Queer legibility and the refugee status determination process

Abstract

It is well documented that LGBTIQ+ applicants face a multitude of stereotypes and biases from decision-makers worldwide. We build on literature that argues that there is an unspoken component of credibility – to what extent the applicant is legible to the decision-maker. Based on interviews with legal representatives of LGBTIQ+ people seeking asylum in Australia, we observe that if the applicant’s narrative and label of their lived experience is familiar to the decision-maker, they are more likely to be understood by the decision-maker. Those whose experiences fall outside Western, and specifically Australian, conceptualisations of sexuality and gender identity categories are less legible to the decision-maker, than those who present a dominant, definitive, and stable identity narrative that is ‘out and proud’. Importantly, this paper also found that legal representatives shepherd applicants towards a clear label to perform an identity that is understood, or knowable to decision-makers.

Introduction

Lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people have been seeking asylum in Australia since 1994 under the Refugee Convention (Dauvergne & Milibank 2003). Since then, LGBTIQ+ refugee applicants have navigated the complexities of the migration system and Western expectations about how they perform their sexuality and gender. The goal of this paper is to conceptualise how LGBTIQ+ applicants can become legible to those that grant refugee status and the role of their legal representatives in this process.

The Australian Government can grant refugee status if the applicant can demonstrate a credible fear of persecution due to their ‘LGBTIQ+ status’. In Australia, the Department of Home Affairs evaluates both the ‘LGBTIQ+ status’ and fear of persecution through the existing refugee status determination (RSD) process (Dauvergne & Milibank 2003). In RSD, credibility assessment is used by decision-makers to assess statements and other evidence from the applicant regarding their eligibility for refugee status. Certain literature on RSD sometimes uses the terminology sexuality and gender identity (SOGI) refugees (Murray 2014 for example). Instead of focussing on this legalistic terminology however, this paper uses the LGBTIQ+ or ‘queer’ to refer to all people of diverse sexualities and genders.

Credibility is often the most significant factor in the state’s assessment of whether someone will be in danger of persecution upon return to their home country (Kagan, 2002). The Department of Home Affairs recognises that establishing credibility can be particularly challenging for LGBTIQ+ applicants because of a lack of supporting external ‘objective’ evidence. This evidence, or documentation, may not exist because the applicant may have hidden their identity or government records may exclude the persecution faced by LGBTIQ+ people in their country of origin (Australian Government Department Of Home Affairs, 2018: 7). This lack of external evidence creates a reliance on the decision-maker evaluating the applicant’s story for believability. This can make RSD an inconsistent and discretionary process reliant largely on the decision-makers understanding and evaluation of the LGBTIQ+ applicant’s personal testimony (Kagan, 2002; Rousseau et al., 2002; Shuman and Bohmer, 2012). The decision-maker ‘must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true’ (Administrative Appeals Tribunal 2015: 4). In the absence of documentation, the application for refugee status therefore becomes largely about the value of their word or how trustworthy (Cameron, 2019) they appear to the decision-maker.

Despite attempts to create objective standards for credibility, decision-makers in different contexts continue to rely on assumptions or stereotypes that are formed from their own understanding of the world to grant refugee status. Rousseau et al. (2002) discussed how the cultural relativity of certain concepts or cultural assumptions can lead to misunderstandings in refugee decisions. Shuman and Bohmer (2012) contend that the decision-maker’s assumptions about what is realistic can misguide their decisions.

It is well documented that LGBTIQ+ applicants face a multitude of stereotypes and biases from decision-makers worldwide (Millbank, 2002; Millbank and Berg 2009; Murray, 2014). Millbank writes ‘because the decision-makers were … unable to find a meaning for that experience – other than their own projected meaning – it simply did not make sense to them’ (Millbank, 2002: 148). Previous literature on refugee decisions in Australia has addressed the idea that identity, and performance of identity in a way understood by a Western adjudicator, is embedded within the RSD process for LGBTIQ+ applicants. In relation to Australian asylum cases, Millbank and Berg (2009) found that decision-makers relied on ‘preconceptions as to what a gay identity necessarily entails’ (p. 400). A 2008 report by the New South Wales Gay and Lesbian Rights Lobby found that RSD Tribunal decisions between 2000 and 2007 expected stereotypical ‘gay lifestyles’ of applicants (Kassisieh, 2008, 2019).

