Moving Representations: Queer Refugee Subjectivities and The Law

Senthorun Sunil Raj (307157105)
MOVING REPRESENTATIONS:
QUEER REFUGEE SUBJECTIVITIES

AND THE LAW
Senthorun Sunil Raj

307157105
ssun2289@uni.sydney.edu.au
A thesis submitted in partial fulfilment of the

requirements of the degree Bachelor of Arts
(Honours) in Gender Studies, University of Sydney
Submitted: 18 October 2010
1
Abstract
Validating asylum claims on the basis of a person’s sexual orientation rely

on discerning what constitutes sexuality and a ‘well founded fear’ of
persecution. However, the way these questions assume relevance and are
interpreted in asylum law is fraught with epistemological challenges.
Authenticating refugees on the basis of sexuality relies on suturing
narratives of ‘functioning’ sexuality as causally related to specific incidents
of persecution. Emotion, desire and feeling are obscured by a culturally
coded administrative method of verification, a narrative process which
produces a caricatured, ethnocentric and over determined legal trope of
the gay or lesbian asylum seeker. Refugee subjectivity becomes mute
within the colonising space in which it seeks asylum. Responding to this,
my thesis will examine how and why the queer refugee remains grounded
in these narratives of fixed identity. Moving beyond such a parochial legal
imaginary, I will consider the possibilities of conceiving queer refugee
experiences through relational representations and affect. Developing the
scope of current debates in asylum law, my thesis will revise how the
queer refugee body is constructed in legal and administrative narratives.
Using the trope of the ‘queer refugee body’, I reconsider the causal
relationship between sexual subjectivity and persecution. While the ‘queer
refugee body’ has no legal currency in international law, I use it as an
analytic term to encompass bodies that experience persecution framed in
terms of their (perceived) ‘queerness’. Queerness as it relates to refugees
is not necessarily confined to a universal or fixed sexual identity or
identification. Rather, representations of the queer refugee subject must
focus on how an asylum seeker experiences and negotiates sexual
attachments, spaces, emotions, displacements and violence in both
relational and affective terms.
Keywords: refugees; diaspora; sexuality; persecution; emotion
2
‘How do you deal with things you believe, live

them not as theory, not even as emotion, but
right on the line of action and effect and
change?’
- Audre Lorde, Sister

Outsider
3
CONTENTS
Page
Introduction 5
Chapter I: Strange(r) Bodies 10
Chapter II: Postcolonial Que(e)ries 18
Chapter III: Affective Narratives 32
Conclusion 49
References 52
4
INTRODUCTION
What counts as sexuality? What constitutes persecution? Who is the
refugee? These are some of the immediate and disparate questions which
work together to construct how sexuality based persecution is determined
in international refugee law. While I read the administrative documents
that decided whether a refugee was or was not homosexual, it was
particularly frustrating to observe the ways in which discourses of sexuality
were used to discern the authentic from the inauthentic (i.e. the ‘confused’
or ‘experimental’ sexual experience from the ‘genuine’ sexual identity).
This approach implies that some sexual orientations are more valid than
others. Asylum law is fraught with epistemological challenges. In
international jurisprudence commenting on the Refugee Convention 1951
and subsequent interpretations of this convention in administrative law,
these questions are part of a policy and legal structure that seeks to codify
the ‘refugee’ in the terms of a discrete persecuted characteristic.
Authenticating refugees on the basis of sexuality relies on suturing
narratives of ‘functioning’ sexuality to incidents of persecution. Emotion,
desire and feeling are obscured by a culturally coded administrative
method of verification, a narrative process which produces a caricatured,
ethnocentric and overdetermined legal trope of the gay or lesbian asylum
seeker. Refugee subjectivity becomes mute within the colonising space in
which it seeks asylum. Such an approach raises concerns as to why the law
5
construes identity and experience within a largely ethnocentric and
objectifying representation of legitimate sexual practices or violent
experiences. In response to this, my thesis will examine how and why the
figure of the queer refugee remains grounded in narratives of fixed
identity. Focusing on spatial and embodied difference(s) rather than a
quest for universal (fixed) identity, I consider these representations in a
relational way, alongside experiences of affect, to frame sexuality and
persecution in heterogeneous ways.
Australia has attempted over the past two decades to protect
asylum seekers who flee persecution on the basis of their sexuality.
Assessment of these claims has relied on delineating the notion of sexual
identity and persecution in universal and discrete terms. Within the
context of current asylum debates, the trope of the ‘queer refugee body’
materialises through an examination of persecution and sexual
subjectivity. While the ‘queer refugee body’ has no currency in
international law, I use it as an analytic term to encompass bodies that
experience persecution framed in terms of their (perceived) ‘queerness’.
Queerness as it relates to refugees is not confined to a particular sexual
identity or identification, but rather articulates sexual and cultural
difference(s). It is a discursive and affective subjectivity which emerges
through how a refugee experiences and negotiates their sexual
attachments, persecution, displacement and intimate practices. While
‘gay’ and ‘lesbian’ operate as the terminology for sexual minorities in legal
discourse, such a vocabulary often confuses rather than clarifies how
refugee who are sexual minorities understand the specificity of their
desires and practices in their countries of origin. The legal definition of a
refugee relies on establishing a causal link between sexuality and
persecution. My conception of the ‘queer refugee’ extends this scope by
refusing to fix sexual identity or violence to an ethnocentric, implicitly
6
masculine epistemological category and by considering how sexual
subjectivity emerges through experiences of violence.
Responding to the lack of qualitative, culturally specific legal
frameworks, postcolonial approaches to subaltern and diasporic subjects
offer useful interventions to rethink how queer refugee identities are
produced in the context of geographical displacement. Connecting
displacement and sexual identity thus fractures the rhetorical legal
currency of the ‘closet’. Asylum seekers are either too ‘transgressive’ to
enter Australia by being visible, or they lack credibility for refusing to
disclose his/her sexuality in public. By broadening the policy and scholarly
debates in interpellating the refugee, this thesis explores new avenues of
mapping refugee subjectivity and persecution which do not codify
experiences of sexuality and violence to a dehistoricised universal identity
or a causal narrative. Transnational movement refigures how a refugee
experiences their sexuality and persecution. In putting these concerns
together in legal and administrative decision-making, it is important to
consider the scope of the law to engage with the textual, rhizomic and
affective dimensions of queer refugee bodies. In doing so it is necessary to
ask whether the Australian law can recognize and accommodate non-
unitary identities, experiences and desires and move beyond a parochial
understanding of ‘closeted’ sexualities.
My thesis sketches out nine Australian refugee decisions ranging
from 1994 to 2010. Chapter I begins by outlining inconsistent constructions
of sexuality and refugee status within a legislative and jurisprudential
context. This chapter explores the way sexuality is currently defined in
causal terms through the refusal of a young Bangladeshi man’s claims,
where brutal police harassment and familial punishment were understood
as distinct from his sexual orientation.
Chapter II expands the legal framework by weaving together the
7
postcolonial work of Gayatri Gopinath (2005) and Gayatri Spivak (2006) to
consider the possibilities for representing queer refugee bodies in
relational terms. The first case in this chapter outlines the claims of an
applicant from the Ukraine, who experienced persecution on the basis of
his Russian ethnicity and what he represents as a ‘homosexual
orientation’. The Refugee Review Tribunal (RRT) in this case denies
protection on the grounds that a practising homosexual could not also be a
practising Catholic. Moving to queer female sexuality, the next RRT
decision genders the female subject within a narrative of domesticity,
looking at how a female asylum seeker experienced persecution in the
marital home. This case differentiates between heterosexual domestic
violence and homophobic violence, the former being used as the basis for
granting asylum.
Differentiating between forms of intimacy is crucial to
understanding sexuality. Therefore, I consider the construction of kinship
by examining the life of a Nigerian applicant, a former seminary student,
who is granted asylum on the basis of his ability to represent to the RRT a
marriage-like commitment to his partner. Intimacy and privacy, however,
are treated inconsistently in the administrative decisions. In a case
involving a female asylum seeker from Vietnam, the threat of violence
coerces the applicant to limit intimate contact with her partner and she
chooses not disclose her sexual identity to avoid public reprobation. Such
‘effective’ management of her sexual identity subsequently frames her as
an inauthentic lesbian subject for the RRT. The final case study in this
chapter concentrates on the ‘home’ through the experiences of a male
Indian applicant, who fled due to threats of physical violence. However,
because he asserts an emotional attachment to the place he grew up (and
where his partner resides) and is unable to ‘freely’ (read: publicly) embrace
his sexuality in Australia, he is denied credibility and asylum.
8
Expanding the judicial approaches to public and private
experiences of persecution in the decisions outlined above, Chapter II
explores the problematic way these asylum seekers are forced to
authenticate their sexual identity through a narrative of (Western gay
male) public sexuality. Queer diasporic desire, however, does not fit neatly
within fixed such a rubric. Queer diasporic subjectivities are subject to
erasure either by a liberal ethnocentric narrative that seeks to ‘liberate’
them or by a nationalist ‘home’ ideology which refuses to imagine their
existence. Using Gopinath’s analysis on queer diasporic desire in
conjunction with Spivak’s notions of the ‘subaltern’ and the ‘margin’, it is
possible to note how refugee subjectivity is characterised by transitory
attachments to different people and places in the context of fleeing from
persecution. Connecting these arguments with geographically specific
articulations of the ‘closet’ presents a relational rather than binary
approach for representing diasporic sexual subjectivity.
While shifting the discursive terms in refugee law is crucial,
developing socio-legal approaches for thinking about diasporic
geographies or subaltern movement requires a focus on affect. Chapter III
expands on Chapter II by que(e)rying why despite ‘a well-founded fear’
being a central legal test to validate refugee claims, little jurisprudential
attention is paid to how this can be better understood by focusing on the
affective qualities of fear itself. Adding to the decisions outlined in the
previous chapter, I examine the difficulties faced by a Lebanese refugee
because of his disinterest in the queer ‘scene’ in Australia and his apparent
lack of ongoing sexual activity: two findings which the RRT uses to refuse
his asylum claim. Emotion, particularly pain, is explored further in the case
of a Lithuanian female asylum seeker, who comes to understand her
sexuality through experiences of sexual violence endured in a familial
context. The final case in this chapter concentrate on how an Indian man,
9
came to experience his sexuality through intimate (sometimes non-sexual)
relations with other men, in both recreational and domestic spaces, a
concept the RRT is unable to grasp.
Chapter III considers how sexual subjectivities form through
experiences and spaces of violence. Examining the affective dimensions of
sexual experience, intimacy and violence provides greater scope for
thinking about how the queer refugee body is constituted through the
trope of ‘orientations’ which I draw from Rosi Braidotti’s (2004) ethics of
the nomadic subject and Sara Ahmed’s (2006) rethinking of queer
subjectivity as both spatial and embodied sites of orientation. In doing so, I
consider how the category of the ‘social group’ can be made sensitive to
queer differences by framing the erotic agency and emotions of refugee
bodies in broader social contexts.
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CHAPTER I: STRANGE(R) BODIES
In order to situate the broader theoretical and epistemological problems in
delineating the queer refugee body, it is important to consider the current
scope of refugee legal scholarship. Connecting sexuality and refugee
subject positions in the law is an emerging area of jurisprudence.
Historically, the legal system (particularly in criminal law) has approached
the homosexual body as a threat to the impermeable and bounded
structure of (male) bodily integrity (Golder 2004: 5). Legal theorist Ngaire
Naffine adds that the homosexual male body is both ‘liminal and
dangerous’: the act of penetration and the pleasure engendered from it
undermine the assumption that (male) bodies are discrete and closed
surfaces (Quoted in Golder 2004: 5). While Ben Golder’s analysis
concentrates on the criminal justice formulations of the ‘homosexual
advance defence’, his argument is illustrative of the way sexuality is
understood in the law through tropes of agency, penetration and invasion.
Refugee subjects, however, occupy a distinctly different position
in the law. Rather than framed as threatening, the genuine refugee, is a
perpetual victim, displaced from a violent (typically non-Western) country
in need of ‘protection’ by liberal democracies (Crock 2004: 54). Unlike the
discursive position of the aggressive homosexual, the refugee subject in
the law is rendered in sympathetic and vulnerable terms, as former
Australian Attorney-General Phillip Ruddock termed ‘those in need’, whom
we have obligations to protect (Stratton and McCann 2002: 157).
There is a troubling disjunction in how the law constructs the
queer body and the refugee body differently. Legal formulations of
sexuality are typically understood in terms of the white gay male who
consumes sexuality in public, while the refugee is cast as the victimised
racial ‘other’ (or a non-white/ethnic body) with no capacity for agency
11
(Stratton and McCann 2002: 159). This elision becomes problematic when
attempting to represent the subject position of a queer refugee body in a
set of parochial legal narratives that have divergent understandings of
homosexual and refugee bodies. A queer refugee subject must
simultaneously claim a queer sexuality that relies on agency and
consumption in public space, while also narrating a refugee narrative of
victimhood and persecution from a violent ‘home’ (non-Western) country
that oppresses them. This ‘hybrid’ or layered identity is often obscured in
the application of international legal principles to Australian asylum law.
Locating the queer refugee subject in law
Drawing upon the Refugee Convention 1951 and subsequent international
refugee case law, ‘a well founded fear of persecution’ based on the
particular category of ‘social (sexual) group’ is mapped in paradoxical
terms in jurisprudence and legal theory in Australia. Under Article 1A(2)
Convention Relating to the Status of Refugees 1951 (UN) (Refugee
Convention 1951) there are no categories for persecution on the basis of
sexuality. In order to seek asylum, individuals need to claim refugee status
under a ‘well founded fear of persecution’ based on ethnicity, nationality,
religion, social group or political opinion.1 These definitions have been
incorporated into Australian law under the Migration Act 1958 (Cth). Chan
Yee Kin v Minister for Immigration and Ethnic Affairs (1989) establishes the
two-tiered test for such a determination: a subjective characterisation of
‘fear’ and whether such fear has an objective reality so to be understood
as ‘well founded’.2 Toohey J explicates in Chan that ‘well founded’ is
defined as a ‘real chance’ of harm which is not remote or insubstantial.3
1
Article 1(a), The Convention Relating to the Status of Refugees (Geneva) done 28
July 1951,
http://www2.ohchr.org/english/law/refugees.htm accessed 6 May 2010.
2
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
3
Id at 407.
12
Moreover, asylum seekers must be unwilling or unable to seek protection
from their country of origin due to those fears.
James Hathaway elaborates that such a test is not ‘practically
meaningful’ when attempting to situate the concept of ‘well founded fear’
as solely objective in character. That is, whether an individual ‘can
demonstrate a present or prospective risk of persecution, irrespective of
the extent or nature of the mistreatment, if any, that they have suffered in
the past’ (Quoted in Walker 1996: 575). Hathaway insists on an objective
character to determining persecution. However, he also gestures beyond a
quantitative understanding of violence as physical injuries, by considering
the psychological effects and emotional character of persecution.
Moving Hathaway’s argument further, international human rights
law in recent years has moved to recognise the distinct forms of
persecution and discrimination suffered by sexual and gender minorities in
the context of asylum. Article 23(A) of the Yogyakarta Principles 2007
places an obligation on States to,
‘review, amend and enact legislation to ensure that a well founded

