A practical guide to preparing statements for Asylum Seekers for Protection Visa applications

Edition 1

A publication of the Asylum Seeker Resource Centre Inc. ã

Australia’s largest asylum seeker aid, health and advocacy organization

Written by: Kon Karapanagiotidis

Solicitor/Social Worker/Registered Migration Agent

September 2003

Disclaimer:

Immigration law constantly changes and you should check the accuracy of this information by always consulting the Migration Act and Migration Regulations before advising clients. Please note you must be a registered migration agent to provide immigration advice. The Asylum Seeker Resource Centre does not accept any liability to any person for the information or advice (or the use of such information or advice) which is provided in this publication.

1. SETTING THE SCENE TO DO A STATEMENT

The physical setting that you prepare a statement in is important. Remember many asylum seekers have experiences of being interrogated and tortured in small, cold, windowless rooms. Taking a person’s statement can trigger off these memories.

Here are some starting tips for setting the scene:

· Pick a room to see the person in that is quiet and confidential

• Make sure you pick a room that is well – lit and has a window
• Pick a space where you will not be constantly interripted
• Make sure the room is comfortable, given it will be many hours of work make sure they have a comfortable chair, a glass of water and tissues handy

2. BEING AWARE AND SENSITIVE TO THE NEEDS OF ASYLUM

SEEKERS

When preparing a statutory declaration for an asylum seeker be mindful of the following:

· Retelling their story is a traumatic and painful experience. It is an experience they do not want to go through and only do so out of the hope that it will assist them in gaining their refugee status.

· It is vital that the person feels supported, believed and listened to when they retell their story.

· It is important that people have explained to them that what they tell you is confidential

· It is essential that you explain to the person before you begin the reason you need to ask these questions

· Explain that you will need to ask a lot of questions and that you do not mean for it to be an interrogation.

· Explain that you have to ask a lot of questions to enable you to prepare the best possible statement for them and to ensure that their story is properly told.

· Be aware that asylum seekers will at times seek to minimise their persecution as a coping mechanism. Gently encourage the full description of what has occurred to them.

· Be aware that at times asylum seekers can become distressed at retelling their story and may experience a range of symptoms from panic attacks, flashbacks to feelings of anxiety and depression,

· If a person is not disclosing fully their past experiences, understand that it is not because they are trying to be non co – operative. Rather they may for example, not feel safe discussing their past or feel ashamed about what has happened to them or have repressed the memory.

· The memory of a person may be poor and fragmented due to trying to repress the trauma they have been through. Do not guess dates.

· If the person becomes distressed take a break and start again only if the person feels emotionally able to, if you need to and time permits make another time to finish the statement.

· Encourage disclosure through the use of open – ended questions

· Explain to the person that it is essential that they leave no experience of persecution out of their statement or any fears they have about returning to their country. Advise them that it is important to state all their claims in their first statement because if they raise new claims later in the refugee legal process they may not be believed or have their claims accepted,

· Gently tell them how it is important that they tell the truth and that there is no need for them to exaggerate their claims or make any false claims. Explain what the consequences will be if they make up any claims. Understand that very few asylum seekers ever exaggerate claims and those who do often have been misadvised by well meaning friends or family about what they should say.

· If a person is avoiding eye contact it does not mean that they are trying to be difficult or are disinterested it is most likely either that they feel anxious or that it is culturally inappropriate

· If they cannot clearly speak and understand English fluently then get an accredited interpreter. Do not use family or friends of the person as interpreters.

· When using an interpreter make sure that you are using a person that the person is comfortable with. In particular that the interpreter is not from an ethnic background/group that the person feels unsafe or uncomfortable around.

· Check to ensure that there is not an issue regarding seeing a male or female lawyer/migration agent, culturally it may not be appropriate to see for example a man for women in some cultures.

3. PREPARING THE STATEMENT

The fundamentals

Statutory declarations should be:

• Double spaced

• Signed on every additional page at the bottom by the asylum seeker and person witnessing it (who needs to someone who can witness a stat dec. eg. Lawyer, Justice of the Peace)

• Be written in plain English and in the persons own words

• Follow a chronological order in terms of dates and events

· Each paragraph should be numbered

· Be grammatically correct and have no spelling mistakes

The legal structure

a) Statutory declarations start always with:

1. I [name] of [address] in the State of [ ], [occupation] do solemnly

and sincerely declare the following:

b) Statutory declarations always finish with:

And I make this solemn declaration by virtue of the Statutory Declarations Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

Declared at [ suburb ] )

On the [ ] day of )

[month] [ year ] ) ………(signature)……………………………………..

