Millbank, ‘Imagining Otherness’, 2002

J. Millbank, ‘Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia’, Melbourne University Law Review, 26, 2002, 144-177

Abstract

In refugee determinations based upon sexuality, Western decision-makers must come to terms with the other other, a lesbian or gay man from a different culture. They must translate that experience of sexuality and culture not just into the international and national framework of refugee law but into something intelligible to themselves. This process is one that requires empathy and imagination. This paper is based upon a comparative analysis of 331 decisions concerning sexuality from the refugee tribunals in Australia and Canada, covering six years from January 1994 to April 2000. The decisions examined are potent evidence of the public/private divide in the Western refugee-receiving nations of Canada and Australia. What is and what is not protected conduct in the decisions effectively decrees what is and is not proper for lesbians and gay men to do, both here and ‘there’. The result of this projected sense of the public/private divide is to trap applicants in a tightly woven paradox: if they are too public they are transgressive, repellent and in danger of being rejected as deserving of the abuse they have experienced. If they are too private, they run the risk that their claims will not qualify as persecution and will be regarded as merely private and/or readily avoided.