fear of persecution on the basis of sexual orientation or gender
identity is accepted as a ground for the recognition of refugee status
and asylum’.4
While the Yogyakarta Principles do not legally bind States to recognise
sexual orientation in domestic application of asylum law, Australia has
come to accept sexuality as a valid ‘status’ of persecution under the
Refugee Convention 1951 category of ‘social group’ for the past two
decades. However, sexuality is difficult to locate within the definition of a
social group. ‘Social group’ has taken its legal currency from Morato v
Minister for Immigration, Local Government and Ethnic Affairs (1992)
where a person ‘belongs to or is identified with a recognisable or
4
The Yogyakarta Principles: Principles On The Application Of Human Rights Law In
Relation To Sexual Orientation and Gender Identity (2007),
http://www.yogyakartaprinciples.org/principles_en.htm accessed 5 May 2010.
13
cognisable group within a society that shares some interest or experience
in common’.5 In making such assumptions, sexuality becomes reduced to a
universal identity that can be attributed to a particular set of shared
experiences. Yet, the specificity of persecution based on sexuality, as
individuals experience it, requires a more nuanced consideration of sexual
experiences beyond current assumptions of what is considered ‘normal’
sexuality. As Greg Mullins argues, there is a need to find a common,
reducible characteristic that is immutable to all those who identify as non-
heterosexual (2003: 146).
Determinations of (homo)sexuality
In the RRT determination N93/00846, the concept of sexuality in the social
group category is defined as:
‘…when certain societies…choose to identify the group by

the immutable characteristic of “homosexual”’. 6
As Catherine Dauvergne and Jenni Millbank note, much of the
jurisprudence in this area focuses upon sexuality, which understands the
‘social’ as a universal characteristic innate to particular bodies (2003: 3).
What this obscures, as Ben Golder argues, is the way the body is
discursively constructed within the legal system (2004: 54). That is, queer
bodies are not ontologically fixed, a condition illuminated by the
representations of non-Western sexualities. Failing to acknowledge the
diasporic, non-Western position of the queer refugee body effaces sexual
heterogeneity and the mediation of homophobic violence through different
cultural and social relations. Sexuality is not reducible to a script of genital
penetration, sexual object choice, or incidence of partners but rather, is an
embodied response or process of orientation that manifests in particular
5
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992)
39 FCR 401.
6
N93/00846 (1994) RRTA 347 (8 March 1994) at paragraph 76.
14
locations (Ahmed 2006: 54). Irrespective of this, however, the Refugee
Review Tribunal (RRT) utilises heternormative Western knowledges about
what constitutes ‘proper’ sex or ‘legitimate’ desire to recognise and
normalise queer immigrants from different national contexts.7
Unlike other forms of legal determinations, credibility assessment
in refugee decision-making is difficult. The evidence used to determine the
legitimacy of a refugee consists largely of personal narratives of
experience. Millbank notes that interpellating the refugee involves an
intensely personal interrogation of individual history with a much broader
speculation on the legitimacy of the asylum seeker’s sexuality and the
threat it poses to him or her (2009: 2). Tribunals seek to establish a ‘ring of
truth’ to a claim. This term reflects the way administrative decision makers
think that sexuality should be understandable as a discoverable ‘objective’
truth (Millbank 2009: 9). This jurisprudence mimics what Elizabeth Povinelli
argues is the ‘thematisation of the Aboriginal Australian’ in native title
claims in Australia (2006: 52). Both asylum law and native title law rely on
authenticating cultural identity through a universalised genealogical
narrative. For queer refugees specifically, if their experiences ‘fit’ within
indexes of victimisation, genital penetration, consumption and
transgression, their authenticity becomes intelligible to an Australian legal
imaginary.
Ethnocentric indexes used to measure sexuality produce a
‘double bind’ for the queer asylum seeker to negotiate. Hesitancy in oral
testimony often undermines the credibility of the narrative, whilst ‘jovial’
recountings of experience are disbelieved for the lack of emotional
response (Millbank 2009: 10). Emotion within the tribunal context (both the
7
The Refugee Review Tribunal is an administrative body which reviews
applications for refugee status in Australia. Since it is not a legal body, it is not
bound by precedent and have wide-ranging powers as specified by the Migration
Act. Tribunal members are appointed by the government (not necessarily
lawyers).
15
decision-maker’s and the refugee’s) operates as a double bind to erase
queer refugee subjectivity. Either the individual fails to provide a ‘coherent
and plausible’ narrative because of shame or trauma, or he or she
responds in an unemotional manner which makes the accounts of sexual
persecution unbelievable. Questions of cultural difference, sexuality and
race are translated across different emotional positions (between the
tribunal member and the refugee). If emotion remains the point at which
the asylum seeker is rendered credible or not, refugee jurisprudence must
critically engage with emotion, in order to support rather than erase the
voice of the queer refugee.
Many of the current administrative decisions rely on what Berg
and Millbank define as a ‘sexualisation of the narrative’ (2009: 10). That is,
the sexual experience of the refugee is (forcefully) recollected as a
‘spectacle’ in order for the tribunal to determine the authenticity of the
asylum seeker’s sexual identity (Berg and Millbank 2009: 10). We can
consider the following rhetoric as illustrative of how particular sexual
bodies must be able to ‘know’ and substantiate sexual experience within a
normalised (Western) trajectory of intimacy and attraction:
‘The Applicant gave evidence that he had not entered into

any other long-term relationship with a male or a female.
He was not aware of gay networks in Bangladesh and had
not tried to find any. He did not frequent ‘gay parks’…his
behaviour points to a capacity to live within the norms of
his own society, culture and religion, where he has a home,
a family and employment.’ 8
The above commentary suggests that the relationship between the
applicant’s discretion and visible sexual behaviour renders the asylum
seeker to be ‘undeserving’ of protection. The tribunal decision posits that
his lack of visible experience and what ‘counts’ as experience is conducive
to ‘fitting in’. In another case, the refugee applicant expresses how he
experienced persecution in a familial and public setting for refusing to get
8
V97/06483 (1998) RRTA 27 (5 January 1998) at 7.
16
married. His experiences centre on police harassment and parental
punishment. His experiences are ‘strange’ to an Australian legal imaginary
of sexuality that focuses on the public nature of persecution. He is not
rendered intelligible because his experience is not consistent with a ‘real’
problem (Ahmed 2000: 24-5). In the recognition that a ‘homosexual
orientation’ does not dictate one’s activities, the RRT produce a paradox.
On one hand, they reject the notion that sexuality and behaviour are
causally related. Yet, they are only willing to offer protection where the
causal relationship can be established with reference to one’s ‘behaviour…
within the [Bangladeshi cultural] norms’.
Moreover, by relying on the applicant’s ignorance of a ‘gay scene’
and alleged ‘behaviour’ to ‘pass’, there is a failure to recognize the
applicant’s queer sexuality by assuming his or her ‘capacity’ to live
‘normally’ or be inactive in their sexual behaviour. As Gail Mason suggests,
such tropes of visibility are problematic because they presume sexuality is
‘open’, failing to account for the ways sexuality is structured by the ‘closet’
(Mason 2002: 80). For example, the risks associated with being ‘out’
produce particular regulatory mindsets, such as the applicant’s avoidance
of both domestic and public ‘scenes’ in order to avoid the physical (from
his father) and legal punishments (under the Bangladesh penal code) that
may be enacted (Foucault 1977b: 54).9 Ways of mapping his behavior and
appearance highlights the regulatory power of discourse to ‘hide’ particular
9
According to the International Lesbian and Gay Association (ILGA), same-sex
male and same-sex female relationships are both deemed to be illegal. Section
377 of the Penal (Criminal) Code provides: “Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal, shall be
punished with imprisonment for life, or with imprisonment of either description for
a term which may be extended to ten years, and shall also be liable to fine”. This
provision was amended in 2009 to decriminalise consensual homosexual activity.
U.S. Department of State, International Religious Freedom Report 2006, released
15 September 2006 http://www.state.gov/g/drl/rls/irf/2006/71438.htm (accessed
18/04/10).
11
The ways in which the Refugee Convention 1951 is applied is subject to how it
is incorporated into the specific law of the State. Under the Australia’s current
refugee policy and common law, as evident in the RRT decisions, sexuality is
recognised as a valid form of persecution under ‘social group’.
17
sexualities (Mason 2002: 80-82). Therefore, the above findings which value
‘visible’ behaviour presume that sexual identities structure and predicate
violence, and in doing so fail to acknowledge the ways these identities are
formed through experiences of violence (Mason 2002: 84-5).
Making the strange(r) visible
Relying on psychological literature, Berg and Millbank elaborate on how
experiences of sexuality are grounded in the private sphere. Experiences
of shame, self-repression and trauma limit the capacity to ‘retell’
narratives in a linear and consistent way (Berg and Millbank 2009: 2). For
example, sexual orientation unlike race or sex is not necessarily physically
distinct, and is managed within a space of isolation or secrecy (Berg and
Millbank 2009: 4). Managing sexuality within a context of fear necessarily
forecloses opportunities to disclose one’s identity, participate within a
community or even seek a sexual partner. Verification of one’s queer
orientation, then, becomes problematic.
In some cases, sexual visibility is what marks the body as ‘queer’
and hence the asylum seeker may confine their sexuality to a less
physically visible sphere. In this instance, it is necessary to note the
interactions of the applicant’s religion, family and the law in producing his
experience of ‘closeted’ violence. As the RRT accepts in this case, the
asylum seeker still lives with his family, but this does not disprove
sexuality or its persecution, contrary to the following finding:
‘The Applicant’s claim to be under such severe disapproval

