Legal Speech Acts

The philosophy of language developed by John Austin introduced a theory of speech acts, which provided an account of language and its effects.^{Footnote 7} Austin concluded that all linguistic expressions are performatives, because, by making an utterance, a speaker performs a social act.^{Footnote 8} His theory of speech acts had a significant impact, because it facilitated the disruption of understandings of language as simply representational and ultimately contributed to the post-structuralist, anti-essentialist claim for the world-constituting power of language.

Contemporary understandings of subjectivity have drawn on speech act theory to posit the formation of identity as a process of interpellation that comes about through the address of the other.^{Footnote 9}

Speech act theory has been taken up in various theoretical fields and for different purposes; however, it has not attracted the attention within law that it deserves.^{Footnote 10} After all, the performative function of speech has obvious relevance to legal events, such as the delivery of a verdict or a sentence. Austin himself recognized this point—as well as the potential of speech act theory as a framework for a critique of legal positivism:

It is not only legal decisions that function as speech acts; other legal practices and events also fit this rhetorical form. Indeed, as Marianne Constable points out, legal processes and procedures are saturated with speech acts. She argues that “legal sources and actors complain, rebut, instruct, appeal, threaten, testify, swear, object, overrule, enact, appoint, find, dismiss, amend, approve, deny, declare, agree, promise, qualify, hold, sentence,” that legal history “reads legal texts for what they do and how they do it.”^{Footnote 12} Indeed, Constable argues that because law claims authority through speech, it is the claiming in legal speech acts that “binds us to issues of justice.”^{Footnote 13}

Given the relevance of speech act theory to law, how might this rhetorical form functions in the context of refugee law? Applying Austin’s formulation, a conventional procedure is required that includes the expression of legally meaningful terminology by authorized people in the appropriate manner; this procedure must be executed correctly and completely and, where necessary, sincerely; and the person must subsequently act accordingly. Based on the 1951 Convention Relating to the Status of Refugees,^{Footnote 14} the Handbook of the United Nations High Commissioner for Refugees (UNHCR) proposes a refugee recognition procedure for member states along these lines.^{Footnote 15} In particular, if a decision maker is satisfied that an applicant meets the relevant criteria, the applicant’s refugee status is recognized and she is declared to be a refugee, as a result of which she is granted rights-bearing entitlements. Using Austin’s formulation, once the conditions are met in the context, or “total speech situation,” the illocutionary force of the declaration that performs the act of recognizing the refugee can take place. As such, it is not the truth of the declaration (“We recognize you as a refugee”), nor even perhaps the truth of the applicant’s status as a refugee (“You are a refugee”), but the illocutionary force of the act of recognition of the refugee that has performative effect in law. As the UNHCR Handbook states:

The legal procedures therefore have a declarative rather than constitutive function, which takes the rhetorical form: “If we believe that you meet the definition, we will recognize you as having rights.” It is actually not necessary for the asylum seeker to be telling the truth, nor indeed that she actually be a refugee, according to the definition. What is necessary is that the procedure is executed in such a way that she is recognized as, and named, a refugee.

Judith Butler clearly recognizes the value of speech acts to legal constructions of subjectivity when she makes inroads into debates about legal and political discourse and, notably, in her interventions around hate speech.^{Footnote 17} In Butler’s formulation, it is not only the authoritative status conferred on the speaker—whether a judicial officer, legal advocate, or witness—but the repetition of the procedures and conventions, the reproduction of Bourdieu’s legal habitus,^{Footnote 18} and the citation of prior practices in the form of precedent, which endows law with its force. Those who come before the law—defendants, litigants, applicants, and witnesses—must also engage in this reiterative performative practice.

