AltLJ Vol 36:3 2011 — 177 ARTICLES AFFECTIVE DISPLACEMENTS Understanding emotions and sexualities in refugee law SENTHORUN RAJ 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 Determining what counts as sexuality and persecution within the terms of international refugee law is fraught with challenges. Many decisions that seek to discern if a refugee was or was not homosexual, rely on discourses of sexuality that privilege the authentic from the inauthentic (ie the ‘confused’ or ‘experimental’ sexual experience from the ‘genuine’ sexual identity). What these analytic and moralising terms gesture to is that some sexual orientations are more valid than others. Using international jurisprudence commenting on the Convention Relating to the Status of Refugees 1951 (UN) (‘Refugee Convention 1951’) 1 and subsequent interpretations of this Convention in administrative law in Australia, it is clear that the policy and legal structure seeks to codify the ‘refugee’ in the terms of a discrete persecuted characteristic. Authenticating refugees on the basis of sexuality relies on a causal narrative — suturing stereotypes of ‘functioning’ sexuality to incidents of persecution. Emotion, desire and feeling are obscured by a largely ethnocentric administrative method of veriication, a narrative process which produces a caricatured, stereotyped and overdetermined legal trope of the gay or lesbian asylum seeker. Refugee voices become mute within the colonising space in which they seek asylum. Such an approach raises broader questions as to why the law continues to construe identity and experience within objectifying representations of legitimate sexual practices or violent experiences. While the ‘queer refugee’ has no currency in international law, I use it as an analytic term to encompass individuals who experience persecution framed in terms of their (perceived) ‘queerness’. Queerness as it relates to refugees is not conined to a particular sexual identity or identiication, but rather articulates sexual and cultural difference(s). It is a discursive and affective subject position which emerges through how a refugee experiences and negotiates their sexual attachments, persecution, displacement and intimate practices. Focusing on spatial and embodied difference(s), rather than a quest for universal (ixed) identity, this article considers legal representations in a relational context, alongside experiences of emotion, to frame sexuality and persecution in heterogeneous ways. Locating the queer refugee subject in law To claim valid refugee status, a prospective applicant must demonstrate persecution on the basis of a protected characteristic. Under art 1A(2) of the 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, particular social group or political opinion. 2 In Australian law, sexuality, or speciically ‘homosexuality’, has been protected under the category of ‘particular social group’. 3 These deinitions have been incorporated into Australian law under the Migration Act 1958 (Cth). Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) (‘Chan’) 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’. 4 Justice Toohey explicates in Chan that ‘well founded’ is deined as a ‘real chance’ of harm which is not remote or insubstantial. 5 Moreover, asylum seekers must be unwilling or unable to seek protection from their country of origin due to those fears. To situate some of the broader theoretical dificulties in deining the queer refugee, 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. 6 Legal theorist Ngaire Nafine 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. 7 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. Unlike the discursive position of the aggressive homosexual, the refugee subject in the law is rendered in sympathetic and vulnerable terms, as former Minister for REFERENCES 1. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 (‘UNTS’) 150 (entered into force 22 April 1954). 2. Article 1(a), Refugee Convention 1951. 3. Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401. 4. Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. 5. Ibid 407. 6. Ben Golder, ‘The Homosexual Advance Defence and the Law/Body Nexus: Towards a Poetics of Law Reform’ (2004) 11(1) E Law: Murdoch University Electronic Journal of Law 1, 5.