from his family that it amounts to persecution is also put in
doubt by his own evidence and that of an Australian citizen
that he continues to live with this relative who knows of his
sexual orientation. …There was no evidence that the
relative’s knowledge of him or aspects of his life-style were
a threat to him.’10
10
V97/06483 (1998) RRTA 27 (5 January 1998) at 7.
18
By refusing to understand the differences or strategies of ‘passing’ as a
feature of persecuted sexuality in a different cultural context, the RRT
denies the incommensurability of experience and attempts to gauge
whether the experience ‘sticks’ to a hegemonic narrative of (gay male)
sexuality. Rosalyn Diprose suggests that the ‘difference’ is filtered and
modified (2005: 383). In this context, there is an over-essentialised
assumption that if one’s sexuality is an ‘anathema’ to one’s ‘family’, it will
be read as a threat to all individuals of that family. However, within this
context, it is necessary to recognise that ‘belonging’ is always a question
of negotiating discourses (Anderson 1993: 5). The RRT fails to consider
how his Islamic religion, Bangladeshi culture, and geographical location (in
this instance, family in Australia) are interacting discourses in responding
to sexual orientation. Family care or affection in Australia does not negate
the question of persecution back in Bangladesh, from different members of
his family. Moreover, the family of the ethnic ‘Other’ becomes
homogenised as a collective group that must either accept or reject his
family. No possibilities for differentiation between family members or
diversity are alluded to by the way the decision is framed. By failing to
recognise how views of sexuality and persecution of the queer body shift in
cultural contexts, the RRT renders the ‘stranger’ as unworthy of protection
but also marks them as a threat to be returned because they cannot be
part of the community of ‘real’ refugees (Ahmed 2000: 24).
Extending Ahmed’s position, the asylum seeker figured as a
‘stranger’ is out of place in this discussion. However, he is no longer
intelligible in his ‘strangeness’ because his difference cannot be
recognised within an Australian sexual imaginary (Ahmed 2000: 27). This
produces a paradoxical position: by denying the stranger mobility or
visibility in a sexual space, the tribunal is simultaneously able to dismiss
the claim as the refugee is under no real threat (and therefore requires no
19
protection) while casting the asylum seeker as ‘unthreatening’ because he
was not ‘public’ about his sexuality and does not disrupt a (heterosexual)
social order (Ahmed 2000: 30). What is not implied by Ahmed, but is
evident here, is that the asylum seeker who is seen to ‘lack’ a threat is
simultaneously expelled from Australia because he or she cannot be
negotiated within the parochial legal imaginary of what counts as genuine
persecution and palatable sexuality.
CHAPTER II: POSTCOLONIAL QUE(E)RIES
This chapter expands from Chapter I and considers the queer refugee
figure within a postcolonial framework of minority representation. While
the critical legal approaches discussed earlier provide useful points of
deconstructing refugee subjectivity through queer theory, they offer little
scope for the asylum body to ‘speak’ from its particular (material) position
of displacement. Moving from the queer feminist legal critiques of Jenni
Millbank and Gail Mason, I consider the diasporic and subaltern
positionality of refugee bodies. I argue that questions of representation
need to be refigured in relational and spatial terms which do not abstract
lived experience. That is, questions of representation must privilege the
particularity of refugee experience rather than simply focusing on how the
20
refugee occupies a space of the ‘margin’ in the administrative and judicial
process. Drawing on Gayatri Spivak’s work on the inability of the subaltern
to speak and Gayatri Gopinath’s analysis of queer diasporic desire, this
chapter concentrates on how to position queer refugee desires, intimacies
and violence recorded in asylum decisions within specific socio-historical
locations. I ask how can sexuality and persecution be represented in
culturally specific and dynamic terms within the law? In responding to this
question, I trace the possibilities of representing these desires in relational
rather than essential terms to dislodge the colonising process of
interpellation.
Queer subaltern bodies
Queer diasporic subjectivity foregrounds the incongruities between
nationalism and globalization through an analytic focus on race, gender
and sexuality (Gopinath 2005: 10). Anita Mannur and Jana Braziel define
diaspora as the historically and culturally specific dispersals and
movements of populations from one national or geographic location to
other disparate sites (2003: 3). According to Vijay Mishra, the concept of
diaspora comes to occupy a space of theoretical contestation. The
diasporic imaginary, the way diasporic subjects imagine the homeland, he
argues, is framed within an ‘episteme of real or imagined displacements’
(2007: 1). His analysis implies that the diasporic body is precariously
positioned and moves ‘between’ various cultural and social locations. In
this sense queer diasporic subjectivity articulates a complex relationship
between desire, nostalgia and ‘home’. In refugee testimonies outlined in
the previous chapter, the ‘homeland’ is not conceptualised within a
romanticised imaginary, or as a ‘frozen moment’ of an idyllic reality.
Instead, the diasporic queer bodies, displaced from the home space,
embody the disruptions and contradictions of the imagined home through
21
disparate retellings of violence, sexual attachment and movement specific
to the processes of migration (Gopinath 2005: 4).
Extending upon this analysis, it is problematic to use diasporas to
construct the notion of a stable originary or ‘authentic’ home (Quoted in
Braziel and Mannur 2003: 5; Gopinath 2005: 7). Extending this further,
Stuart Hall examines how diaspora do not have a simple retrospective
orientation to the ‘homeland’. That is, diasporas do not simply locate their
home as a moment of the past, but rather diasporic attachment becomes a
constitutive element in defining identity, often by contesting the stability
or authenticity of the home (2003: 233). While the diasporic body is
generally perceived as inauthentic or an ‘impoverished imitation of an
originary culture’, it is crucial in producing certain kinds of ethnicised
identities (Gopinath 2005: 7). In this sense, it is possible to connect the
theoretical emphasis that Mishra, Hall and Gopinath share in terms of
theorising the problematic investments diasporas have in using the home
nation as a way of negotiating their cultural differences and identities.
Queer diasporic texts, such as the recorded asylum interviews
examined in this chapter, demonstrate how queer asylum seekers must
negotiate tropes associated with Euro-American sexuality, such as ‘coming
out’ narratives, secrecy, nondisclosure, gender inversion and cross-
dressing. The following excerpt In SZAKD v Minister for Immigration (2004)
exemplifies this tendency in its need to identify homosexuality through an
abstracted caricature of how much sexual activity with men the applicant
engaged in:
‘Q161. Right, so when do you say that you first become involved in
homosexual activity in Sydney?
A Last year, a year ago. That's when there was actual contact. I did
have friendships before that but I didn't - I didn't sort of decide on
any further steps at that time. ’11
In this account, sexuality assumes significance through the lens of same-

11
SZAKD v Minister for Immigration (2004) FMCA 78.
22
sex erotic practices, while non-sexual forms of intimacy, such as
‘friendship’, are rendered less significant to the discussion. Diasporic queer
desire in this narrative, the shift from Ukraine to Australia, challenges the
ethnocentric epistemologies of same-sex eroticism (Gopinath 2005: 12).
Yet, the applicant is forced to delineate sexual experience through his ‘first
actual homosexual activity’. Questions of visibility, revelation and sexual
subjectivity are dramatised. The tribunal seeks to clarify the chronology of
sexual development, by determining when the applicant first became a
‘homosexual’, through his first sexual experience with a man.
Diasporic subjectivity also connects with the position of the
‘subaltern’. The notion of the subaltern has been popularised by the work
of Gayatri Spivak and is characterised by much theoretical debate. While
Spivak acknowledges the complexity of defining the subaltern, she
suggests that it refers to a class of individuals who lack a means of ‘social
mobility’ (2006: 28). Broadly speaking, this lack of ‘social mobility’ derives
from particular historical and social conditions of colonial oppression.
Spivak’s work responds to the lack of critical attention to the colonised
subject in humanities debates within the U.S Academy during the 1980s.
By highlighting the political (and academic) invisibility of colonised
subjects, the subaltern emerges as a figure ‘deeply in shadow’, positioned
‘in between’ spaces of culture (Spivak 2006: 32; Bhabha 1994: 2). That is,
the subaltern woman is positioned in a problematic ‘double bind’, between
a space of patriarchal nationalism and colonising Western discourses. The
female body is regulated as a symbol of cultural tradition and nationhood,
and the ‘Third World’ female body thus is produced as the perpetual victim
to be ‘liberated’ by Western neoliberal ideas of democracy (Spivak 2006:
29). Dipesh Chakrabarty adds that subaltern histories ‘have a split running
through them’ as they are conceived through a historical memory of
‘violation’ or ‘shock’ which has no space in the metanarratives of Western
23
historiographies (Quoted in Ramaswamy 1997: 3).
As a voiceless class of persons, the subaltern is located as a
negative, outside forms of speech (in both theory and politics). However,
as Mishra notes, the gender of the subaltern is oscillating, as there is a
shift from defining the subaltern as ‘sexed’ to it being referred to in
gender-neutral terms (2007: 245). It is also important to consider subaltern
desires in these terms, especially if non-heterosexual desires remain
impossible to represent. The subaltern, then, is also capable of being read
as a queer subject. In terms of theorising the queer refugee body in
relation to the theoretical scope of Spivak’s work, it is important to focus
on how the subaltern can not only be located in a patriarchal/colonial
dichotomy, but also imbricated with ideas of heteronormativity. In
developing this argument, it is important to recognise the fraught position
of the queer refugee body which is forced to articulate his/her voice or
subjectivity in a new (often Western) national context.
Negotiating sexual and diasporic attachments becomes
problematic for asylum seekers who have to claim a ‘truth’ for their sexual
identity. This difficulty becomes clear in the exchange in SZAKD v Minister
for Immigration (2004) where the Ukrainian applicant is unable to define
the parameters of his sexual identity for an Australian tribunal:
‘Q165 The other thing that I noticed particularly in your

statement was that you said, "I am still confused about my
sexual identity." That suggests to me that you are not a
person who has finally made up your mind that you are a
homosexual.
A Well, it is written like that because I have had sex with a

woman as well and I cannot say that I'm a homosexual if I
have sex with a woman - that's in Ukraine.
Q166 Yes, I saw that.
A I know - I know what it is and I can compare it.
Q168 Well, I saw where you said that you had had some
relationships with women in Ukraine before coming to
Australia but I wonder if pressing that you would care to
24
explain to me what confuses you… about your sexual
identity.
A Well, I haven't had too many contacts... I cannot say, for

instance, that I've been heterosexual until 24 years of age
and then suddenly became homosexual...’12
The rich complexities and contradictions of the applicant’s sexual
imaginary are silenced in this dialogue. In traversing this space of the ‘in
between’ (caught between a nationalist and colonising discourse) Spivak’s
reading of the ‘unrepresentable’ subaltern resonates with Gopinath, as the
queer subaltern is ‘doubly effaced’ in the ‘margins’ (1996: 200; 2006: 32).
The tribunal questions in this case posit that the applicant must determine
a finite conclusion over his sexuality. Confusion over one’s sexual
attachments and practices is insufficient to claim ‘exclusive
homosexuality’. Queer desire in this case occupies a marginal position in
both the displaced country and Australia, as the applicant is offered no
access to speak or imagine his sexual attachments. Using a vocabulary of
experience rather than identity to describe his sexual encounters,
confusion over the use of ethnocentric pathologising vocabulary arises, ‘I
cannot say…I suddenly became homosexual’. As implied by the applicant,
the need to oscillate between terms such as ‘exclusively heterosexual’ or
‘confused’ stems from an assumption it would be ‘incorrect to write
anything else’. Negotiating different sexual experiences precludes
asserting a definite sexual identity, which undermines his credibility.
Cultural literacy, or understanding Australian bureaucratic procedure,
becomes crucial. In this sense, identity must be mapped in this
administrative terrain by characterising sexuality as both fixed and
ahistorical.
In addition to narrowing sexuality, the subaltern subject in asylum
narratives risks being constructed as a marginal subject through a colonial
‘centre’ which views the home as necessarily pre-modern and repressive