In the context of refugee law, Butler’s emphasis on iterability and repetition is, as Matthew Zagor points out, “virtually tailor-made”^{Footnote 19} for the intensity of self-narration demanded of the refugee:

Butler points to the potential for infelicitous performance—such as misrecognition between the law and subject, refusal of the law by the subject, and even parodic performance—which calls into question law’s legitimacy. In this way, the performative may result in excess of the law’s intentions and, importantly, potential for slippage in signification.^{Footnote 21} Indeed, contrary to dominant narratives that position refugees as victims, Zagor argues that there is evidence that some refugees are able to actively negotiate the regulatory framework strategically to perform the requisite refugee-ness.^{Footnote 22} In this way, a refugee may be said to engage in a form of generative performance, exploiting the inevitable potential for slippage in signification, and, importantly, creating the conditions under which subsequent performative repetition further engenders forms of subjectivity potentially recognizable by the law.

Performing Refugee-ness

Gregor Nöll describes the process of refugee status decision making as one that may involve an adjudicator being asked “to give credence to the incredibility of evil.”^{Footnote 23} In refugee law, an applicant’s account may not be consistent, coherent, or even plausible. It is often not possible to verify an account with reference to other forms of proof, such as documents or other witnesses. Furthermore, some grounds for recognition, such as membership of a particular social group, are particularly difficult to demonstrate other than through an applicant’s testimony or self-identification. These challenges are recognized in refugee law, where the standard of proof requires an assessment of the degree of probability that the events that allegedly led to a well-founded fear of persecution have occurred; even if aspects of the applicant’s claim are disbelieved, the decision maker must consider whether there is any other basis asserted that offers grounds for the protection being sought. In Australian law, the standard has been described as lower than the balance of probabilities; that is, there may be far less than a 50 percent chance that the claim is credible.^{Footnote 24} Furthermore, decision makers are required to ask themselves: “What if I am wrong?”^{Footnote 25}

The primary form of evidence in refugee law is oral testimony. Indeed, what an applicant says about her life and her experience of persecution is usually the only form of direct evidence available to decision makers. An applicant’s account takes the form of a first-person life narrative, through which she must attempt to demonstrate why she would fear persecution if she were to return to her country of origin. She delivers her testimony in a series of speech acts, which she hopes will support the credibility of her claim through the performance of refugee-ness. Her account—and by this I mean the speech (most often in an interpreted form), the mode of delivery, as well as the silences—function as the evidence for truth. It is not simply the truth or falsity of the content of the testimony, the access it provides to the truth through representation, but the conditions of discursive delivery that function to create meaning.

The grounds for recognition of the refugee subject are prescribed in the Convention, which specifies that only certain subjective characteristics may form the basis of a claim for protection: a refugee is a person who has “a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion.”^{Footnote 26} The notable absence of gender and sexuality as specified grounds for protection reflects the normative masculinity and heteronormativity of human-rights discourse characteristic of the post-World War II period in which the Convention was drafted and adopted. Notwithstanding the fact that women and children are estimated to constitute up to 80 percent of refugees internationally,^{Footnote 27} they have, until recently, remained largely invisible in refugee law. Women seeking asylum have faced a difficult task in convincing decision makers that the persecution they face as women results from one of the specified reasons of race, nationality, religion, political opinion, or membership of a particular social group.^{Footnote 28} However, during the 1990s, women’s claims for asylum on the grounds of gender-based persecution and membership of a “particular social group” began to be accepted by refugee decision-making bodies in some countries.^{Footnote 29} This recent trajectory of jurisprudence provides fertile ground for understanding the discursive production of the refugee subject.

The recognition of women’s claims of gender-based persecution—persecution often occurring in the “private” domain of domestic, familial, and sexual relations—has shifted the narrative of refugee law away from its prior focus on harm perpetrated by or in the public domain.^{Footnote 30} The recognition of gender-based harm has the effect of reconstituting the subjects of refugee law; subjects are no longer exclusively men escaping violence perpetrated by the state, they are now also women escaping harm perpetrated by non-state agents, such as family members. Marking a further significant moment in refugee decision making, in 1999, the United Kingdom House of Lords found that “women in Pakistan” may constitute a particular social group for the purpose of a claim for asylum on the grounds of spousal violence.^{Footnote 31}

Women are now more visible within refugee law. However, this has necessitated a performance of refugee-ness that is recognizable to decision makers. This visibility also involves negotiation of an evidentiary paradox. The legal grounds for refugee recognition require that when presenting claims for protection, women must demonstrate their subjectivity as victims of persecution. Women, now visible within refugee law, make claims of gender-based persecution as subjects of third-world patriarchal oppression seeking liberated and autonomous lives in progressive Western nations.^{Footnote 32} In this way, a woman seeking asylum tailors and performs her claim through a narrative account that reiterates and re-inscribes familiar tropes of victimhood and dependence.