Other scholars have written about the need for asylum applicants to ‘perform’ Western notions of sexuality or identity to be seen as worthy of refugee status (Berger, 2009; Giametta, 2020; Tschalaer, 2020). Berger (2009) states that ‘immigrants must present themselves as gendered and sexual beings recognizable (and acceptable) to immigration and court officials’ (p. 659). Tschalaer (2020) found that decision-makers in Germany are more likely to grant refugee status when the person seeking asylum adopts Western standards of queer identities and a ‘sexual asylum story’ that centres around sex and relationships. This includes an expectation by decision-makers that gay men are ‘flamboyant’ or ‘outspoken’. Giametta (2020) recently found that decision-makers hold Eurocentric views and stereotypes that expect homosexual men to have stereotypically feminine characteristics and homosexual women to have stereotypically masculine qualities.

Berg and Millbank (2017), in their work within the Australian context, have explored how a pervasive linear psychological model of identity formation biases decision-makers into expecting a linear and coherent chronological narrative from the applicant. Decision-makers expect a fixed, discoverable sexual identity rooted in shame and concealment, with a clear liberatory end-point of self-actualisation (Berg and Millbank 2017). Not only does this cause an expectation of a universality of all narratives, it also places an emphasis on publicly demonstrable identity affirmed through a ‘coming out’ (Brotman and Lee 2011; Luibhéid, 2008; Kahn and Alessi, 2018). Giametta (2014) found the same theme in the United Kingdom, where he states ‘coming out and expressing recognisable enactments of “gayness” become central to provide validity to one’s biographical account’ (p.587).

More recently, Dawson (2019) describes how stereotyped expectations of gender identity are used to make refugee decisions in Australia. Dawson (2019) criticises current decisions for focussing on gender affirmation surgery for applicants to prove they are transgender and presuming a male/female gender binary. The Canberra Statement on the access to safety and justice for LGBTIQ+ people seeking asylum, people with a refugee background and other forcibly displaced persons (FDPN 2019) highlights the priorities for reform in Australia in relation to LGBTIQ+ asylum, settlement and other support for LGBTIQ+ people in forced displacement. The Canberra Statement points out how rigid gender binaries and heteronormative assumptions in the refugee status determination process hinder people’s ability to seek protection.

This paper builds on previous research in Australia and internationally that shows that refugee decisions are often based on the decision-maker’s preconceived ideas, expectations and assumptions. The refugee decision is dependent largely on the worldview of the person hearing the applicants’ story. This is especially true for LGBTIQ+ applicants who, through lack of external evidence, must rely on the decision-makers’ trust in their story. This paper conceptualises an aspect of credibility specific to LGBTIQ+ applicants that previous literature has alluded to – the queer legibility of the applicant.

Queer legibility

All applicants apply for asylum under a specific category of the Refugee Convention and so must fall into a category that is understood by, or legible to, the decision-maker. These categories have explicit and implicit boundaries that are consciously or unconsciously understood by the decision-maker. It is easier to be understood as part of a category deserving of refugee status if the narrative presented is familiar to the decision-maker.

This process of becoming legible to the state has been theorised by many critical migration scholars who have noted that the need to become legible is heightened with increasingly restrictive migration regimes. Conlon (2013) calls out refugee status determination interviews as significant places that the process of subjugation and legibility take place. This process is what divides individuals into ‘legible’ and ‘illegible’. Being placed by decision-makers into legible categories is ultimately what enables people to attain refugee status.