12
25
(Spivak 1996: 200). Despite Spivak’s hesitancy to use this term, the
subaltern may be cast as the ‘absolute [or negative] Other’, repudiated or
silenced for its difference in both the home and Western host nation
(Quoted in Mishra 2007: 245). The Tribunal in the previous case concludes:
‘At hearing the applicant admitted to still being confused

about his sexual identity….Further at the hearing when
asked how as a practicing Roman Catholic he reconciled his
homosexuality with the Catholic faith his response was that
he had never considered the matter. This response,
together with his confusion with respect to his
homosexuality is sufficient to satisfy me that the
Applicant's claims of being homosexual are not genuine.
Having regard to the current teachings of the Catholic
Church, I am firmly of the view that a person of single sex
orientation must have at least considered their position in
the Church and whether they wished to continue practise
(sic) Catholicism.’13
Connecting religion and sexuality produces an interesting centre/periphery
dichotomy that suggests ‘single sex orientation’ is necessarily peripheral
or non-existent in the Catholic faith. By positioning sexuality difference as
something that must be reconciled within a religious centre, the RRT
position queer desire in the margin. That is, queer desire is positioned as
antithetical to Catholicism. In this position, the asylum seeker loses
credibility because they have not completely repudiated (or even thought
about) what is construed to be the oppressive religious ‘centre’ in order to
be a ‘genuine’ homosexual. While Spivak and Gopinath caution against the
reliance on using the ‘margin’ as a basis of cultural politics, this also has
implications in a legal framework. In order to ‘speak’ marginal desires, the
legal framework must resist the legacy of colonialism, patriarchal
nationalism and heteronormativity that produces the subaltern bodies as
limited and overdetermined texts (Spivak 2006: 33).
Legal postcolonialism(s)
Situating queer refugees within a postcolonial legal discourse requires an
13
26
analysis that privileges the corporeal position and erotic agency of
subaltern sexualities. This is distinct to a current monolithic legal paradigm
that characterises sexual minorities as devoid of agency. Postcolonial
theory in the context of refugee law can be used as an analytic to
challenge questions of linear history, power and colonial knowledge
production and the capability of the colonised subject to resist conditions
of subordination (Kapur 2005: 21). Unlike Spivak, who argues that the
subaltern’s consciousness is precluded from having a voice, Kapur
examines the way in which colonised subjects are capable of resisting the
conditions of their subordination (2005: 33). While such legal analysis
provides rich insights to the histories of displaced bodies, the RRT continue
to deny the sexual agency of women in determining their own imaginaries
of intimacy. In the case of 0802825 (2008) the female applicant from
Mongolia discusses her experience of domestic violence and the public
speculation she endured because of her desires thus:
‘I accept that the applicant has a girlfriend and that she has
had a close relationship with this friend since [year] I have
doubts as to whether their relationship is a lesbian
relationship as the evidence as to how they first met and their
lack of involvement in the lesbian community is of concern.
Further the applicant gave little details of the nature of the
relationship and I felt she was being evasive as to the real
basis of their friendship.’14
Furthermore,
‘…despite claiming she was a lesbian that [sic] she had no

other contacts with lesbian groups or other lesbians after
her initial contact with her partner in [year].’15
While the applicant in this case is determined to be a refugee, the
association between her claim to a lesbian identity and the lack of
involvement in the purported public ‘lesbian community’ limits her
credibility. As the applicant did not choose to disclose her sexuality or
14
0802825 (2008) RRTA 328 (11 August 2008) at 92.
15
Id, at 65.
27
travel with her partner, the RRT define their intimacy as platonic rather
than sexual. Moreover, being unable to verbally communicate with her
partner who spoke a different language undermines the applicant’s
credibility, as speech is privileged by the RRT as foundational to romantic
intimacy. Her evasion of the questions is then understood by the RRT as
indicative of non-genuine lesbian sexuality. The ‘real basis’ of the
relationship is limited strictly to a friendship that is misconstrued in the
applicant’s home as homoerotic.
Moreover, the tribunal goes on to position queer female intimacy
within the spectrum of heterosexual domestic violence thus:
‘I accept that it may be that her husband and members of

the community may have misinterpreted the close
friendship as a lesbian relationship and that she may be
perceived as a lesbian in the Mongolian community as a
result of her husband’s conduct. It is often the case that
women affected by domestic violence become involved in
close relationships with other women as a reaction to the
violence perpetrated by their family members.’16
The experience of female-to-female intimacy becomes rendered intelligible
both in the discursive and material space of a violent heterosexual
narrative of domestic abuse. Rather than acknowledge the queer nature of
female intimacy, violence perpetrated by her husband normalizes the
relationship as one of a supportive friendship. Any perception of this
relationship as ‘lesbian’ is rendered a ‘misinterpretation.’ This situation
exemplifies Gopinath’s concept of ‘impossibility’ which characterises the
unintelligible queer female subject position in national and diasporic
politics. Linking this concept with that of Spivak’s (sexed) subaltern we can
see how queer female intimacy is effaced within a colonising space that
cannot imagine its existence, or does so through proximity to patriarchal
heterosexuality. The applicant is left with no representational space to
articulate her desire.
16
Id, at 93.
28
Heteronormative knowledges on ‘normal’ sexual identity render
heterosexual acts typically invisible while producing same-sex activity as
public and transgressive (Millbank 2002: 12). However, same-sex kissing in
public could be tantamount to such ‘indiscretion’, which is subject to a
normalising heterosexist gaze (Foucault 1977b: 231-3). The rhetoric of
‘discretion’ subjects the body to a ‘normal’ way of acting (Mason 2002: 82;
Millbank 2002: 5):
‘The Applicant’s particular claim has been that he should

not be returned to Bangladesh because he would be unable
to pursue a homosexual life-style there. If by that he means
overt sexual activity, then that i(s) [sic] so.‘17
Social constructions of gay male sexuality and intimacy reify this process
of (mis)recognising the ‘stranger’ in decision-making. This process
emerges in relation to ‘homonationalism’ wherein some ‘safe’ gay bodies
are allowed into a national space, whilst others are expelled (Puar 2007: 1-
3). That is, ‘assimilationist’ forms of intimacy, which are discreet or mimic
matrimonial kinship bonds, are understood as the tenets for (proper)
sexual citizenship. ‘Homosexual lifestyles’ and ‘overt sexual activity’ (such
as kissing in public), however, pose a danger. These public and deviant
‘lifestyles’ must be guarded against by the state.
In the following case, a Nigerian applicant is granted asylum based
on the ‘genuine’ emotional character of his narrative and his determination
to remain monogamous to his partner:
‘The Tribunal found the applicant to be an open, consistent

and credible witness. He spoke of his sexuality with
candour and clarity and some sadness, in a way which
convinced the Tribunal that he spoke from personal
experience. The Tribunal did not put weight on the fact that
the applicant had not been in a homosexual relationship in
Australia, and did not spend time at gay clubs. The Tribunal
accepted the applicant’s argument that he was hoping to
be reunited with a partner from Nigeria, and that he did not
enjoy nightclub culture. His sadness was very evident, at
17
Ibid.
29
having to abandon the seminary and his dreams of
becoming a priest, because of his sexuality, and in this way
letting his family down.’18
When the applicant laments their sexual orientation as opposed to the
persecution itself, the claim is judged to be genuine and believable. By
scripting a narrative that conforms to monogamous sexual citizenship, the
applicant becomes ‘credible’ and ‘open’. By ‘letting his family down’ and
‘abandon(ing) the seminary’, sexual attachment becomes the site of
melancholia rather than persecution. The rhetoric also more broadly
suggests that once desire is contained, the queer refugee can be
assimilated.
Also notable is the evidentiary paradox this reasoning signals,
which (re)situates the asylum seeker in a subaltern position. If an
individual is clearly citable as ‘gay’, then they are too transgressive to be
incorporated into the community. Yet, if they ‘body map’ their sexuality
adequately, they are refused recognition (as they remain ‘invisible’) for
their sexual preferences as they can no longer be hailed or cited as gay or
lesbian (Mason 2002: 81).
Geographies of sexualities
Contesting the paradoxical constructions of sexuality in public or private
spheres requires a focus on the geographically distinct manifestations of
sexual identity. Effectively, administrative and judicial decisions must
interrogate the space between the knower and the ‘known’ object (Razack
1999: 37). In situating the storytelling process for asylum seekers, there
needs to be greater jurisprudential emphasis on how the ‘closet’ operates
in diasporic contexts. It is not simply a fixed structure, but a shifting mode
of symbolic violence in the self-regulation of queer subjectivity. As Eve
Sedgwick argues, ‘the closet is the defining structure of gay oppression
18
0902348 (2009) RRTA 572 (1 July 2009) at 118.
30
this century’ (1990: 7). It operates through the performance of silence
(Sedgwick 1990: 3). ‘Coming out’ of the closet per se, involves a speech
act, one situated in specific socio-historical circumstances with different
effects depending on how the speech acts are rendered into meaningful
statements of sexual identity.
Queer subjects occupy fraught positions in the ‘closet’. Michael
Brown, in his work on epistemologies and geographies of the ‘closet’, notes
that queer subjects are concealed or shamed into managing their visibility
(2000: 1). That is, heterosexist and homophobic discourses of family,
sexual deviance and gender roles are used to normalise and marginalise
queer identities. In the case of 0802825 (2008), the female applicant from
Mongolia exposes how the discourses on gender and homophobia within a
domestic or familial context made ‘coming out’ as a lesbian particularly
fraught:
‘She told me that on [date] her husband came to her home

and raped and beat her. The reason he did this was
because she had refused to give him money. She fears that
he will repeat his assault if she returns and this is what
made her decide to leave Mongolia…She also feared that if
it became known that she was a lesbian that her child
would be taken away from her and no one would look after
the applicant’s interests.’19
This discussion of persecution dislodges the public/private divide in the
law. For women, who are positioned within the domestic sphere as victims
of violence, the matter is deemed to be a ‘family issue’ and not a matter
for state intervention. Sexual practices (or being marked as a lesbian)
carry the threat of displacing motherhood: the applicant risks losing her
child. Economic pressure and physical violence also coerces the applicant
into managing her sexual visibility, enduring her marital harassment to
avoid being marked as a lesbian in a public context. In managing the
applicant’s refusal to become public about her abuse with the police, the
19
0802825 (2008) RRTA 328 (11 August 2008) at 41.
31
marital home becomes a material rather than a metaphorical closet by
policing same-sex desire (Brown 2000: 41). Such desire, if rendered public,
would threaten her legal status as a capable mother.
The closet does not feature as a fixed boundary of sexual identity.
Gay and lesbian subjects are never truly ‘in’ or ‘out’ of the closet as it is a
negotiated space where the subject manages whether they are identified
as gay or lesbian (Mason 2002: 95). Moreover, what is alluded to in
Brown’s analysis and extended further by Manalansan is a refusal to
accept an ethnocentric or ahistorical epistemology of the closet. Rather,
they examine the praxis of the closet and trace the spatiality and
geographical specificity of how queer bodies relate to their own ‘closets’.
The following case of same-sex female relationships in Vietnam
demonstrates the way the ‘closet’ relates to culturally specific forms of
intimacy:
‘For a long time I didn't have any relationship mainly due to