Sexuality-based asylum claims began to be heard in some signatory states at the same time as those relating to gender-based persecution. Initially, decision makers were dismissive of claims unless applicants were able to provide evidence of their sexuality and demonstrate that they had experienced persecution as a result of their sexuality becoming known in their country of origin. However, a similar public/private dichotomy as in gender-based persecution has emerged. Decision makers have commonly expected gay, lesbian, and bisexual claimants to hide their sexuality by being “discreet” in order to avoid persecution in their countries of origin.^{Footnote 33} Within this formulation of sexuality, being gay or lesbian requires that the applicant perform “being sexual,” by being able to recount their first experience of lesbian or gay sex as credible evidence of sexual orientation.^{Footnote 34} Toni Johnson points to the potential that such requirements for identity performance provide for agency on the part of applicants, the need for “queer abject disclosure” as legal proof.^{Footnote 35} However, as Jenni Millbank found when reviewing decisions from Canada and Australia, applicants seeking asylum on the grounds of sexuality during this period were presented with a paradox: being “too public” about their sexuality—which is how gay men are generally characterized—is interpreted as proof of acceptance of gay sexuality in the home country, and being “too private”—as lesbians are often characterized—is seen as evidence that discretion provides a shield from persecution.^{Footnote 36} Indeed, in classic Victorian style, lesbians were sometimes so privatized as to seem not to exist, as demonstrated by the gender-blind country information often relied on as evidence in decision.^{Footnote 37} The queer performativity required of applicants attempting to navigate the unpredictable permutations of refugee law, such as the expectation that they live closeted lives in order to minimize the risk of persecution, is characteristic of the subjectivization of the refugee.

The Australian High Court was, internationally, the first superior court to reject this line of reasoning, finding that two Bangladeshi men should not reasonably be expected to “‘co-operate in their own protection’ by concealing their sexuality.”^{Footnote 38} Applicants are no longer expected to be discreet and secretive about their sexuality.^{Footnote 39} While this has broadened the potential for sexuality-based claims, the shifting narrative of refugee subjectivity, which is now particularly apparent in primary-level decision making, requires that claimants demonstrate adherence to overt and stereotypically Westernized standards of gay and lesbian identity as the basis for credibility assessment, often resulting in disbelief of applicants’ claims if they are unable, for example, to identify gay popular-culture icons or demonstrate familiarity with gay social venues.^{Footnote 40} This is a version of queer identity familiar to Western decision makers. The shift is baldly illustrated in the fate of the Bangladeshi couple S395 and S396, whose claim, once remitted back to the Refugee Review Tribunal, was rejected because the decision maker did not believe that the couple were gay, despite the fact that the first constituted Tribunal had been convinced that this was the case.^{Footnote 41}

Infelicitous Speech

Interviews I conducted with decision makers at the Refugee Review Tribunal indicate that there is a widespread view that some applicants for review of primary-level decisions by the immigration department are “constructing” their narratives by imitating previously successful claims. Decision makers maintain that applicants who lie are jeopardizing their chances, suggesting that if applicants simply told the truth about what had happened to them, the legal process designed to provide protection could properly take effect. However, they also acknowledge that it really is not possible to know, definitively, if an applicant’s claim is credible. As two members explained:

In refugee law, testimonial accounts by the claimant may be the only, or primary, evidentiary source. However, any personal narrative contains gaps, omissions, and elisions, particularly when it is an account of traumatic experience, as is often the case for a refugee. This is recognized in refugee law, where, as a principle, unless there are good reasons to the contrary, applicants are given the benefit of the doubt.^{Footnote 44} The UNHCR Handbook maintains that “[u]ntrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in light of all the circumstances of the case.”^{Footnote 45} The RRT acknowledges that “[c]ontradictions, inconsistencies and omissions may arise in the evidence before the tribunal,” that traumatic experience may impact the “consistency of statements,” that applicants “may not be able to remember all the details of his or her personal history or reconstruct the chronological order of particular events,” “may forget dates, locations, distances, events and personal experiences,” and “may not reveal the whole of his or her story,” guiding decision makers to “consider overall consistency and coherence of an applicant’s account.”^{Footnote 46}

Zagor points out that the restrictive conditions characteristic of legal domains commonly demand a level of “self-crafting” of narrative identity.^{Footnote 47} He argues that the refugee narrative becomes a site of struggle—among the applicant, refugee advocate, and decision maker—in an attempt to make the story fit pre-established categories and requirements and a recognized pattern of behaviour.^{Footnote 48} As Macklin says, there may be a number of factors that influence how a claimant relates to the decision maker and therefore how she delivers her story.

These struggles for narrative authority may be characterized in Pierre Bourdieu’s terms as competitions for linguistic dominance, where the competence necessary for narration functions as a form of symbolic power within the field.^{Footnote 50} Bourdieu pays particular attention to the social conditions that endow a speaker with the competence to speak, such that “the competence adequate to produce sentences that are likely to be understood may be quite inadequate to produce sentences that are likely to be listened to, likely to be recognized as acceptable in all the situations in which there is occasion to speak.”^{Footnote 51} In the context of these struggles, the competence to narrate recognizable versions of refugee-ness serves to legitimate and naturalize certain representations that are acceptable in the legal domain. As we have seen, this is an ongoing struggle for narrative authority, for the dynamics within the field of legal determination have resulted in decisions that have expanded legal categories and thus redefined the refugee.

I suggest that it is in this way that the legal process leading to formal recognition of the refugee is structured as an interpellation. The individual, faced with the authoritative power of law, recognizes the call as an address made to her and, in an attempt to make herself recognizable, responds to it with a narrative account of her life. The ideological function of the legal process is to prescribe the discursive space, the linguistic conditions necessary to the field in which a claim for protection must be articulated. Within the structure of identity formation as an interpellation, the subject who responds is indeed complicit in the process, but the conditions that establish the norms for narration—the “norms that govern the humanly recognizable”^{Footnote 52}—mean that the subject may not have complete control over the narrative. As Butler explains:

Butler suggests that attempts to give full and authoritative accounts of the self are inevitably undermined because we cannot bear witness to our own origins. When giving a narrative account of oneself, “I am always recuperating, reconstructing, and I am left to fictionalize and fabulate origins I cannot know. In the making of the story, I create myself in new form, instituting a narrative ‘I’ that is superadded to the ‘I’ whose past life I seek to tell.”^{Footnote 54} When asked to explain the basis for her application for protection, an asylum seeker is likely to draw on existing accounts in an attempt to construct a narrative that is recognizable to a decision maker. As a result, a level of narrative congruence occurs, a homogenizing of accounts where the uniqueness of individual stories is occluded.

In reality, there may be good reasons for an asylum seeker to lie. Australia’s policies in relation to refugees are notorious for their stringency and political volatility. Since 1992, Australia has placed in mandatory and indefinite detention any “unlawful non-citizen”—that is, any person, including a child, who is not an Australian citizen and who arrives in Australia without a valid visa, which is the case for anyone who arrives “unlawfully” by boat. The 1992 federal government’s response to the arrival of asylum seekers by boat was the introduction of the “Pacific Solution,” which involved the creation of zones of legal excision whereby “unauthorized arrivals” were detained and incarcerated indefinitely on Christmas Island and Nauru and denied access to the legal avenues for appeal of negative departmental decisions available to onshore applicants.

