BY JOSEPH LAVELLE WILSON AND DOUGLAS MCDONALD-NORMAN

‘Country information’ is information about other countries, which plays an essential role in refugee status determination (RSD). In Australia, RSD is conducted by officers of the Department of Home Affairs and by the Administrative Appeals Tribunal. The key criterion for entitlement to a refugee visa is a ‘well-founded fear of persecution’, and without some way of corroborating asylum seekers’ claims to fear harm if removed to their countries of origin, it is difficult to assess whether these fears are ‘well-founded’. But country information is not an objective, omniscient narrative of events overseas. It is often created via a political, contested process. Where country information is created by governments, it may be manipulated to serve partisan or ideological agendas.

The United States Department of State (USDOS)’s Country Reports on Human Rights Practices are among the most important, respected forms of country information in RSD internationally. (When one of us was practising in refugee law, he called the annual release of the USDOS reports ‘Country Information Christmas’.) In the United States, the Board of Immigration Appeals have observed that these reports are ‘usually the best source of information on conditions in foreign nations’ and should be given ‘special weight’ in RSD. These reports are also used extensively in RSD in Australia and Nauru.

The most recent version of the reports is markedly different from previous editions. Crucial information about human rights issues has been omitted or selectively edited, including in relation to countries that produce a large share of asylum seekers in the United States. The amendments are not just significant for asylum seekers in America; they reflect a broader shift in priorities and focus that will affect their use in other nations, including Australia. These edits were reportedly made on the direction of a top aide to the Secretary of State. These alterations – which must be read in light of the Trump administration’s hostility towards refugees and asylum seekers – significantly reduce the reports’ usefulness as a source of country information.

This post examines these recent changes to the USDOS reports. It summarises their impact and places them in the broader context of public law. Decision-makers may not be able to effectively assess whether individual asylum seekers are at risk of persecution if the information upon which they rely in finding facts is itself compromised and shaped by government policies. The integrity of RSD decision-making requires that the evidence before decision-makers itself contains some element of integrity.

The Cuts

The current version of the USDOS Country Reports on Human Rights Practices is significant because of what is left out – chiefly information about discrimination against women. While the latest reports still include sections addressing discrimination faced by women, in many cases those sections have been drastically abridged. The omitted content concerns the enforcement of laws designed to protect women and the ability of women who experience intimate-partner violence, sexual assault, and other gender-based violence to access justice. For many countries, including El Salvador, Guatemala and Honduras, all that remains in the reports is a statement of the legal framework for preventing discrimination against women, with little or no description of the effectiveness of that framework – or of the reality for women living under these laws.

In last year’s USDOS report on Honduras, 1235 words were allotted to address discrimination against women. This year USDOS cut that to just 364 words. Detailed statistics on the number of domestic violence complaints filed were expurgated, as were statements about why in many cases victims of domestic violence were reluctant to press charges against their abusers. This information (or its absence) would be fundamental to any decision on whether women who have experienced this violence would face a real chance of its recurrence should they return to their country of origin, by demonstrating that women in similar situations have not been able to receive protection against harm. The pattern of cutting relevant information about discrimination against women was echoed in the removal of the subsection titled “Reproductive Rights”. The USDOS has instead chosen to limit its observations in that regard (in reporting on other nations) to a new category titled “Coercion in Population Control”.

The political context of these changes is difficult to ignore. US Attorney General Jeff Sessions recently referred an asylum case to himself for review under special authority. Pursuant to this authority, Attorney General Sessions has just issued a significant decision in Matter of A-B- – an exercise of the Attorney General’s power to issue rulings on asylum law in individual cases, overruling the Board of Immigration Appeals. This new decision considers:

whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

The framing of this question reflects the conservative perception of intimate partner violence as a private harm (as ‘private criminal activity’), rather than a social or public issue. It presents harm feared by women as the acts of individuals motivated by individual animus, rather than as a result of societal or governmental discrimination against women (either in harming women or in failing to intervene to protect them). Under this construction, the role of the government in preventing violence against women is limited; governmental inability to prevent violence against women is presented as a mere question of resources and competence, evading important questions of whether consistent state incapacity is the result of discriminatory failures to protect women from violence.

Sessions’ ruling in Matter of A-B- has significant consequences for women seeking asylum in the United States because they fear harm from partners or non-state actors (framed in the decision as ‘private criminal activity’) – making it much harder for these women to receive asylum. Sessions’ ruling specifically targets women who experience domestic violence, stating that it is very unlikely they could ever meet the definition of a ‘particular social group’, that the harm they experience in most cases is not sufficiently connected to a protected ground, and that the ‘persistence of domestic violence’ in a country is not enough to establish persecution.

This new ruling is the other side of the coin to the amendments to USDOS country reports. The Attorney General’s decision ignores the country conditions which demonstrate failure by governments to respond to violence against women; it exhibits a similar unwillingness to question bad faith or discrimination in how supposedly protective laws are enforced. Viewed in light of the gutted USDOS reports, the US Attorney General’s decision sharply exacerbates barriers for asylum seekers in the US who are victims of intimate partner violence, sexual assault and other ‘private criminal activity’. Even though Sessions’ ruling does not apply to Australian decision-makers, these same attitudes exhibited in the USDOS reports will create similar difficulties for Australian asylum seekers, as explored below.