There is a double bind of legibility in creating both access (to services or refugee status) and creating personal risk. Jimenez (2021) discusses the importance of legibility for migrants and refers to the illegibility of migrants (being legally unrecognisable by not having a photo ID) as legal violence. In this context, having legal identification allows the individuals to become recognisable by the state and access services and care but this same recognition can places them at risk of detention or deportation. Jimenez (2021) argues that legible illegality creates risk and anxiety, but illegibility creates prolonged suffering and potential mortality in the context of not accessing medical care.

Conlon (2013) discusses how people seeking asylum are asked to present themselves in specific ways to be legible and legitimated in society as a genuine refugee. Conlon explains how becoming legible requires them to understand themselves as ‘asylum seeker’ subjects and portray a legible and comprehensible refugee narrative. It is ‘through a continuous assortment of mundane encounters – or micro practices of government – these individuals come to realise that becoming legible and potentially legitimized necessitates their subjugation as asylum seekers’ (p. 196).

Scholars have explored how applicants with more tellable narratives are constructed as more worthy subjects of refugee protection (Al Shboul 2018; Shuman and Bohmer 2012; Vargas 2020). The primary way for refugee applicants to become legible is through the refugee narrative discussed earlier. Goffman’s tellability is important as it relates to the quality or noteworthiness of a narrative (Baroni 2014) that is so heavily relied upon in refugee decisions.

In the context of the refugee status determination process, being recognisable is the first step towards becoming ‘worthy’ of protection to the decision-maker. Judith Butler’s work on grievability informs how we think about the recognition of applicants for refugee status as ‘worthy’. In her book Frames of War, Butler (2016) states that grievability is a pre-condition for lives that are deemed important and viewed as worthy. In establishing the concept of grievability, Butler defines the ‘recognisability’ as the ‘general conditions that prepare or shape a subject for recognition’ (Butler 2016: 5). According to Butler, it is norms and conventions that make a person a recognisable subject and one is only grievable when recognised as worthy of living a life.

Conversely, others have applied Butler’s concept to how people seeking asylum are demonised to justify injustices and their ill-treatment. Authors have explored how the lives of people seeking asylum are made ‘ungrievable’ through violent discursive and non-discursive practices (Elsrud, 2020; Levinson, 2010; Hodge, 2015). This confirms Bosworth and Slade’s (2014) finding that recognition is a pre-requisite for social justice in their study of detainees in a British immigration removal centre. We acknowledge the power of Butler’s grievabillity. Legibility is the term that we have chosen in the paper because of its previous application in refugee literature and its colloquial use outside of academia, but we also want to emphasise that we intend for legibility, specifically queer legibility in this paper, to encompass the knowledge previously contributed by grievability and tellability.

This paper is novel in that it applies these concepts and the importance of recognition in the context of queer people seeking asylum. All people seeking asylum must have a tellable narrative to become legible or recognisable and achieve justice. However, for LGBTIQ+ applicants this process of becoming legible is fraught with additional stereotypes, misconceptions and biases from decision-makers.

Queer legibility refers to the process of becoming legible that is specific to LGBTIQ+ applicants navigating a cis-hetero-sexist migration regime. LGBTIQ+ applicants are determined as legible or illegible by a decision-maker who may hold stereotypes or misconceptions about what queer-ness looks like. We also argue that queer legibility can be difficult to attain because of the varied and nuanced nature of LGBTIQ+ experiences globally that may not be understood by Western decision-makers. These stereotypes are explored in this paper through specific case studies of queer-ness that do not fit into the worldview of decision-makers.

This paper considers the role of a third party in helping a queer person seeking asylum become more legible towards the nation state which is a significant contribution to the literature. There is a key person who guides the applicant throughout the RSD process, their legal representative. Recent research in Australia has shown that ‘applicants with legal representation are on average six times more likely to succeed than self-represented applicants’ (Ghezelbash et al., 2022). It is well understood that legal representation can help applicants navigate a complex and unfamiliar legal system and legislative framework (Kenny et al., 2016). This paper suggests that legal representatives play a role in LGBTI+ cases by specifically guiding applicants to create a legible and comprehensible refugee narrative that can be understood through a Western heteronormative lens. This intermediary between the applicant and the state decision-maker can help LGBTIQ+ applicants navigate queer legibility.