As these measures demonstrate, idiom is actually critical in the discourse of asylum. The incessant, repetitive rhetoric of government policy and media representations, which reiterates the language of “queue jumpers,” “illegals,” “unauthorized arrivals,” “boat people,” “suspected illegal entry vessels,” as well as the legally endorsed terms of “unlawful non-citizen” and “irregular maritime arrivals,” function to represent asylum seekers as criminalized and abject. Notably, the debate has been fuelled recently by attention to “people smuggling,” shifting the subject of demonization from the refugee to the perceived agent of removal. Susanne Gannon and Sue Saltmarsh describe the interplay between government rhetoric and regulation of refugee discourses as “performative technologies of citationality and relationality,” which threaten the intelligibility and viability of asylum seekers.^{Footnote 55} The notion of “intelligibility” is pertinent because it highlights the perception that there is confusion within the community about how to understand the subject of asylum.

Anxieties of Naming

One way to characterize this hermeneutic confusion is encapsulated in the ambivalent semantic distinction that is drawn between “asylum seekers” and “refugees.” There is a view, held by government policy makers, NGO advocates, lawyers, and academics alike, that to distinguish the status of subjects in these terms is important, and that the failure to do so contributes to misunderstanding—that it results in both a failure to comprehend and an absence of empathy. Undeniably, within legal discourse, the distinction between an asylum seeker and a refugee is significant. An asylum seeker is someone who seeks the protection of a state, but who may or may not be found under international or domestic law to be a refugee. Being found to be a refugee is a legal determination of status that confers the right to the receiving state’s assurance of individual safety and security, political and religious freedoms, as well as the entitlement to work, housing, and health care.

Moreover, this distinction, which interpolates between a signifier that references a subject status prior to the legal process and one that signifies the referent of a rights-bearing subject, functions to maintain attention on questions of legitimacy. For example, a publication produced for members of the federal parliament states: “There is a difference between an asylum seeker and a refugee—asylum seekers are people seeking international protection but whose claims for refugee status have not yet been determined. Although those who come to Australia by boat seeking Australia’s protection are classified by Australian law to be ‘unlawful non-citizens,’ they have a right to seek asylum under international law and not be penalized for the ‘illegal’ entry.”^{Footnote 56} Similarly, the Refugee Council of Australia explains that “refugees are victims of persecution who have been recognized as fitting the definition of a refugee,” but also that “[t]he act of recognition of refugee status does not make someone a refugee. He/she has been a refugee all along: the granting of status merely makes it official. This is why it is important to presume that asylum seekers are refugees until proven otherwise.”^{Footnote 57} Such statements, while attempting to clarify and explain a semantic distinction in terms of its legal and political significance, actually contribute to an ambivalent discourse. After all, someone who is denied protection may actually be a refugee, despite being unsuccessful in meeting legal requirements such as convincing a decision maker of the credibility of her claim. Similarly, someone who is deemed by a legal process to be a refugee entitled to legal protection may not have previously identified herself as such.^{Footnote 58}

This fragmented identity is a perennial problem for the refugee seeking asylum, because demonstrating that she is who she claims to be—through documents and/or testimonial accounts—is central to the determination process. An identity that cannot be established, multiple identities, a false or uncertain identity, or statelessness may not only contribute to a failed claim to asylum, it may also result in indefinite detention if an asylum seeker cannot be deported to her country of origin.^{Footnote 59} An asylum seeker who is unsuccessful in acquiring recognition as a refugee has an ambivalent legal status. Like Zygmunt Bauman’s description of the stranger, she is neither friend nor enemy; rather, she is outside this opposition.^{Footnote 60} Unlike friends or enemies, strangers threaten because they are unfamiliar and cannot be recognized as subjects, thereby presenting “hermeneutical problems.”^{Footnote 61} Outsiders who claim asylum may not be recognizable as refugees and thus become “undecidables,”^{Footnote 62} raising questions of indeterminacy and ambivalence.

