A/Effective Adjudications: Queer Refugees and the Law

Abstract

Who is the ‘queer refugee’? How do we manage their feelings, emotions and experiences when assessing or supporting their claims for asylum? In contemporary refugee decision-making and litigation, numerous challenges arise when discerning what constitutes a ‘well-founded fear’ of persecution for a clearly defined ‘particular social group’. Specifically, fact-finding and credibility assessment in this area of law reinforces stereotypical assumptions about sexual citizenship, public persecution, fixed identity and immutable erotic desire. An inherent (functioning) sexuality or an essentialist gender identity must be causally related to serious incidents of state sanctioned harm. In doing so, the refugee status-determination process privileges the emotional attachments of decision-makers while occluding the emotional narratives and identities of lesbian, gay, bisexual, transgender, intersex and queer asylum seekers. Responding to these legal and administrative tensions, using case studies from Australia and contrasting them with developments in Europe, this paper uses emotion as a focal point to think about how adjudicators can accommodate disparate cultural differences and experiences in refugee law.