This research explores both the aspects of queer legibility and how legal representatives aid applicants in becoming legible. The significance of theorising queer legibility is that the current system prioritises more legible queer identities. This perpetuates the dominance of specific Western, dominant identity groups and is rooted is sexism, biphobia and transphobia. It furthermore perpetuates the forced categorisation to the queer applicants into LGBTIQ+ labels. Other scholars have called this a ‘universalised gay identity’ (Luibhéid, 2008; Brotman and Lee 2011) that risks normalising Western sexuality and gender categories thereby marginalising and othering non-Western labels.

The next section briefly discusses the methodology of the project. In the analysis and discussion, we explore the elements of what makes an LGBTIQ+ applicant legible to a decision-maker. Then follows an exploration of less legible applicants: those who identify as bisexual and those who exist outside of the western understanding of LGBTIQ+ category. The paper then explores how legal representatives shepherd applicants to queer legibility.

Methodology

The analysis in this paper is based on data collected from semi-structured interviews with legal representatives of LGBTIQ+ people seeking asylum in Australia. In total, seven legal representatives were interviewed between March and June in 2020. All participants have had personal experience representing applicants with gender and sexuality claims in the RSD interview in Australia. Participants were recruited using a snow-ball sampling technique and were included in the research if they had represented multiple applicants for refugee status on cases related to gender and/or sexuality.

The total number of participants was limited by the small number of LGBTIQ+ on-shore applicants for refugee status because of strict border policies in Australia. Despite the small sample size, the interviewees talked to examples that contribute to the larger discussion on the assessment of LGBTIQ+ refugee and asylum claims. As with all qualitative research, the richness and depth of the data from these interviews enables readers to gain a different perspective of experiences of refugee status determination. Unfortunately, none of the legal representatives shared experiences of intersex clients in the interview so this experience should be remedied in further research.

The sample size also remains small due to sensitivities around asylum cases in Australia. Some legal representatives were hesitant to participate in the research due to the concern that discussing their clients’ experiences, even confidentially, could impact their refugee decisions negatively. Given the small number of both legal representatives and applicants, names, locations or other identifying features have been removed from this paper to maintain the confidentially and privacy of legal representatives and their clients.

The questions asked during the interviews covered their experience representing LGBTIQ+ applicants in the RSD space in Australia, how their clients were expected to prove their sexual or gender diversity, the identity labels their clients use or do not use, as well as their role in helping their clients to navigate this space. Being semi-structured, the participants were able to guide the conversation to the topics they deemed relevant (Adriansen, 2012; Bamberg, 2010; Bauer and Gaskell, 2000; Messerschmidt, 1999; Smith, 2015). The semi-structured interviews were initially conducted in person and later on a video conferencing platform due to the onset of social distancing measures to combat the ‘novel coronavirus’ (COVID-19) pandemic. The participants have been given pseudonyms to protect their anonymity and so that the risk of adverse consequences for their clients’ cases is minimised.

The refugee status determination interview involves three key players. This paper refers to those applying for refugee status on the basis of persecution experienced for their sexuality and/or gender identity as ‘applicants’. The term ‘decision-maker’ is used to describe the employees of the Department of Home Affairs that conduct the refugee status determination interviews with applicants and make decisions on their cases. Applicants are ideally accompanied through the initial application process and the interview by an intermediary. In Australia, this person can be a migration agent, corporate and/or pro-bono lawyer or someone working in a community legal centre. For simplification purposes, this research refers to this person as a ‘legal representative’.