the fact that I was afraid to go through the same things all
over again. In spring [year deleted] I met [name deleted]
and we started seeing each other as a couple. Our situation
was not better than before, meaning, we had to pretend to
be just friends. We would mainly see each other outside the
suburb where I lived as I have already had problems
before’.20
In this case, the applicant was a witness to physical and verbal assaults
following her friend’s first lesbian relationship. Subsequently, she was
coerced into keeping her intimacy with her partner discreet to avoid similar
public harassment and physical violence. It is interesting to note that
friendship becomes a strategy of bodily management, to avoid being seen
as ‘queer’ and evade the dangers of being marked as a lesbian. Intimacy
becomes possible through interactions outside the local neighbourhood
community. This reframes Sedgwick’s work on the closet as enabled
through the ‘unrationalised coexistence of different models during the
times they coexist’ (1990: 47). Effectively, such analysis begins to render
20
071862642 (2008) RRTA 40 (19 February 2008) at 20.
32
the queer subaltern subject a product of multiple and shifting attachments
to their experiences of sex and violence. A consideration of the diasporic
dimensions of the closet- produces what Ben Golder terms a ‘poetics of law
reform’ that refuses to confine the body to a static position in the legal
system (2004: 56).
In drawing together these theoretical workings of the closet, I find
it useful to connect Gopinath’s reading strategy of ‘retrospectatorship’ and
to the queer refugee body. For Gopinath, this term represents the ways in
which queer subjects reconstruct their relationship to the ‘home’ by
identifying the ‘home’ as a source of queer desire from a present position
of dislocation (2005: 97). Gopinath gestures to the ways in which diasporic
bodies are implicated in states of ‘reimagining’ identity. In order to extend
these questions as they relate to refugees, it is necessary to think of how
movement refigures the self-identification of the queer refugee body
(Brown 2000: 48). That is, queer subjectivity shifts how it imagines its
desires depending upon the space in which the body is positioned. 21 Brown
implies, and Gopinath extends the argument, that it is problematic to read
the shift away from the homeland as a rejection by the refugee (2000: 45;
2005: 98). Rather, it is necessary to think of how the ‘home’ space is
refigured in the subjectivity of queer asylum seekers. The closet becomes
a fractured space of competing interests and identifications (Sedgwick
1990: 70).
Persecution in the home, then, becomes a complex question of a
spatial orientation. These orientations are reflected in how a queer body
inhabits a heterosexual space in the case of homophobic violence (Ahmed
2006: 11; Mason 2002: 39). Therefore, being persecuted should be a
question of how violence is oriented within a particular cultural and
21
Place is a geographically or ontologically fixed location. Space, however, is fluid
and contingent on the inheritance of particular bodies and actions in any given
moment (Ahmed 2006: 42).
33
domestic space, instead of focused simply on the visible or public
consequences such as the injuries sustained from police harassment or
arrest. Rather than appreciate this interaction, however, the RRT reduces
one’s (public) sexual activities as solely constitutive of one’s sexual
persecution. This reasoning is exemplified in the earlier case (V97/06483)
of the Bangladeshi man, who endured violence within the home:
‘Activities which could lead to punishment amounting to

persecution: I have considered whether the mere fact of
being a self-identified Bangladeshi national of a
homosexual persuasion is sufficient to raise the prospect of
a ‘real chance’ of persecution. I am not persuaded that this
is so. Homosexual orientation may take many forms. It
does not of itself indicate that a person is sexually active
just as heterosexual orientation of itself is not indicative of
an active sexual life. It is sexual activity which provokes the
reaction of the law.’ 22
While the applicant in this case did not engage in what would be ‘overt’
sexual activity, the RRT problematically construe the word ‘orientation’ and
‘activity’ in solely a public sphere. As Ahmed suggests, orientation is a
question of the familiar; what remains comfortable or in domestic (private)
context can engender persecution (Ahmed 2006: 57). It need not be public
to ‘provoke’ the reaction of the law. For those queer subjects who do not
live visible sexual lives or conform to Western ideas of promiscuous sexual
behaviour, their difference can still be persecuted. What is considered
‘visual’ in one culture can be differently perceived in another. For example,
refusing to marry in a Western context does not impute a homosexual
orientation, yet in Islamic cultures such as Bangladesh, such an
assumption is often made. Persecution thus manifests in a domestic
sphere. By failing to understand how cultural contexts produce different
experiences of persecution and sexual regulation, the asylum seeker body
is misinterpellated (Ahmed 2000: 25-6; Gatens 1996: 104). The queer body
within this administrative determination is deemed not to conform to a
22
V97/06483 (1998) RRTA 27 (5 January 1998) at 8.
34
Western understanding of sexuality and is hence not seen as a victim of
violence.
In fleeing from the nation as ‘home’, queer refugees rework notions
of the home within a diasporic space. Queer subjects seek to transform the
logic of their persecution in a national context not by repudiating their
home, but by negotiating how their desires are implicated directly in those
contexts. Merging a queer and diasporic theoretical framework to
understand refugee persecution challenges legal theories which suggest
that queer refugee bodies should suffer from ‘national amnesia’ or seek to
erase the home from their identity. In a recent case, a male applicant from
India recounts his experiences of sexual attraction and intimacy regarding
his displacement:
‘Although I was happy to finally be in a country where I

could be open about my homosexuality, it does not mean
that overnight I would turn into a promiscuous person
willing to engage in homosexual activities with any man
that I met. I do not think it is right to assume that, just
because I am gay, I should be expected to have had more
than one gay encounter over the course of three months.
Most of the people with whom I had sexual relationships in
India were men I had known over a period of time, whom I
trusted, not strangers I met on the street. Moreover, I still
keep in contact with [Person N] and I still have feelings for
him so it is difficult for me to be with other men.’23
The applicant resists the RRT characterisation that same-sex attracted
diasporic men must be able to express their sexuality through engaging in
a greater quantity of ‘homosexual activities’ when they arrive in Australia.
Romantic intimacy and the ‘home’ nation occupy a space of nostalgia for
the applicant. He does not seek to repudiate the ‘home’ in order to
embrace a neo liberal Western notion of the free or promiscuous gay male
subject. The applicant’s ‘home’ (the seminary where the applicant studied
and lived in India) while remaining a place of enduring harassment, was
also the source of the asylum seeker’s intimate relationships with men. As
23
0907630 (2010) RRTA 133 (29 January 2010) at 79.
35
his partner remains in India, the home remains a space of erotic and
romantic attachment. Hence, the applicant is unable to completely
dislocate his subjectivity from his country of origin. Manalansan
corroborates Gopinath’s caution against the queer Western agenda to
liberate non-Western queer bodies from what is constructed to be a purely
homophobic ‘centre’ (2003: 212). By using postcolonial and queer
diasporic analytic concepts, Australian jurisprudence should seek to
contest the notion that queer refugees are (or should be) completely alien,
marginal or outside the community from which they depart (Gopinath
2005: 15). Instead, as the applicant in this case evinces, queer desires and
pleasures are implicated within particular spaces of the ‘home’.
Critical jurisprudence in Australia currently focuses on how gay and
lesbian subjectivity operates, however distinctly, on a continuum of
persecution between public and private spaces. While it is important to
recognise the non-normative position of queer subjectivity in different
national contexts, this argument must extend beyond the construction of
the non-Western home as a completely violent and repressive space.
Framing different diasporic sexual attachments, understandings of
violence, and operations of the ‘closet’ is key in representing culturally
disparate experiences of persecution on the basis of sexual orientation.
CHAPTER III: AFFECTIVE NARRATIVES

36
To understand how diasporic movement, experience and space reshapes
sexual subjectivity gestures we must go beyond discursive accounts.
Refugee law acknowledges this by placing emotion as a legal requirement
for granting asylum. A ‘well-founded fear’ of persecution must be
established in order to be granted asylum under the Refugee Convention
1951. Negotiating affect in the law, however, is complex. Extending the
postcolonial analytic, this chapter examines the uses of emotion as a focal
point for thinking about incommensurable and ‘moving’ bodies. Nicola
Lacey identifies the problematic of affect as central to debates in feminist
jurisprudence: affect in the law is ambivalently positioned between offering
constant critique and identifying a subject position to assert a rights claim
(1998: 168). In exploring this tension further in refugee law, it is necessary
to explore the relationship between space, movement, consumption and
the ‘social group’ definition in refugee law. I combine Rosi Braidotti’s
(2004) feminist ethology on nomadic subjectivity with Sara Ahmed’s (2004,
2006) queer phenomenological work on emotional and sexual
orientations/habits to consider how fear and violence produce, rather than
repress, queer bodies and spaces. Linking erotic agency and sexual
subalterneity with respect to queer asylum seekers provides greater scope
for articulating the specific affects of violent displacement without using

24
essentialising or victimising rhetoric. It is problematic to displace the
feeling and the agency of asylum seekers in the legal narratives.
Conversely, attempting to construct a universal politics of emotional
24
Feeling, emotion and affect have different epistemological histories, and I use
these concepts to problematise the ‘objective’ rationalities that determine
sexuality and persecution in Australian asylum law. Affect is located within the
Deleuzian/Spinozist theoretical framework as an embodied or intersubjective flow
of ‘prepersonal feeling’ (Braidotti 2004: 59). As Eric Shouse elaborates, affect can
be understood as the moments of non-conscious experience or unstructured
potentials (2005: 1). Emotion, however, is more of a cognitive social phenomenon.
Sara Ahmed frames emotion as a distinctive political and social marker that
‘sticks’ to a body or community, often produced through subject-object relations
(2004: 15).
37
orientations or sexual consumption is a futile exercise. In order to move
beyond such an impasse in the law, I argue that fear, sexuality and injury
should not be confined to individual bodies, but must be considered as
broader articulations of collective spaces and communities.
Nomadic belongings
Accounting for ‘sexual’ persecution in terms of the ‘social’, as stipulated in
case law interpretations of the ‘social group’ status in the Refugee
Convention 1951, requires rethinking how queer refugee subjectivities
come to be regarded as ‘sexual’. In social and legal theory discussions of
citizenship, the sexual has often been omitted (Bell and Binnie 2000: 67).
Moreover, debates in framing ideas of the sexual, as erotic attachments or
relations, are differentiated in cultural studies and positivist legal or social
theory. Bell and Binnie render problematic the distinction that a cultural
studies approach to sexuality does not interrogate the social relations,
capital distributions and structural inequalities that shape sexual
subjectivities (2000: 68). Rather, as Elspeth Probyn argues, questions of
the social, sexual and political must be understood through
interconnections, not compartmentalisations (Quoted in Bell and Binnie
2000: 68). Likewise, in feminist jurisprudence, reframing legal
representations in relational or contextual terms, rather than through a
polemic of critique or (fore)closure, produces a more innovative political
strategy (Lacey 1998: 186). In refining how the social and the sexual
(should) come to matter in political and legal formulations of the refugee
subject, I reconsider Rosi Braidotti’s conception of nomadic ethics within
asylum jurisprudence.
Braidotti offers a useful philosophical elaboration upon Gopinath’s
argument of queer diasporas by suggesting that these ‘in between’
subjectivities may be understood as ‘nomadic’. Braidotti argues that
nomadic subjectivity ‘entails a total dissolution of the notion of a center
38
and consequently of originary sites or authentic identities of any kind’
(1994: 5). That is, there is no universal centre or authentic subject position.
In positioning nomadic subjectivity as one of ‘transitory attachments and
cyclical frequentation’, Braidotti refuses to ground the subject (1994: 5).
Unlike Gopinath, who suggests that diasporic identities are refigured and
anchored through nostalgia, the nomad does not define herself through a
retrospective attachment. Despite the different focus on attachment, both
theorists gesture to the importance of location and movement as a focal
point for rethinking the formation of national and cultural boundaries.
In tracing the relationship between culture, movement and sexual
subjectivity, the Nigerian asylum seeker in 0902348 articulates how sexual
identity emerges through the negotiation of spatial relations and actions,
‘He said that abandoning his [seminary] training and not

realizing his childhood dream of becoming a priest, was a
huge “coming out” of his homosexuality. He said this is why
he left the country…He said he does not feel he needs to
make a public statement on his sexuality to show that is how
he lives. He said it is a private and sensitive part of his life.’25
As the Nigerian applicant’s testimony suggests, sexual identity is not
performative (as a speech act), but rather emerges through action and
movement. By refusing to become a priest, deferring his studies, and
moving countries, his sexuality becomes actualised. That is, sexual
possibilities emerge through the applicant’s intimate physical negotiations
of space, rather than through his claiming an authentic sexual identity in a
public forum. If the nomad is a creative entity, an ‘affirmation of the
unalterably positive structure of difference meant as a multiple and
complex process of transformation’, then the asylum seeker is affirming
sexual difference through spatial relocation rather than a ‘coming out’
trope of a speech act (Braidotti 2006: 145). Nomadic subjectivity,
therefore, emerges as a state of multiplicity and becoming.
Braidotti critiques the argument that identity is formed through a
25
0902348 (2009) RRTA 572 (1 July 2009) at 38.
39
dialectic, such as the centre/periphery model used in Spivak’s work. In
tracing the formation of the sexual refugee subject, the era of globalised
postmodernity has produced ‘a more dynamic, non linear and less
predictable pattern...of internally contradictory options’ (2006: 44). The
applicant dislodges the centrality of confessional tropes in order to
articulate his sexual attachments, expressing, ‘he [applicant] does not
need to make a public statement on his sexuality to show that is how he
lives’. Sexuality is embodied in action and space, rather than confession or
speech. In privileging action and space as self-identified markers of queer
sexual subjectivity, sexuality emerges for bodies displaced through
persecution in spatial rather than ontological terms.
Nomadic ethics relates to how queer diasporic subjects negotiate
sexual attachments and are expected to ‘consume’ in new locations, as for
this Indian applicant recently arrived in Australia:
‘The DIAC delegate further stated that it would be "expected"

that I would fully embrace the freedom to engage in
homosexual activities in Australia and that I had "provided no
credible evidence that [I] had any sexual relationships with
men in Australia since [my] arrival over three months ago". In
my previous statement, I mentioned that I met a man once at
an RSL club in [Australia]... Again, I did not feel entirely
comfortable talking about it.’26
Consumption of sex and pleasure in particular recreational spaces
becomes central to narratives of sexual credibility. Braidotti critiques the
parochialism of neoliberal understandings of consumption that privilege
the fixed autonomy of the subject, and advocates a politics of ‘rhizomic
interventions’ and ‘interconnections’ (2006: 69; 1994: 35). Such an
intervention is useful in thinking of the subject as dynamic, a site of
multiple belongings. In this case, the applicant gestures to a lack of
comfortability in discussing intimate contact with other men in a context
where public (read: governmental) articulations of sexuality impede
26
0907630 (2010) RRTA 133 (29 January 2010) at 77.
40
(sometimes violently) rather than liberate individuals. While some sexual
subjects are enabled to partake in the kinds of capital and social ‘freedom’
implied by the DIAC delegate, in making such a claim the queer subject
becomes reducible to a liberal consumer citizen, with the capacity to ‘fully
embrace homosexual activities in Australia’. However, the lack of social
mobility of some queer bodies is not attributed to racial, class or diasporic
differences, but is ascribed to a lack of credibility for failure to conform to
‘expected’ sexual norms.
As the asylum seeker responds:
‘Most of the people with whom I had sexual relationships in

