No One to Bear Witness: Country Information and LGBTQ Asylum Seekers.

Author:McDonald-Norman, Douglas
 
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Abstract

This article examines the use of country information in determining claims for refugee status based on sexual orientation or gender identity. Limitations to country information remove diverse individual experiences from the "historical record" and obstruct marginalized individuals' ability to prove their claims for protection. Discrimination and marginalization may be echoed and perpetuated within country information itself which privileges certain voices over others, MD (same-sex-oriented males: risk) India cg [2014], the United Kingdom's current "country guidance" decision on claims for protection by same-sex oriented men from India, is examined in light of these themes.

Resume

Cet article etudie l'utilisation de renseignements sur le pays d'origine afin de determiner les demandes de statut de refugie en lien avec l'orientation sexuelle et l'identite de genre. Les limites en matiere de renseignements sur le pays d'origine effacent du registre historique diverses experiences individuelles et font obstruction a la capacite qu'ont des personnes marginalisees de justifier leur demande de protection. La discrimination et la marginalisation peuvent etre repetees et prorogees par l'information meme delivree par les pays, qui privilegie certaines voix sur d'autres. A la lumiere de ces themes de reflexion est etudie le document du Upper Tribunal (Royaume-Uni) md (same-sex oriented males: risk) India cg [2014], qui etablit les lignes directrices actuelles de pays en matiere de decision concernant les demandes de protection pour les hommes homosexuels provenant d'Inde.

Introduction

Country information is an essential part of refugee status determination (RSD). Information about countries from which asylum seekers have fled ("countries of origin") can help to prove that claimed experiences of past persecution occurred and that asylum seekers would be at risk of harm in future. (2) However, country information must not be used uncritically. It can never provide an objective, exhaustive guide to events in a particular country, as if recounted by an omniscient narrator of events. All sources of country information are selective, edited accounts of particular circumstances, of varying focus and breadth. These accounts must be interpreted rather than merely taken at face value, having due regard to their biases, priorities, and intended usage.

The potential of country information to mislead, and the corresponding need for informed and close analysis, is particularly acute in assessing the claims of asylum seekers whose claims for protection are based on their real or perceived sexual orientation or gender identity (referred to in short as "LGBTQ asylum seekers"). Sexuality is fluid, intensely personal, and potentially experienced in highly variable ways from person to person and within each individuals own lifetime. (3) Country information can provide only limited corroboration for how individual sexual acts or identities will be experienced, valued, or treated, or for the potentially significant distinctions between sexual minority groups (and how such groups are perceived by agents of persecution) in countries of origin.

This article examines the use of country information in assessing claims for protection based on sexual orientation or gender identity. In particular, this article discusses the extent to which country information may be distorted by "privilege" and insufficient regard to diverse, individual, and intersectional experiences of sexuality and gender, with the United Kingdom Upper Tribunals "country guidance" decision in MD (same-sex-oriented males: risk) India cg [2014] (4) ("MD") analyzed as a case study. This article draws upon the authors experiences as a former researcher and solicitor with an Australian law firm with a significant practice in refugee law.

Country Information: History and Controversies

"Country information" is information about other nations used in RSD. It is not only used to examine conditions in countries of origin; it may extend, for example, to information about countries through which asylum seekers have travelled in order to reach the jurisdiction in which their claims for protection are assessed. Country information can include very general information, like information about the history, geography, or demographics of a particular nation or a particular region. It can also be very specific, like information about particular locations, events, or individuals. It can arise from any number of sources. Although reports from governments and NGOS have traditionally been used in RSD, increasingly widespread access to the Internet and social media has expanded the range of materials used to corroborate claims about country conditions (and claims for asylum in general), (5) including blog posts and information provided via social media. It can be produced for a variety of purposes: to chronicle conditions in a particular country, to draw attention to particular situations or particular types of abuse, or to support claims for asylum, whether claims by particular groups from particular countries or individual claims.

The weight afforded to particular sources of country information will vary from source to source. Reports by well-established international NGOS like Human Rights Watch or Amnesty International, or the United States Department of State's Country Reports on Human Rights Practices, (6) may be afforded greater weight in decision-making because of the stature of the organizations that have produced them, (7) even over specialist groups looking into particular types of abuse or speaking out on behalf of particular groups. (8) This is problematic. This weighting reinforces a professionalized, expertdriven, and "technocratic" model of fact-finding in human rights advocacy in which elite (and/or Western) voices, concerns, and methods are privileged. (9)

Country information is essential in RSD because it provides necessary context for asylum seekers' claims to fear persecution if removed from the countries in which they have sought asylum. Country information cannot, however, resolve each and every case on its own; "individualized" assessment is key to the appropriate functioning of RSD. (10) In particular, the "credibility" of asylum seekers' claims about why they fear harm in their countries of origin must be examined; decision-makers must determine whether asylum seekers are telling the truth about who they are and why they are seeking asylum. Furthermore, country information cannot provide an exhaustive, comprehensive, and objective account of every instance of persecution in a particular nation, especially where such persecution is merely feared or prospective.

Like any other form of fact-finding or research in human rights advocacy, country information will inevitably be shaped by "politics, culture, judgment, power, and many other dimensions," rather than a mere account of the "facts." (11) Country information may exaggerate the scale or extent of particular abuses, in order to draw attention to a cause or puncture public complacency. Alternatively, NGOS operating in countries of origin may downplay some abuses, or present them in more careful and measured language, so as to emphasize positive trends, maintain good relationships with local governments, or cater to the prejudices of intended audiences (within the country of origin or elsewhere). These practices, even where they serve a political purpose or make sense in a context of partial improvement, may present an inadvertently rosy picture of conditions (and endanger claims for asylum) when viewed outside that context. A portrait of improving conditions may be interpreted as a portrait of good conditions, when nothing of the sort was intended.

Country information may also be produced by governments, such as the Immigration and Refugee Board of Canada (IRBC)'s National Documentation Packages (12) and research reports collating information in response to specific inquiries, (13) or the Australian Department of Foreign Affairs and Trade (DFAT)'s reports from overseas embassies. (14) This information may either replicate factors that distort NGO reporting (for example, where, as in IRBC reports, official reports rely upon collation of material produced in unofficial sources) or prove subject to governments' desire to present other nations in a positive or negative light, depending on their alliances and political interests. (15) Hence, both the collation and the production of information by countries of asylum may be problematic. Even government decisions on which forms of country information to prioritize, and which forms to downplay, may be subject to these same pressures. For example, Australia's decision to dictate that RSD officials must take account of DFAT's country information assessments, with no equivalent dictate to consider any other form of country information, was understood and reported as an effort to "toughen up the asylum seeker claims process." (16)

Calls for caution in how country information is employed and interpreted are nothing new. (17) Goodwin-Gill and McAdam, for example, have observed that although documentary evidence, including country information, "has a seductive air, often seeming sufficient to decide the case," country information that is not related personally to the applicant "often gives only a general impression, more or less detailed, of what is going on." (18) This "seductive air" derives from the seeming certainty and clarity of country information, as compared to the perceived subjectivity or unreliability of witness testimony. (19) Like other asserted "facts" in human rights advocacy, this appeal of country information derives from "the residual appeal of the notion that there are things that are 'true,' evident,' or concrete' when all else appears fickle, contestable and subjective." (20) Where it is frequently perceived that "refugee claimants tell lies'...

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