We recognise the importance of centring lived experience in research about LGBTIQ+ asylum. As discussed in the Canberra Statement (2020), lived experience must be prioritised to create meaningful reform. We were not able to speak to people with lived experience in Australia because the onset of the pandemic made it impossible to meet in-person or establish relationships and rapport within the community. This is common practice in qualitative research with marginalised populations (see, e.g. Cochrane, 2018).

Secondly, we believe this research could provide a meaningful contribution without compelling people with marginalised identities to describe likely traumatising experiences where their stories were dissected and possibly not believed. Kleinman and Kleinman (1996) explain how people seeking asylum must provide ‘trauma stories’ which in turn ‘become the currency’ for refugee status within the Global North (p 10). As white researchers from Australia, we have chosen not to perpetuate this power dynamic.

Additionally, to request LGBTIQ+ refugees to recount this experience may be retraumatising (Kleinman and Kleinman, 1996) and is epistemic exploitation, especially because we were unable to compensate them due to a lack of research funding (Berenstain, 2016). Lastly, the role of legal representatives in this space is relatively under researched and worth exploring.

It is important to note the findings do not delve into the specifics of individual applications for refugee status. Participants spoke generally about the variety of applicants they have represented in the past and the specific identities discussed do not reflect the legal representatives’ current clients. The two named examples of non-Western LGBTIQ+ labels are examples and do not reflect current refugee status applications. Rather, the quotes provided are related to their general impression of how LGBTIQ+ applicants navigate the refugee status determination process and how having an uncommon identity label affects their ability to navigate this process.

Analysis and discussion

There are many factors that contribute to queer applicants being more legible to the decision-maker and we have explored what these elements are in the section below. We then go on to contrast these element with examples of those who were more likely to be perceived as illegible by the decision-maker – bisexual applicants and those who do not fit within the basic Western notions of sexuality and gender.

The last section of the analysis and discussion takes up the question of the role of legal representatives in acting as shepherds to legibility for LGBTIQ+ applicants. We argue that legal representatives can act as interpreters for those with less legible identities by helping them choose a Western identity label that will be more recognisable to the decision-maker.

Unpacking the elements of queer legibility

Legal representatives relayed how decision-makers typically have pre-conceived expectations of how LGBTIQ + applicants should act and the stories they tell about their queer-ness. The best understood LGBTIQ+ experience was when the applicant could describe a dominant, definitive and stable identity narrative, while pursuing relationships and being ‘out and loud’. The following section will explore these elements of queer legibility.

Common and stable identity labels

Legal representatives report that uncertainty about which label to use can affect applicants’ credibility negatively. One participated stated that they would ‘not advise my clients to say ‘I am not sure’ or ‘I am still thinking about my identity’ (B., legal representative). Hesitating about which label to use or being unsure about which Western label fits their experience of being LGBTIQ+ caused decision-makers to doubt the credibility of their asylum case: ‘A level of uncertainty would just lead you to a path of “this person is just experimenting” … or “is not credible”’. (B. Legal representative)

Legal representatives spoke about how dominant identities fare better than uncommon labels. They stated that applicants would be better understood if they had a recognisable identity such as ‘gay’ or ‘lesbian’. As J. states, ‘I think they’d find themselves in an even more difficult position [if they had an uncommon identity label].’ (J., legal representative)

Applicants who change their identity label throughout the RSD process are less likely to be seen as credible by decision-makers. Consistency in their identity label is seen as important for credibility, which mirrors the expectation that applicants can tell their story of persecution with minimal inconsistencies. However, it has long been understood by scholars that trauma affects memory and the ability to tell an accurate and consistent narrative (Spinhoven et al., 2006). Participants stated that a common assumption by decision-makers is that the identity label chosen initially will remain consistent over time.

There are others that would definitely say, ‘Well you said you were gay in your statement 3 years ago so what’s changed? Why are you now saying you are bisexual?’ They would definitely question the person’s credibility. (J., legal representative)

The expectation for identity labels to stay stable is unrealistic for two reasons. Firstly, identity, and the labels that have been adopted to mark sexual and gendered experiences, are not a fixed categorisation. Sexual and gendered preferences and experiences can change over time. Secondly, the process to seek asylum is an extended procedure which can take multiple years. In the time between initially applying and their interview, applicants can have explored and developed their understandings of identity labels used in Australia.