India were men I had known over a period of time, whom I
trusted, not strangers I met on the street. Moreover, I still
keep in contact with [Person N] and I still have feelings for
him so it is difficult for me to be with other men.’27
Contradictions become central to the applicant’s formation of identity.
While the promise of sexual freedom encourages transnational movement,
‘freedom’ remains dehistoricised in the tribunal understandings of this
term. The applicant refuses the ethnocentric notion of the sexual being
located in terms of consumer politics. That is, being willing and able to
have multiple sexual partners. By placing (sexual) identities as a fixed
narrative that needs to quantify sexual practices, the relationship between
the cognitive, intellectual and affective becomes muted (Braidotti 2006:
156). The specificity of the affective body becomes silenced in order to
render sexual freedom intelligible through a lens of promiscuity. In
responding to the corrosive force of these neo-liberal approaches to
identity and liberation, Braidotti considers the ‘active’ possibilities of
affinity or shared ‘intensity’ as a way to negotiate the fraught subject
positions of the nomadic body (2006: 56). That is, while the queer subject
in this case shows a willingness to leave the home and seeks asylum in
27
Id at 79.
41
Australia, there is an emotional investment in the home space that cannot
be disavowed: his feelings for his Indian ‘partner’. The asylum seeker in
this case is also enmeshed in a transitional space of intimacy, negotiating
sexual attachments in Australia while also melancholic over his partner in
India.
Examining neoliberal ideas of consumption, refugee bodies are
produced as discrete objects in an administrative and judicial process of
determining persecution. However, using a phenomenological lens, Ahmed
suggests the object is never an isolated presence and to position it as such
erases its history of arrival (or its production). Ahmed draws upon the
notion of ‘commodity fetishism’ to highlight how histories of ‘work’ which
fashion the object are erased in its fetishisation (2006: 43). Commodities
become both the transformation of labour and the form of that labour.
In the context of queer refugee narratives, this transformation of
labour is reflected in the ‘scripting’ of testimony where applicants are
forced to account for their experiences within a mould of a colonising or
stereotypical conception of sexual identity. Specifically, this is constructed
as the active participation in sexual publics. The narrative of genuine
sexuality for the RRT relies on forms of consumption, such as visible (read:
‘out’) presence in a ‘scene’ or community. In the case 0907630, the Indian
applicant notes,
‘The DIAC delegate stated in the decision record that I had

very limited knowledge of and no interaction with the gay
subculture in India and that she was not satisfied that I am a
homosexual. In India, I was too afraid of seeking out the gay
subculture. I had already been threatened and harassed and
did not want to place my life in any more danger. I was not
even aware that there was a gay subculture as it is not
widely advertised. There were no gay publications such as
magazines and books available in newsagents where I lived,
that I could just buy and find out about gay events. Just
because I did not try to engage in that culture does not
mean that I am not homosexual.’28
28
0907630 (2010) RRTA 133 (29 January 2010) at 37.
42
Knowledge of sexual cultures is crucial to the authenticity of this claim. In
situating the queer refugee body in a particular national location, the DIAC
decision-maker generates the notion of a ‘gay subculture’. Without
specifying the parameters of what this means, the applicant is refused
credibility because of his lack of ‘interaction’ with it. Placing the body in a
space of subculture, the history of the body, its arrival in a space, is
erased. It does not matter how the body occupies this space (Ahmed 2006:
42). Rather, it is the mere presence of the body that makes it valuable (as
a source of sexual authenticity). While the vague presumption of a
‘subculture’ fails to consider the way sexualities are negotiated in non-
consumer or public zones, it also assumes bodies are capable of universal
access to these zones. As the applicant points out in his statement, such a
culture, if existing, ‘is not widely advertised’. He notes that ‘there were no
gay publications’ in his home to negotiate those kinds of interactions. By
producing the queer refugee body as a static object that must be
connected to particular kinds of public social space, the differences
between sexual subjectivities are fetishised or erased.
The way questions of public consumption or ‘scene’ participation
preoccupies the legal reasoning of the decision-maker, reflects the
orientation of the RRT to a discourse of sexuality that privileges both
whiteness and the middle class. Relations of power, including whether one
is ‘public’ about one’s sexuality, are closely tied to economic structures
and the organisation of labour. Queer subjects in asylum law are, however,
understood as ‘equal’ insofar as they are understood to have equitable
access to representing their desires, regardless of their socio-economic
background. As Dennis Altman argues, consumerism poses a ‘new form of
social control’, positioning sexual identity as a coherent and discrete
category that emerges from public consumption (Quoted in Cover: 51).
Bodies are understood by the RRT in terms of how they take up space in
43
places of consumption. Questions range from the purchase of publications
to participation in a club scene. While whiteness brings certain objects into
reach, failing to understand the cultural and historically distinct position
(and history) of non-white bodies, the RRT expects sexuality to be a
codified property, reproduced in public institutions (Ahmed 2007: 154). By
rendering public ‘interactions’ (read: consumption) in terms of clubbing,
gay media or social networking, these habits of questioning shape the
legal discourse as one which equates sexuality with consumer capital
(Ahmed 2007: 153). If a queer body is not a habitual clubber or consumer,
it risks expulsion from a legal and administrative system which has made
consumption habitual to authentic (homo)sexual identities.
Moreover, while men are enabled in space as public consumers,
refugee women are often characterised through rhetorics of victimisation.
In responding to some liberal feminist projects to ‘empower women’, Kapur
notes the ways in which colonised women remain ambivalently positioned
as victims and strugglers within a heteropatriarchal discourse (2005: 27).
In negotiating this often-ambivalent subject position, Kapur suggests that
erotic desire becomes a means by which bodies are able to exert a ‘partial
agency’ rejecting both the victimised or phobic representation of their
bodies (2005: 91). As the following asylum seeker from Vietnam notes,
intimacy in the home is not solely one of repression and violence, but a
negotiation of pleasure and risk:
‘We had to be extremely careful about not being seen as a

couple as it is unthinkable in Vietnam to be in a homosexual
relationship. We had to hide and pretend to be just friends.
We would meet at our friend's places... I used to get up early
every morning to make breakfast for her. I lived near her
place of work…we were in a very happy and stable
relationship for many years. The only cloud was that we had
to constantly hide even from our closest friends or family.’29
Situating social space is crucial to understanding the way sexual
subjectivity emerges for the applicant. The ‘friend’s places’ are

29
071862642 (2008) RRTA 40 (19 February 2008) at 8 and 9.
44
simultaneously figured as enabling intimacy (providing a location to meet)
and threatening to repudiate it (inability to ‘tell them [applicant’s friends]
about our relationship’. Emotion circulates disparately in the testimony:
from anxiety over the ‘unthinkability’ of being discovered to an affective
revelation of joy in being able to ‘get up early every morning’ and make
breakfast for her partner. As Homi Bhabha reminds us, this ‘ambivalent
mimicry’ makes ‘progress and freedom’ desirable to the colonised subject
(1994: 89). Operating differently in the context of culturally different
sexualities, the applicant desires ‘freedom’ (in seeking asylum) to
articulate her intimacies because she is victim to a homophobic gaze.
However, the threat of violence (and subjugation of particular desires) also
enables the particular kinds of (private) intimacies the asylum seeker
engages in. In negotiating this ambivalence, the queer (female) refugee
subject is able to exert an ‘erotic agency’ over her desires, which is
negotiated in the context of managing her sexual visibility. While the
subject internalises a homophobic gaze it is necessary to que(e)ry whether
the queer individual must mimic the idea of having a desirable public
sexual identity in order to be considered a credible refugee subject.
Spatial and emotional orientations
In bridging the affective and discursive terms of the law, emotion offers a
useful way of positioning queer refugee subjectivity. In the (post)colonial
encounter between a tribunal and an asylum seeker, Trinh T. Minh-ha
poetically captures how the narrative of otherness remains elusive, a force
of ‘unmaking’ the subject (1989: 54). Trinh exposes how the individual in
the moment of narration becomes an affective presence, with no fixed
delineated subject position (1989: 54). Therefore, accounting for the self is
an articulation of who rather than simply what one is. In this sense, there is
an oblique relationship not only of the self to its agency, but also to how
45
the uniqueness of the body is rendered an object of an administrative or
legal gaze (Butler 2001: 22).
Framing Trinh and Butler’s problematic on the self-narrating
subject in another theoretical lens, Probyn offers an interesting
problematisation of belonging on the ‘outside’, where relations of proximity
rather than public/private or centre/margin dichotomies determine how
desire is conceived and articulated (1996: 11). By placing identity as a
relationship between movement and transformation in an affective
context, there is greater possibility for thinking about how diasporic desire,
sexuality and violence can be (re)experienced in different spatiotemporal
locations. In the following case, the applicant from Lebanon recounts his
desire to lead an ‘open gay lifestyle’, however, this is met with some social
difficulties:
‘As to whether he had been anywhere in Australia where

homosexual men, whether Arabic-speakers or not, socialised,
he said that he had gone 2-3 times to Place E but nowhere
else. He said he was not used to the atmosphere there.’30
Moreover, the applicant notes:
‘As to whether he had had any contact with homosexual men

in Australia, he said he had not met anybody. He added that "I
don't like the system here - the way they dress".’31
While the asylum seeker easily articulates a desire to be free from
persecution, it does not necessarily follow that living as a ‘gay man’ is
without problems. As the applicant notes, despite frequenting a particular
social venue, as he was ‘not used to the atmosphere’, his social and sexual
agency is limited. However, the applicant also demonstrates his own erotic
agency, echoing Kapur’s arguments, by refusing to engage in sexual or
intimate relationships with men in Australia. Identifying queer sexual
culture in Australia as a peculiar sartorial ‘system’, he distances himself
30
1000152 (2010) RRTA 223 (19 March 2010) at 57.
31
1000152 (2010) RRTA 223 (19 March 2010) at 54.
46
from it. Desires are both articulated (in the case of living an ‘open’ life) and
fractured (in his lack of sexual desire for the men and his inability to
engage in the available social ‘atmosphere’). Despite being a queer subject
on the ‘outside’, his sexual desire is not peripheral; it is produced through
different relations of proximity between the applicant and other bodies and
spaces (Probyn 1996: 11). Tracing the complex movement of sexual
attachment in Australia demonstrates the plural concept of sexual
orientation. One’s movements in space (re)shape experiences of sociality,
sexual identity or desire.
Mapping nomadic (sexual) subjectivity in the law, therefore, is a
difficult project when desire cannot be fixed. Gender, race, class and other
social categories intersect and produce multiple subject positions. These
transversal subjectivities, while exceeding linguistic terms, however, can
be ‘figured’ as a landscape or cartography of experience. However, as
Braidotti aptly notes, the current representational structures of identity
and language often fails to adequately place these complex subject
positions into a social (or legal) imaginary or cartographies (2006: 85). In
thinking about how privacy is articulated in the law, Berlant suggests that
privacy must be situated as a zone of intimacy and feeling (1999: 70).
Braidotti notes that an affective mapping or illumination of such
coordinates would require ethical, geological and technological rethinking
of the subject. As Anna Hickey-Moody notes, mapping, unlike tracing,
maintains the malleability of the social body by refusing to fix points of
identity (2009: 37).
Queer subjectivity, then, is malleable. Spaces not only expand the
body, but also are produced in the inheritance and actions of bodies
(Ahmed 2006: 11). In exploring the complex spatial and historical
construction of sexual subjectivity, consider the following RRT response:
‘Indeed the applicant’s oral evidence to the Tribunal was that

he had had no relationship with anyone who shared his sexual
47
orientation since he left school – a period of over 20 years,
spanning his entire adult life to date - either in Lebanon or in
Australia. He does not claim ever to have spoken to a
homosexual since then. He asks the Tribunal to accept that
this was because he was, as he has said, a “closet gay”. In my
view this is implausible, and is far more consistent with his
being heterosexual.’32
The applicant also adds,
‘I tried to fight this inside of me. I was trying to change myself.