Asylum seekers name (printed)

Before me: ………(signature)……………………………………

(name of approved person witnessing it)

(title of person)

eg. A natural person who is a legal practitioner within the meaning of the

Legal Practice Act 1996(if it is a solicitor witnessing stat dec)

4. CHECKLIST IN WRITING A STATEMENT

The following is a checklist of questions to ask yourself when preparing an asylum seekers statement. It is not an exhaustive list but does provide a good foundation about which to prepare statements.

Have you explained to your client what they have to show to establish they are a refugee?

It is important that your client understands what the test is for deciding whether they are a refugee. Explain in clear simple terms the refugee convention, what persecution means and what they need to demonstrate to have a chance of being accepted as a refugee.

Without this context it is very difficult for asylum seekers to know what they should mention to you, what is relevant and what experiences they should focus on.

Have you identified and described every instance of persecution that the person has experienced or fears they will experience? (Including anyone they know who has experienced persecution)

The original claims for refugee status that accompany the Protection Visa application are the most important. It is what is originally stated in their 1^st statement that will be given the most weight by DIMIA. Whilst one can always make supplementary statements whilst the application is being considered by DIMIA or the RRT, it is the 1^st statement where you need to do all you can to get a complete set of claims for refugee status.

It is not an uncommon experience for refugee lawyers to find themselves having clients disclose further claims after they have already lodged the Protection Visa application and sometimes even after it has already reached the Refugee Review Tribunal.

The big problem when this happens is that DIMIA or the RRT will often make a negative inference regarding the credibility of the person and will often allege that they are fabricating the new claims. They will not give much weight to all the valid reasons why this happens such as trauma and fear.

What may cause late or non - disclosure of important information?

· The traumatized mental state of the person

• The person feels ashamed about what has happened to them
• They do not know that it is relevant to their claim
• They fear that what they say will reach their country and their remaining family and friends will be punished by the authorities
• They do not think they need to mention every experience of persecution
• They do not feel safe and able to trust their legal representative
• They fear they will not be believed
• They have only just remembered the experience

How to facilitate full disclosure:

· Explain why it is important that every experience is disclosed

• Let them know that there is nothing for them to feel ashamed about and that you believe them
• Ask the person to tell you about every experience of threats, harm and mistreatment that they and anyone they know has experienced (including family and friends) no matter how insignificant they think it is.
• Let them know that what they say remains confidential and the authorities in their country will not receive this information

The importance of documenting persecution of people known to the person in their statement

It is vital that you check with your client whether they have had any other friends or family or colleagues experience persecution or fear persecution of a refugee convention reason. It is highly relevant for example of your client has a brother who has been found to be a refugee in another country based on similar claims or that their father was executed because of their political opinions or that other members of the political party they were involved in have disappeared.

The relevance of this goes not only to the accepted refugee convention ground of imputed political opinion, that is what a person may be assumed to politically believe because of their connection to others but also helps establish ‘profile’ that would make the person of adverse interest to the authorities.

Ask open – ended questions

Here are a few examples of the types of questions that you could ask in facilitating disclosure in preparing a statutory declaration:

· I am aware that your country is known for mistreating it’s people and for human rights abuses, have you had any such experiences yourself?

· Could you tell me what you are afraid will happen if you return to your country?

· Who do you think will harm you if you return to your country?

· When did your problems in your country begin?

· What do you think will happen to you if you return to your country?

Have you written the statement in the person’s own words?

It is important that you do not write a person’s statement in a legalistic tone and in your words. The statement is the person’s experiences and claims in their own words. Where it appears that the statement has not been written in the words of the person DIMIA may have doubts about the credibility of the story. Also remember that the person is going to be questioned on their statement so they need to be able to explain themselves in a manner consistent with their original statement.

Has the person ever made a previous statement regarding their refugee claim?

Always check to make sure that your client has not made any previous statements regarding their refugee claims. They may have especially if you are seeing them for the first time and they already at the RRT stage and definitely if they have been on a TPV and are now applying for a PV or are responding to a 30 month DIMIA letter.

If they have made a previous statement, check the following:

· Make sure you have a copy of their original statutory declaration before you start, as you need to know what has been previously claimed.