As one legal representative pointed out, how they choose to apply identity may also have changed in this time:

And realistically the time between statement and the interview is 3 years so in that time the person might have come to understand themselves more, maybe been in a couple of relationships and worked things out and got to the point where they can come back and say, ‘yeah I think I’m only interested in men’ or ‘I definitely am interested in men and women.’ (J., legal representative)

Thus, applicants that are certain about their identity, do not change it over time and use a common identity label are more likely to be read as credible. This shows that decision-makers expected a fixed and easily understood identity label to describe the complexity and fluidity of sexuality and gender identity. As Murray (2014) points out this rigid idea of legibility is a ‘highly delimited and normative narrative of same-sex sexual citizenship and national belonging, which now includes some migrant bodies, but excludes many others who not fit the narrative’s acceptable performances, characteristic, and/or aesthetic’. (p.5).

Sexual or romantic relationship

A stereotype apparent in the interviews is that LGBTIQ + individuals will prioritise looking for or pursuing sexual or romantic relationship once they arrive in Australia. Multiple legal representatives highlighted that a statement from a previous or current partner is one of the most important pieces of evidence that can increase chances of success. Interviewees pointed out that this is considered more credible if the partner is an Australian or foreign citizen, not another person seeking asylum. This shows that the voices other applicants are not weighted as heavily as supporting evidence:

‘[having a partner] will always get you [granted refugee status] unless your partner is another asylum seeker who may be seeking on the same grounds that might be cause for more contention. If it’s an Australian citizen or foreign citizen you’d probably be okay.’ (B., legal representative)

One legal representative pointed out that the assumption that a person seeking asylum will desire or have time for a relationship is not an expectation that you would place on a heterosexual person. Rather it is an assumption that because the individual has been able to come to Australia and is now ‘free’ to have same-sex relationships, they will want or be able to do so:

‘The reality of it is that there is for some strange reason an expectation that if you are LGBTQI+ you are just continuously in relationships. And that of course you would do that if you came to Australia. It’s quite baffling because you wouldn’t expect that of a hetero person.’ (J., legal representative)

Furthermore, legal representatives reported a lack of understanding from decision-makers that applicants may not be able or willing to have a relationship due to previous traumatic experiences, or because their focus is on gaining education and employment in Australia: ‘They did not understand that sometimes it’s about survival and there’s other traumas that you’re dealing with’. (B., legal representative)

Decision-makers assumed that any relationships will be sexual in their nature. This intersected with the assumption that gay men especially will be actively seeking sexual relationships on dating apps such as Grindr. As M. said:

‘You shouldn’t have to say it’s a sexual relationship because someone can be in a heterosexual relationship and it’s not sexual - that would be accepted. For some reason you have to go a bit further with these sorts of claims.’ (M., legal representative)

While relationship status appears to be significant, another expectation of queer legibility is the notion that someone who is LGBTIQ+ is ‘out and loud’ about their identity and experiences.

‘Out and loud’

Another element of queer legibility to emerge from the interviews is the assumption that the applicant will be ‘out and loud’ about their sexual or gendered identity. This has multiple components, the most fundamental of which is the assumption that the applicant will have had a coming out of some sorts. Having a coming out story fits well into the expected LGBTIQ+ refugee narrative as ‘the department is more comfortable if someone has [come out].’ (B., legal representative). Coming out here refers to the process of realising one’s identity and expressing it to others – be this to family, a partner or more broadly.