I asked myself why I was different to everyone.’33
Lack of intimate contact (with those of ‘shared sexual orientation’) for over
20 years in this testimony is understood as making him ‘more consistent
with…being heterosexual’. The (sexual) history of the body is made
relevant and the lack of social relations in public (or private) space refuses
the ‘plausibility’ of his ‘homosexual’ orientation. However, as Ahmed
reminds us, spatial orientations, defined as relations of proximity and
distance, are affected by other positions such as race, gender and class
(2006: 12). While dismissive of the ‘closet’ and the way sexual shame
limits bodily/sexual mobility, the tribunal situates non-heterosexual bodies
as capable of extending in social space the same way as heterosexuals.
Orientations and affects are effected through the repetition of actions
(Ahmed 2006: 23). Heterosexuality acts as a ‘straightening’ device that
orients the objects of sexual desire in particular spaces (Ahmed 2006: 23).
In this particular case, the applicant situates his desire as something
‘different’ and attempts to ‘fight this’ in order to ‘change’ and to fit in ‘line’
with the assumed heterosexual others (implied in the reference to
‘everyone’). By becoming a queer object, being effected by the bodily
extension ‘everyone’ else, the applicant loses his sense of bodily privilege
or integrity in space.
However, ironically compared to previous decisions, the reasoning
in this case problematically concentrates on sexual practices as the sole

32
1000152 (2010) RRTA 223 (19 March 2010) at 81.
33
Id, at 49.
48
basis of determining sexuality. The RRT imply that the applicant’s history is
‘consistent’ with being heterosexual because he lacks (deviant) sexual
experiences with other ‘homosexuals’ who ‘shared his sexual orientation’.
History and space only become relevant where it can be quantified or
rendered public as deviations to a ‘normal’ (invisible) heterosexual
orientation. Emotion, in this case, anxiety over one’s desire, is crucial to
the formation of particular (psychic) identities. Ahmed’s argument applies
to the way in which pain or injury is transformed into a fetish identity. That
is, the perceived pain or suffering is removed from its history of
production, and commodified into a discrete entity with no spatial or
temporal character (Ahmed 2004: 32). In producing this paradox of sexual
(in)visibility, the management of sexual visibility in a heterosexual space:
passing renders the queer refugee subject as inauthentic (and to the RRT
is considered indicative of probable heterosexuality).
In tribunal testimony, accounting for violence also becomes
disrupted by experiences of disassociation and trauma. Shame, pain or
trauma has a corrosive effect on narratives, often distancing the
experience from the cognitive grasp of the subject (Berg and Millbank
2009: 7). Feeling becomes a way of constructing or (not) knowing
experience, rather than simply an effect of it (Probyn 1996: 10). In the
following case, for this Lithuanian female asylum seeker, being ‘lesbian’
emerges through a negotiation of physical and emotional pain:
‘As the eldest child in my family I was brought up with my

father being a severe alcoholic. My household was subjected
to constant abuse. I was constantly beaten by him. At the age
of [age deleted] I was raped and [details deleted]… This event
placed scars on me and psychiatrists worked to restore my
mental health. From this horrific past I became fearful of
Lithuanian men. Girls at the age of 16 begin to go to dances
but I was never driven by the male species[,] as I was a
lesbian. I got involved with a girlfriend.’34
In this account, the asylum seeker connects an experience of sexual
34
N02/42894 (2003) RRTA 1093 (14 November 2003) at 5.
49
violence with an orientation that ‘moves away’ from men. In placing the
violence within a domestic space of repeated abuse and rape, the asylum
seeker articulates the pain in physical and emotional terms: ‘constantly
beaten by him…event placed scars on me…[and] my mental health’. There
is a link between this and sexual orientation: ‘I became fearful of
Lithuanian men…and I was never driven by the male species’. While
Braidotti and Ahmed’s arguments disrupt the notion of a fixed ontological
(atomistic) subject that ‘moves’ and experiences emotion. Not only does
the emotional rhetoric of fear and pain shape sexual desire, it is a source
of movement in space (evident in the reference to ‘driven’), not simply a
fixed identity. Locating this within a (heterosexual) social space of a dance,
the asylum seeker distinguishes her desire from that of other ‘girls at the
age of 16’. Berlant problematises the rhetoric and discourse utilised by
political (or in this case legal) systems that suggest feeling is an ‘authentic’
bodily experience, which presupposes an ontological and fixed subject
(1999: 56). In this particular case, the applicant frames sexual orientation
or being a ‘lesbian’ as consequent to the pain and fear of sexual violence
(perpetrated by men), an event ‘that placed scars on me’. By
problematising the evidence used to express trauma or pain, Berlant
suggests that it is necessary to engage in a reflexive approach to
‘commonsense’ feeling (1999: 58). The queer asylum seeker does not
necessarily have a sexual identity or ahistorical sexual feelings prior to the
experience of relating the formation of desire through spaces and histories
of action. The feeling of pain and fear of being with men operate to
construct how the body orients itself towards particular kinds of sexual
attachments. Pain and fear operate disparately to the previous cases
discussing same-sex attracted men. Queer female sexual subjectivities
emerge through histories of (hetero/patriarchal) sexual violence.
Emotions also become political zones of movement and
50
attachment. While we are ‘moved’ by emotion, it also operates to ground
the body to a particular space, sign or object (Ahmed 2004: 11). Rather,
than seek to ask what emotion is, Ahmed more pertinently queries what
emotion does to us as a form of bodily orientation and suggests emotion is
not a form of self-evident knowledge that can be uncritically accessed
(1999: 74). Instead, emotions, as forms of orientations, become a way of
‘sticking’ to other things: for example, sexual object choice will orient
ourselves to particular objects/spaces more so than others (Ahmed 2006:
101). Sexual orientation, therefore, is a ‘work’ produced by the body and
space and is both material and difficult to change. In some ways, ‘being in
place’, involves an understanding of the intimate relation between objects
coexisting in a space.
In this particular case, the applicant grounds his sexual experience
through spatial terms and social relations rather than vivid quantitative
accounts of sexual penetration:
‘I met [Person N] in [year], when I was 19 years old. He went

to the same gym that I went to…He told me on several
occasions when I saw him at the gym that I should come by
his house whenever I was free. One day I dropped by his
house and…He was watching a pornographic movie, a "blue
film" as it is called in India... I began watching it with him and
then we started to engage in sexual activity with each other.
After that day, we began a relationship... We tried to avoid
going out in public because we were scared of what, would
happen to us if we were caught.’35
Experiences of what is ‘sexual’ in this testimony is characterised by the
social relations between the applicant and his gym partner. Instead of
delineating sexual identity through vivid descriptions of penetration, the
testimony references the gym, television and home as crucial to the
formation of erotic attachments. The applicant notes the repetition of
pornographic ‘homosexual scenes’ and the subsequent ‘interest’ he
physically displayed stimulated the ‘sexual activity’ he participated in. In
35
0907630 (2010) RRTA 133 (29 January 2010) at 44.
51
this particular recount, the sexual is oriented in the private space of the
home and marked in relation to pornographic objects (such as the ‘blue
film’). Public space, however, is counterposed as a space of risk and
danger; there is anxiety and fear over ‘what would happen to us if we were
caught’. Eroticism is marked away from public boundaries, and it ‘sticks’
queer refugee bodies into the private. Focusing on feeling is crucial to
distinguish between the way sexuality and persecution operates in this
moment. Noting the way anxiety is annexed to the public, while pleasures
are marked as private, persecution the ‘social group’ category blurs the
categorical distinctions. Situating queer refugee subjectivity as a trope of
orientation that ‘sticks’ to a particular space or object, rather than a stable
site of identification, renders the risks of violence more intelligible in the
context of sexuality based claims.
Violence, then, is productive in terms of how individuals experience
their identities as a result of (the symbolic threat of) injury. Ahmed queries
the ontological assumptions within ‘hate’ (as an emotion associated to the
perpetrator) and asks how does the hated subject reconstruct their identity
or body through the experience of being hated? Individual bodies become
a metonym for a broader group body (such as the queer body) which
presupposes the intrinsic or fixed quality to a body prior to the violent act
(Ahmed 2004: 55). Responding to the emotive rhetoric of hate, Ahmed
dislodges the causal relationship between identity and injury in the context
of hate crime (2004: 59). This becomes particularly relevant when
considering how violence can be enacted not only towards the ‘hated’
bodies but also the communities that the refugee is oriented towards, such
as their families:
‘Whilst I was in [Country C], a group of people came to my

family's home and forced their way in, breaking the door
down. My parents said they were KCYM people. They broke
my parents' glass cabinets. They grabbed my father by the
neck and said that, if I came back to India, they would kill
him. I think they went to my family's house because they
52
knew that I was in [Country C] and they did not want me to
come back, so they wanted to threaten me through my
family.’36
Locating violence within an assemblage of bodies, spaces and objects is
crucial to dislodge the notion of sexuality-based persecution as a physical
assault oriented towards a single body. In the above testimony, the home
space is not only invaded, but the bodies within that space, who have a
connection to the queer body (such as the applicant’s father) are subject to
violence. The threat is mobilised against the home and the family, and
subsequently the applicant himself: ‘if I came back to India, they would kill
him’.
In the previous encounter, bodies do not simply act in space; rather
spatial relations (or territories) are produced through actions. The intrusion
of ‘breaking the door down’ and the fact they ‘broke my parents glass
cabinets’ reflects how the home space is redefined as a site of threat and
risk if the queer body returns. Action becomes a question of the body’s
inhabitation of particular space- bodies and objects share space (Ahmed
2006: 52). The family becomes the violated objects as a means of severing
the connection between the applicant and his home.
In thinking through such an argument, Ahmed draws upon Merleau-
Ponty to argue that the body is not an instrument, but is an expression of
space itself. Fear emerges from the fractured relationship to the objects or
bodies which have been damaged or injured in order to repudiate queer
subjects, rather than from a history of physical assault. Experiences of
persecution move and produce queer refugee bodies in the spaces they
inhabit (Ahmed 2006: 53).
Violence and injury is a point where bodies, actions and spaces
intersect. It is an embodied or interactive dynamic that cannot be reduced
to singular modes of being or identity (Mason 2002: 59). Territory,
36
0907630 (2010) RRTA 133 (29 January 2010) at 48.
53
therefore, can be defined as both material and discursive. It is always
embedded in a context of belonging to a space and how one understands
what it means to belong to it. In the case of the Lebanese asylum seeker
who chose to not engage in sexual activity with other men, the RRT query
the kind of ‘fear’ the body risks in returning home:
‘As to what he had feared would happen to him in Lebanon if