The Consequences

Charges of political manipulation in the production of country information are not new. American judges have identified a ‘perennial concern’ that the USDOS ‘softpedals human rights violations by countries that the United States wants to have good relations with’. Catherine Dauvergne and Jenni Millbank have questioned the independence and accuracy of DFAT reports and cables as a source of country information, particularly given that these reports are frequently contradicted by other sources. In Australia, Ministerial Direction No 56, which requires decision-makers to consider DFAT’s ‘country reports’, has been characterised as an attempt ‘to toughen up the asylum seeker claims process’.

Even if the most recent changes to country information are part of a tradition, this does not mean that governments can or should be able to rewrite the sources on which decision-makers rely to accommodate the whims of new parties in power. Country information reports produced by governments are not ‘policy’, and should not be treated like policy; they are supposed to represent an honest assessment of conditions in other nations. This assumption of good faith is part of how and why country information is relied upon by decision-makers. Decision-makers (both at first instance and in tribunals) are required to conduct an individualised assessment, determining whether each individual asylum seeker would be at risk of harm if removed to their country of origin. Country information does not replace this function; it does not explicitly suggest who should be recognised as a refugee, but merely provides historical, political and social information to assist the decision-maker in reaching their own conclusion. Decision-makers must apply information expressed in general terms to the highly specific circumstances of every applicant. As part of this, decision-makers can determine that official sources of country information are distinguishable from the circumstances of individual applicants, or examine information from other sources (like NGOs or the governments of other nations).

Even if decision-makers can choose to examine other sources, manipulation of country information has important implications for the ability of administrative decision-makers to effectively carry out their functions. Governments can constrain a decision-maker’s ability to determine whether or not an asylum seeker is entitled to protection by first mandating that the decision-maker consider a particular form of information, then by altering the content of that information to weigh in favour of a government’s policy objectives – whether to maintain good relations with a foreign ally, or simply to limit or prevent the recognition of refugees. (The idea that government-produced country information might be adverse to the interests of asylum seekers, for whatever reason, is not merely academic. In Australia, for example, DFAT reports have been consistently criticised as less supportive of asylum seekers’ claims, and more favourable towards their countries of origin, than non-government sources.) Even if the decision-maker is only required to ‘consider’ such information, if the altered source is sufficiently slanted towards a particular point of view then a correspondingly greater mass of independent sources saying the opposite will be required to counterbalance it (unless the decision-maker affords the government report no weight at all). A decision-maker must have access to sufficient information to fairly assess each asylum seeker’s case – just as, by analogy, democracy requires electors to have sufficient information to make an informed choice. If a major source of information, treated by custom and policy as authoritative, is partial or biased, this affects the integrity of the decision-making process as a whole, and limits a decision-maker’s ability to correctly determine an asylum seeker’s claims for protection.

Returning to the example of the USDOS’s reporting of violence against women: consider a woman who fears returning to Honduras because she will experience family violence from which the state, discriminating against her because of her gender, will not protect her. If she applies for asylum in the United States, USDOS reports will play an outsized role in the assessment of her claims. If she applies for asylum in Australia, these reports will be afforded significant weight in decision-making for, although Australian decision-makers are not required to consider USDOS reports, they are one of the most trusted and most authoritative sources in Australian RSD – almost the first thing considered by any migration agent or decision-maker in arguing or deciding an asylum claim. The applicant’s ability to prove that she is at risk of harm if removed to Honduras is constrained, not just by a lack of evidence, but because one of the main sources of evidence that that decision-maker will rely upon has been drafted (if in the US, by the same government against whose decision she is appealing) so as to make it harder for her to prove that she is a refugee.. When country information is cut to serve partisan policy, government decision makers will not be able to recognise whether asylum seekers are entitled to protection or non-refoulement.

Conclusion

Developments in the United States are not a purely academic concern for Australian audiences. The manipulation of a major source of country information like the USDOS reports to suit the political needs of a particular American administration diminishes their usefulness globally, and makes it harder for asylum seekers’ claims to be corroborated – limiting the value of nominal rights to asylum and potentially leading to substantive injustices. Attempts to erode the integrity and quality of administrative decision-making in one nation can affect global expectations and standards, particularly in refugee law (where key tests and decision-making practices may be similar across nations).

As noted, manipulation of country information is not unheard of or unprecedented. But to allow it to happen without comment or criticism creates a political environment where there are no repercussions for shifting the goalposts or for limiting the evidence available in asylum claims to fairly determine whether a person is at risk. This makes it more likely to happen again, in more blatant or self-serving ways – both in the United States and in Australia.

Furthermore, although exclusion of political interference in the formation of country information is a start, the defects in the new USDOS reports are not just the product of the process by which they were reached. They reflect instead a preference for listing the existence of supposedly protective laws, over a reasoned examination of their effect and enforcement in practice. Future drafters of country information must also be concerned to look beyond superficial description to examine lived experiences of harm and helplessness.

The views expressed by both authors are their own, and not expressed on behalf of any firm or institution.

 

Joseph Lavelle Wilson is a Staff Attorney at the New York Legal Assistance Group and Douglas McDonald-Norman is a casual academic at the University of Technology Sydney and the Australian Catholic University.

Suggested citation:  Joseph Lavelle Wilson and Douglas McDonald-Norman, ‘Removing the Goal Posts: Manipulation of ‘Country Information’ and Public Law’ on AUSPUBLAW  (18 June 2018) <https://auspublaw.org/2018/06/manipulation-of-country-information-and-public-law/>