· If the person has previously made a statutory declaration have you made sure that their new statement does not contradict their previous statement, eg. no different dates or claims?

· If there are additional claims, have you properly explained why they were not previously stated? Eg. Change of country circumstances

Making new statements for people on Temporary Protection Visa’s

· Always make sure that their new statement is consistent with their previous claims

· If their original claims remain relevant, you do not need to restate them, but you should make reference to the original statement, by for example saying ‘my original statement remains true and relevant of my past claims of persecution and relevant to my current claims’.

· If the 7 – day rule applies make sure you address this in the statement

· The 7 – day rule applies to anyone who has applied for a Protection Visa after the 27^th of September 2001? (current proposed changes to the Migration Regulations may left this bar, check the current law at the time you do the statement)

· If the 7 – day rule applies have you explained why the person did not seek safe refuge in those countries that they remained in for more than 7 days?

· If there was a UNHCR office in the country of transit did they seek their assistance? If not why? Explain in statement.

· If they make any new claims you must properly explain why these claims were not raised originally

· Make sure that your client does not simply rely on their original statement, in particular asylum seekers from Afghanistan and Iraq cannot just rely on claims of persecution from previous regimes, eg. Taliban and Saddam Hussein. Whilst the remnants of these regimes remain and are relevant to new statements, you need to identify any other possible new risks of persecution faced.

Have you demonstrated the refugee nexus in the statement?

It is important that by reading the statement one can understand how the asylum seeker has been persecuted or is at risk of persecution of a refugee convention reason (race, religion, nationality, social group or political opinion).

Ask yourself:

· Have you identified the refugee convention ground(s) that the person fits within (i.e: race, religion, nationality, social group, political opinion)?

· Has your client provided an explanation that shows a nexus between their claims and the refugee convention?

· Have you explained why the person is still at risk of persecution if they return to their country?

· Have you explained why their government will not protect them?

· Have you explained why the person’s believes they would still be of adverse interest to the authorities?

· Have you explained who will persecute them/why they will persecute them/how they will persecute them and when this will happen? Try to be as specific and detailed as possible.

· Have you explained why the person cannot safely relocate to another part of their country of origin?

· Have you explained why they cannot enter another country to reside (if applicable)?

· Have you checked whether they have since leaving their country received any information that they are in danger if they return?

Have you addressed any possible issues of identity?

Identity may be an issue concerning your client. This will be the case in particular with clients who have no travel documents or forms of identification or where they cannot speak their own language. For example it is not uncommon for Kurdish asylum seekers from Turkey and Oromo people from Ethiopia to be unable to speak their language, this being a byproduct of political and cultural oppression.

To help establish identity you should always provide a background about the person that includes such information as where they were born, their family background, their religion and anything else that may be relevant about their family background.

Ask yourself

· Have you provided a brief background about the person (eg. where they were born, the make up of their family, their religion)?

· Have you provided sufficient information to demonstrate the identity of the person (eg. their knowledge of their country of origin/religion/culture)

Where identity may be a issue there are many simple ways that you can help establish identity, for example:

· Ask the person to describe the place they have come from, it’s geography, mountains, rivers, significant buildings, ethnic make up

· If they cannot speak their own language, explain why in the statement and ask them to describe what they do know about their culture, eg. talk about their particular cultures religious events, dances, food, traditions and customs, leaders and dress.

Have you addressed any issues of credibility?

Credibility is a key part of the refugee determination process, how credible your client sounds plays an important role in the outcome of their refugee application. If the case is now at the Refugee Review Tribunal stage you will know what the credibility issues are as they will have been stated in the decision. In which case you need to address them in your client’s statement as best as possible.

If however you are just lodging an application for a Protection Visa you will not know what the possible credibility issues may be unless you identify them yourself.

· When looking at your clients claims put yourself in the position of the DIMIA officer and ask yourself does your client’s claims raising any concerns about credibility? Is their story plausible? Is their story consistent? Do any dates contradict themselves? Is their story consistent with what is known about their country?

· If you feel that your client may be exaggerating what they are claiming, gently challenge them on it and reinforce the importance of them telling the truth. You do your client no favors by ignoring claims that they make which appear implausible or untrue.

· If there are clear credibility concerns preempt them by addressing them in your client’s statement.

· If you identify possible credibility concerns only address them in the statement if they are obvious, you do not want to raise possible credibility concerns that may not exist.