it was [sic] known he was homosexual, he said that he had
mental pressure. Also if his family knew they would have a big
problem. It was a strict family. Socially he would be an
outcast.’37
Injury, in this testimony, is understood as the constant threat of violence in
making one’s desire visible: ‘if his family knew they would have a big
problem’. A precedent of physical violence need not exist. In this case, fear
of being an ‘outcast’ is articulated through familial imaginaries (Mason
2002: 60). Space becomes crucial to the articulation of persecution: injury
becomes a risk in the domestic space (including literal and symbolic
isolation from the home). Violence, therefore, can be understood as the
eruption between differences: where knowledge of non-heterosexual
orientations conflicts with the ‘strict’ nature of his family (Mason 2002: 61).
Reframing injury through emotional (non)belonging, as a threat of being
repudiated from one’s (familial) space, produces a ‘mental pressure’ to
manage sexual subjectivity in a particular social and cultural environment.
Emotional responses to violence emerge in the negotiation of
shared spaces. Referring to the emotional character of fear, Ahmed notes
that fear does not reside internally within a particular body. Rather, it is a
visceral exchange between gazes which shape and secure the relationship
between those bodies (Ahmed 2004: 62-3). Fear occupies a different
temporality to hate or love, as it projects us into an experience of the
future, an imagining or feeling of anticipated hurt or injury (Ahmed 2004:
65). As the female applicant from Vietnam recounts (071862642), fear
37
1000152 (2010) RRTA 223 (19 March 2010) at 50.
54
becomes the anticipation of physical and verbal assaults:
‘For a long time I didn't have any relationship mainly due to

the fact that I was afraid to go through the same things all
over again. In spring [year deleted] I met [name deleted]
and we started seeing each other as a couple. Our situation
was not better than before, meaning, we had to pretend to
be just friends.’38
In this testimony, the connection with being ‘afraid’ and the previous
history of abuse is clear: ‘I was afraid to go through all the same things all
over again’. Fear limits queer social (and sexual) intimacies by projecting
an imagined set of taunts or injuries that could happen ‘all over again’.
Even when the asylum seeker engages in a relationship with another
woman, the constant threat or fear of violence manages how that intimacy
is rendered visible. Fear motivates them to ‘pretend to be just friends’.
However, the projection into the future produces an experience of bodily
anxiety or intensity within the present. The performance of friendship then
becomes necessary to manage suck fear.
Fear, as a discourse of anticipation, is also central to the
negotiation of sexual subjectivity and intimacy. Ahmed argues that fear
can enable us to flee or paralyse us (2004: 65). Taking this further, the
testimony implies that fear enables a specific negotiation of intimacy in
spatial terms: the applicant only engages in the intimacy ‘outside the
suburb where I [applicant] lived’. While, fear works to ‘shrink’ the body, by
limiting social or bodily space in the world, it is also crucial to the way
pleasures and desires are renegotiated (Ahmed 2004: 69). As expressed in
this testimony, fear and desire are imbricated to produce a kind of conjugal
(‘couple’) intimacy outside the immediate home space.
Framing emotional experiences in refugee law broadens the scope
of the legal representations. In current approaches to the Refugee
Convention 1951 the test of ‘well-founded fear’ is largely understood in
38
071862642 (2008) RRTA 40 (19 February 2008) at 20.
55
quantitative or public terms. Using a theoretical lens of affective
orientations, the scope for representing fear, pain, injury and intimacy in
the law becomes much more nuanced. Queer refugee subjects do not
merely occupy a stationary point of identity or victimhood. Rather, as
nomadic figures they articulate sexual and erotic attachments in multiple
ways and occupy space in distinct (and often paradoxical) ways. Sexuality
is not reducible to consumer orientations or habits in the public sphere nor
is persecution commensurate to the repression or erasure of desire. Fear
and violence construct sexual subjects and spaces by negotiating erotic
attachments in ways that can enable social and erotic relations.
CONCLUSION
I started this thesis by confronting my own affective and theoretical
frustrations at the way queer bodies are (mis)interpellated. I now attempt

56
to conclude with the hope of reaching new legal becomings. The law
currently offers some protection for refugee sexual minorities. However,
there is room for significant improvement. Evoking some of the
problematic assumptions of sexual identity as a caricature of quantitative
genital acts and persecution as visible public injuries invites ongoing
critical attention to the way the queer refugee subject is delineated in the
law. In response to the normative propositions to understand sexuality,
persecution and refugee credibility; queer, postcolonial and affective
interventions provide useful theoretical grounding for developing more
nuanced legal representations. Perhaps such a project seems futile
because it runs against the foundational structure of the law -- a system
that demands fixed representation. Ethical modes of representation,
however, can emerge by contesting these foundational structures. For
asylum law, this begins by shifting the legal vocabularies of ‘gay’, ‘lesbian’
or ‘homosexual’ to an analytic use of the term ‘queer’, to avoid the
essentialising or ethnocentric tendencies of the law. Erotic attachments
and experiences of violence must be contextualised in terms of their
contingencies rather than understood as a universally fixed sign. Using
relational terms of representation to capture subaltern narratives involves
a complex theoretical and methodological negotiation of difference(s).
My attempt at this theoretical mediation began by contextualising
the refugee subject within international law and domestic legal and
administrative decisions. What emerges from mapping current
jurisprudence is the emphasis on sexuality as fixed, ahistorical and
reducible to a script of genital penetration. In critiquing such a parochial
conception of sexuality within the category of social group in the Refugee
Convention 1951, queer legal theory approaches offer deconstructive
analytic tools for understanding the performativity and fluidity of desire.
Dislodging the binary characterisations of heterosexual/homosexual and
57
public/private and undermining the causal narrative that sexual identity
precedes violence underscores the disparate ways in which queer
subjectivity is constituted in the experience(s) of violence. Current legal
preoccupation with authenticity is problematic, as it assumes universal
and dehistorised characteristics of sexuality.
What limits current queer legal critiques are the way questions of
race and diaspora are treated tangentially when examining the
public/private divide to sexuality. In romanticising a deconstructive
approach to sexual(ity) differences, there is little emphasis on how to
account for these material differences in a system which relies on
delineating a ‘representable’ subject. By positioning queer refugee desire
within a postcolonial lens of minority representation, Chapter II examined
the ways subjectivities can be mapped in materially and culturally specific
ways. Connecting diasporic desire with subaltern subjects highlights how
narratives can be situated to avoid marginalising or erasing the voice of
the asylum seeker. Placing erotic agency and persecution within a legal
postcolonial framework, it is essential that decision makers avoid the
perpetual victim rhetoric, which colonises experience. By marking
boundaries of the ‘home’ as essentially repressive and the ‘host’ nation as
liberating, the jurisprudence recuperates the (mis)understanding that
queer subjects are alien from their country of origin, and must necessarily
be able to embrace their (public) sexuality in Australia. Using geographical
and spatial theories of the ‘closet’ in order to conceptualise the differing
articulations of homophobia (both in the physical home space and the
tribunal space) renders the material and discursive position of queer
refugee subjectivity visible.
In extending the way representations of queer refugee subjectivity
‘move’, the law must consider the affective and spatial contours of
diasporic bodies. Textual and discursive approaches, while useful, are
58
limited methodologies in accounting for the nomadic subject. Chapter III
engaged with these limitations by placing (and spacing) refugee
narratives as nomadic articulations in order to render visible their
transitory and cyclical attachments to desire and belonging. While the law
has a tendency to situate emotion as outside the realm of objective
decisions, the success of a refugee claim relies on the character of a ‘well
founded fear’ of persecution. With such emotive rhetoric at the heart of
the legal test, feeling must not be displaced or obscured from decision-
making processes. Using a queer phenomenological paradigm to frame
sexuality, violence and emotion in the law, produces relational forms of
representation that do not abstract different lived experiences.
Imbricating the ‘social’ and the ‘sexual’ with the ‘private’ (home) space in
order to understand how social relations produce sexuality and violence,
problematises understandings of sexual citizenship defined in public or
quantitative terms. Such an approach avoids producing queer refugee
subjects as fetish objects or subjects that must participate in public
consumption of sexuality. Framing injury, shame, pain and ultimately fear
as contact zones of negotiation between bodies, spaces and communities
marks persecution and sexuality as dynamic rather than hegemonic or
universal experiences. While my focus has been on asylum law, the
implications of relationality and affect extend to many other areas of legal
and policy discourse that govern the lives of sexual minorities.
Ultimately, developing these discursive frameworks and legal
debates is crucial, as what is at stake in these discussions is material -
human life and quality of life. It is perhaps easy, when negotiating
complex legal and theoretical terrains, to obscure the momentum behind
such analysis, which for me, has been an activist and academic desire to
effect social and political change. When bodies risk expulsion from
Australia, and the threat of physical violence and even death, by being
59
forced to return to their country of origin, these seemingly esoteric
theoretical debates in legal theory, queer theory, postcolonialism and
affect studies take on an immediate ethical relevance. While this thesis
does not claim to provide a simple solution to discussions on sexuality and
refugee law, it invigorates a critical dialogue between the law and cultural
studies. In the words of Audre Lorde, passion and emotion are not simply
theories, experiences or affects, but capable of social and political
transformations that must be moved to action. By relating emotion(s) and
difference(s) through moving representations, it is possible to shape more
dynamic legal and policy landscapes. In doing so, justice becomes more
than a utopian possibility.
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Senthorun Sunil Raj (307157105)

QUEER REFUGEE SUBJECTIVITIES

Senthorun Sunil Raj

A thesis submitted in partial fulfilment of the

Submitted: 18 October 2010

Validating asylum claims on the basis of a person’s sexual orientation rely

Keywords: refugees; diaspora; sexuality; persecution; emotion

‘How do you deal with things you believe, live

- Audre Lorde, Sister

Chapter I: Strange(r) Bodies 10

Chapter II: Postcolonial Que(e)ries 18

Chapter III: Affective Narratives 32

What counts as sexuality? What constitutes persecution? Who is the

work together to construct how sexuality based persecution is determined

in international refugee law. While I read the administrative documents

that decided whether a refugee was or was not homosexual, it was

particularly frustrating to observe the ways in which discourses of sexuality

or ‘experimental’ sexual experience from the ‘genuine’ sexual identity).

others. Asylum law is fraught with epistemological challenges. In

international jurisprudence commenting on the Refugee Convention 1951

and subsequent interpretations of this convention in administrative law,

the ‘refugee’ in the terms of a discrete persecuted characteristic.

Authenticating refugees on the basis of sexuality relies on suturing

narratives of ‘functioning’ sexuality to incidents of persecution. Emotion,

desire and feeling are obscured by a culturally coded administrative

method of verification, a narrative process which produces a caricatured,

ethnocentric and overdetermined legal trope of the gay or lesbian asylum

seeker. Refugee subjectivity becomes mute within the colonising space in

objectifying representation of legitimate sexual practices or violent

figure of the queer refugee remains grounded in narratives of fixed

identity. Focusing on spatial and embodied difference(s) rather than a

quest for universal (fixed) identity, I consider these representations in a

relational way, alongside experiences of affect, to frame sexuality and

persecution in heterogeneous ways.

Australia has attempted over the past two decades to protect

asylum seekers who flee persecution on the basis of their sexuality.

Assessment of these claims has relied on delineating the notion of sexual

identity and persecution in universal and discrete terms. Within the

materialises through an examination of persecution and sexual

subjectivity. While the ‘queer refugee body’ has no currency in

international law, I use it as an analytic term to encompass bodies that

experience persecution framed in terms of their (perceived) ‘queerness’.

Queerness as it relates to refugees is not confined to a particular sexual

identity or identification, but rather articulates sexual and cultural

difference(s). It is a discursive and affective subjectivity which emerges

through how a refugee experiences and negotiates their sexual

attachments, persecution, displacement and intimate practices. While

discourse, such a vocabulary often confuses rather than clarifies how

refugee who are sexual minorities understand the specificity of their

desires and practices in their countries of origin. The legal definition of a

refugee relies on establishing a causal link between sexuality and

persecution. My conception of the ‘queer refugee’ extends this scope by

refusing to fix sexual identity or violence to an ethnocentric, implicitly

subjectivity emerges through experiences of violence.

Responding to the lack of qualitative, culturally specific legal

frameworks, postcolonial approaches to subaltern and diasporic subjects

offer useful interventions to rethink how queer refugee identities are

produced in the context of geographical displacement. Connecting

displacement and sexual identity thus fractures the rhetorical legal

currency of the ‘closet’. Asylum seekers are either too ‘transgressive’ to

enter Australia by being visible, or they lack credibility for refusing to

disclose his/her sexuality in public. By broadening the policy and scholarly

debates in interpellating the refugee, this thesis explores new avenues of