic assistive technology like glasses or hearing aids. This understandably limits integration within the host society, and in any future country of resettlement, and the likelihood of being able to participate in the workforce in the future.

In contrast, in Uganda, where refugees are officially welcomed and permitted to settle permanently in the country, refugee children have the right to access local schools, and, in the case of a number of children who were deaf or hard of hearing who we met in camps in the south of the country, they may even be able to access specialised education, where needed.

In each setting, age-based policies that limited specific types of assistance to children (under 18 years) meant that those who had had disruptions due to their experiences as refugees or living through conflict situations may simply age out of opportunities that locals would have been able to access as soon as the need arose, following a ‘normal’ timeline.

It is unsurprising that these different levels of access would lead to different opportunities to participate in the host society, in both the short and long term, and very different experiences of what it means to have a disability. These experiences have reinforced for me the fundamental importance for social justice that we continue to question the way social, political and legal structures – and the beliefs and attitudes that underlie them – can impact on participation for the diverse individuals who make up our communities.

Reference

Crock, Mary, Laura Smith-Khan, Ron McCallum, and Ben Saul. 2017. The Legal Protection of Refugees with Disabilities: Forgotten and Invisible? Cheltenham, UK and Northampton, MA: Edward Elgar. Access the eBook and read the first chapter for free.

Images copyright of Mary Crock/University of Sydney.