Subjects of Recognition: At the Australian Refugee Review Tribunal

In this final section, I will investigate this ambivalent structure of recognition through examples of claims at the Refugee Review Tribunal. In Australia, initial assessments of claims for protection visas are conducted by delegated officers of the minister for immigration and citizenship.^{Footnote 63} If a claim is unsuccessful, an application for review of the decision can be made to the RRT. As a merits review tribunal, the RRT is not bound by formal rules of evidence, and members have considerable discretion in how they conduct hearings, generally taking an inquisitorial rather than adversarial approach.^{Footnote 64} Strict rules of evidence do not apply to fact finding in administrative review, notwithstanding that it must be rigorous and based on evidence with “rational probative force.”^{Footnote 65}

Appeal hearings at the RRT of negative departmental decisions are conducted in private in order to protect the applicant.^{Footnote 66} During 2010–12, I obtained permission from the senior registrar and the applicants to observe ten hearings at the Sydney registry of the RRT and conducted interviews with seven decision makers (referred to as “members” of the Tribunal) in Sydney and Brisbane. In interviews, members reflected on the importance of narrative consistency to credibility, pointing to the need for “internal consistency but not too much,” and suggesting that the appearance of an over-rehearsed story may actually suggest lack of credibility. One member said:

As the member highlights, speech acts repeated verbatim acquire a ring of insincerity because the narrative path in truth telling tends not to be delivered in “straight lines.”^{Footnote 68} However, paradoxically, decision makers look for a level of narrative continuity as the basis for credibility:

Prior to one of the hearings I observed, the member told me that one of the key credibility issues raised by the claim was that only a few weeks earlier, she had heard another claim in which an applicant had said almost identical things about his family. The applicant whose claim I observed (Applicant B) was a citizen of Afghanistan, a young, Dari-speaking, Tajik Sunni Muslim man who had grown up in Pakistan. He had come to Australia on a student visa and had, at one stage, been living at the same residential address as another applicant (Applicant A). Applicant B claimed that he could not return to Afghanistan because the Taliban would suspect that he was working for the United States and would assume that he had become a Christian because he had been living in Australia and was able to speak English. The applicant was represented by a registered migration agent, who made a point of advising the Tribunal that he had not been acting in Applicant A’s primary application. Applicant A had lodged his claim some two months after that of Applicant B, although the hearings occurred in the reverse order.

During the hearing, the member put to Applicant B the credibility issue raised by the resonance between the two claims. When the member asked the applicant if he could explain this, the applicant said that it was a coincidence and that a lot of students had been living at that address. In a discussion with the member after the hearing, she explained that the difference in credibility between one claimant and another may be apparent if one claimant presented a “compelling” argument. She also asserted the importance of country information in establishing the likelihood of a risk of persecution for the applicant if he returned. Notwithstanding the credibility issues raised, the member remitted the application for a protection visa for reconsideration by the department, with the direction that the applicant satisfied section 36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations. In such a case, a delegate of the department is required to reconsider the application, having regard for any directions made by the Tribunal. In the decision, the member identified the credibility issue, stating:

However, while remitting the claim of Applicant B, the member affirmed the delegate’s decision in relation to Applicant A, on the grounds that it lacked credibility. In a letter to the applicant,^{Footnote 70} the member pointed out:

Applicant A then sought review in the Federal Magistrates Court, which set aside the decision and remitted it to the RRT, where a differently constituted Tribunal remitted it again to the delegate for reconsideration.^{Footnote 72}

It is clear from the trajectory of these claims—one travelling back and forth through the administrative hierarchy and the other successful in the first appeal—that a level of arbitrariness is involved in refugee decision making. We really cannot know whether or why Applicant A and/or Applicant B embellished or fabricated his claim. It is, as the member explained in the interview, entirely possible that both applicants had legitimate claims; it is also conceivable that one copied the other, or that they were in collusion with each other. Perhaps someone they trusted advised them to take this course. In performing a credible account of refugee-ness through the delivery of a recognizable narrative, Applicants A and B stuck too closely to the script, failing to engage in a sufficient level of improvisation; they performed their refugee-ness too literally.