Conducting Refugee Status Determination

Transcription

1 Conducting Refugee Status Determination Hong Kong Academy of Law Training Program on CAT Claims and Refugee Law December 2009 David Welin UNHCR Regional Protection Hub for the Asia-Pacific Refugees and UNHCR UNHCR was founded by the UN General Assembly in 1950 to: provide international protection to refugees seek durable solutions for refugees UNHCR s work is humanitarian and social and of an entirely non-political character Today, 32 million persons are of concern to UNHCR. About one third are refugees. Also mandated with asylum-seekers, returnees, internally displaced (IDPs) and stateless persons Offices in 117 countries. Annually takes around individual decisions on refugee status. 1

2 RSD framework Examination and analysis of the application consisting of: A personal interview, with a gender approach and with an interpreter Country of origin information (COI) Documents submitted by applicant Information from international organizations, e.g. UNHCR Evidence - Particular challenges Definitions are forward looking Evidence and COI often conflicting or absent A multitude of countries of origin, with applicants from different cultures and situations Possibly traumatized applicant 2

3 The Interview The interview is the main source of information. Its purpose is to: Provide a picture of events that is as complete and objective as possible Clarify incomplete and contradictory evidence by pointing it out to the applicant so he/she has an opportunity to provide additional information or explanation Barriers to communication Physical environment Privacy, time, comfort Socio-cultural Language, education, cultural differences, need for interpreters Psychological PTSD or other psychiatric disorder, intellectual functioning, fatigue, stress, brain injury 3

4 The Interview (cont.) Interviewers needs to be aware of: His/her own background Cultural perspectives Other attitudes that may influence the way he/she perceives facts presented by the applicant The Interview (cont.) The key to a successful interview is to: Establish trust and effective communication with the applicant Maintain cultural awareness, patience and respect for individual experiences Be prepared by: Reviewing applicant s claim and file thoroughly to understand the facts and identify supporting documents Being knowledgeable on Country of Origin Information 4

5 The Interview (cont.) Practical tips: Use both open and closed questions, starting with mostly open questions Avoid leading questions Ask questions in a chronological order Keep a clear and detailed transcript, recording precise words and avoid summarising the applicant s statements Make notes on relevant observations regarding behaviour and demeanour Brief interpreter beforehand (confidentiality, impartiality and that everything interviewer and applicant says must be interpreted) Match detail to purpose - Know when enough is enough and do not ask what you do not need to know What is the evidence of a credible claim? Memory of the events Consistency Demeanor Plausible facts Coherency Cooperation 5

6 Memory Inconsistencies Normal memory lapses Memory impairment due to PTSD Memory impairment due to brain injury or substance abuse Dissociation during event or during interview Fear of consequences to self or others Lack of trust Stigma or shame associated with victimization Cultural prohibitions against disclosure Deception What is Trauma? An event that involves actual or threatened death or serious injury, or a threat to self or others physical well-being (American Psychiatric Association, 1994) accompanied by feelings of fear, terror, helplessness beyond experience or imagination of most people beyond control of the individual 6

7 Impact of Trauma Increased emotional reactivity Decreased ability to tolerate strong emotions Anxiety Irritability/anger Depression Guilt/shame Dissociation or numbing, i.e. a disruption in the integration of consciousness, self-perception, memory, and actions (Istanbul Protocol, 1999) Other people may be viewed with suspicion and mistrust The world may be viewed as unpredictable and unsafe Key Messages Traumatic events can produce lasting changes in how a person thinks, feels, and acts Fluctuate between emotional reactivity and emotional blunting Changed views of self, others, and the world Adoption of maladaptive coping behaviors Memory is fallible, especially when it is complicated by trauma, brain injury, and/or substance abuse Traumatic memories differ from other memories in the quality of recall Inconsistencies are to be expected and are unrelated to deception 7

8 Traumatic Memory and Credibility Memory for traumatic events varies significantly Difficult to detect deception on the basis of quality of memory Discrepancies and memory gaps are noninformative Recognize trauma What to do? Apply evidence-based knowledge: Understand different motivations for lying Actively listen and actively observe simultaneously Look for changes from baseline Be aware of barriers to communication and attempt to remove them Be aware of own emotional and psychological state 8

9 What to do? (cont.) Unlearn bad habits: Over reliance on gut instinct Over focus on verbal as opposed to non verbal behavior Over focus on lies as opposed to truth Make sure interview conditions do not retraumatize victims Power imbalance Physical environment Gender of interviewer and interpreter Be physically and emotionally prepared Country of Origin Information The testimony of the applicant is the central evidence in the RSD procedure. Country of origin information can only supplement, not replace, a credible statement of facts by the applicant. There is no requirement to refer to documentary/third party evidence: where the testimony of an applicant is consistent and credible and does not contradict generally known facts about a country of origin. 9

10 Sources of COI United Nations Other international organizations Regional organizations Governments International and national NGOs Academic organizations or think tanks News organizations (international, national and local) See: Refworld Relevance of COI Any evidence that makes the existence of a fact related to the matter at hand more or less probable COI is relevant if it allows us to revise the probability of some issue being true upwards or downwards, in support or against 10

11 Limitations of COI Evidence never or rarely conclusively establishes that some event or events did or did not occur it merely allows for inference to be drawn It is not possible to determine from most COI, whether a particular truth has been arrived at only the probability of it Information can become outdated quickly, particularly in fast changing situations in certain countries of origin Round-tripping Secondary sources begin to cite each other Secondary sources all cite one source, giving the impression of corroboration when none, in fact, exists Certain COI sources are most appropriate for a given issue Measuring Objectivity Bias Who produced the information and for what purposes? Is the information producer independent and impartial or represents some vested interests? Has a rigorous scientific (evidence based) methodology been applied in producing and vetting COI and whether the process has been transparent? Is the information produced couched in an objective and not overly judgmental tone? 11

12 COI in sum COI evidence is always incomplete, we will never have all of it COI is commonly inconclusive it could support or oppose a claim COI is often ambiguous COI evidence comes to us from sources that represent every gradation of credibility short of perfection 12