‘They are also expected to prove in documents their coming out experience and what they’ve done so far in Australia to come to terms with their sexual identity. They should have a statement that discusses their own coming out experience.’ (J., legal representative)

However, it was clear from the interviews that this expectation is not uniformly applied across decision-makers and this is also not a pre-requisite in the Department guidelines. The Department recognises that it may be difficult for someone to express their identity openly when they are from a country that is homo- and trans-phobic in its laws and practices. Applicants may have little experience expressing their identity publicly since being identified as LGBTIQ+ in their country of origin would have risked persecution, and they may have traumas associated with this persecution.

However, participants pointed out that there would nonetheless be an expectation that they have at least told one other person: ‘They would still really be pushing for them to have had a relationship, on the sly, so you’ve told someone obviously.’ (B., legal representative). The applicant, then, must be both out about their identity in the dangerous environments in home countries while also having to prove that they have experienced persecution for being out. By looking for this contradiction, decision-makers lose the nuance of lived experiences where one might never come out to stay safe.

One participant pointed out that the language used in the English-speaking West around ‘coming out’ does not necessarily translate well across cultural boundaries:

‘The other thing is using different language that probably can’t be translated well. You know so, ‘When did you come out?’ That is not going to be translated well in the context of the interview so how do you define that?’ (M., legal representative).

A clear coming out narrative is an effective way to fit into an identity narrative that the decision-maker is familiar with. Explaining a moment or process of expressing one’s identity to others, and doing so with the language of coming out, aids them in being understood, or legible, to the decision-maker.

There was also an assumption that the applicant will be loud about their identity. P. pointed out that the evidence is more obvious, and it is easier to make a stronger case if the individual is extraverted and expresses their identity openly. Outward expression and participation in the LGBTIQ+ community provides physical evidence – ‘photos of the person “being gay”’ (T., legal representative), social media posts, event receipts and the like.

This type of being out also fits neatly into the narrative of the ‘loud queer person’ who marches at the front of the Mardi Gras parade in glitter and a rainbow flag. This stereotype of being ‘out and loud’, especially for gay men, is combined with an expectation to be a flamboyant, effeminate and sociable person.

‘Definitely in terms of gay men, if you are someone that wants to sit at home and just meet people over dinner parties and you are not flamboyant and going out dating or on Grindr, a lot of department officers find that difficult to understand.’ (B., legal representative)

Thus, in Australian RSD interviews queer legibility looks like dominant and stable identity labels, individuals pursuing a sexual or romantic relationship and being ‘out and loud’ about their queer-ness. However, interviewees identified multiple reasons why applicant may not adhere to these assumptions but still have experienced persecution for their LGBTIQ+ status. In other words, they may not be legible to the decision-maker as part of the LGBTIQ+ community but are still genuinely queer.

It important to understand that these notion of queer-ness are not confined to the borders of Australia. The myriad of expectations that Australian decision-makers hold about applicants echo the expectations of decision-makers in other countries such as the United States (Berger, 2009), United Kingdom (Giametta, 2014), France (Giametta, 2020) and Germany (Tschalaer, 2020). Specifically, there is an expectation that the applicant has a Western/Eurocentric experience of being LGBTIQ+, including a focus on sexual or romantic relationships. Tschalaer (2020) calls this a ‘sexual asylum story.’

The next section explores the prevalence of binaries in decision-making and how legibility is more difficult for those whose experiences fall outside Western and Australian conceptualisations of sexuality and gender identity categories.

The ‘illegible’ queer experience

Bisexuality and non-Western labels to describe queer experiences are less legible. This section highlights multiple examples of labels used, or not used, in RSD interviews by applicants that were not well understood by decision-makers.

The illegibility of bisexuality

Despite being a category in the LGBTQI+ acronym, bisexuality is both misunderstood and stereotyped by decision-makers. According to M. bisexual applicants face scepticism because decision-makers fail to understand the concept that sexuality is fluid and attraction is more complex than the homosexual/heterosexual binary. ‘One of the most difficult claimant groups within this group is people who identify as bisexual.’ (S., legal representative)

Participants reported that applicants are assumed to have relationships with at least two genders to be credible as bisexual. Inappropriate questions regarding how it is possible to be sexually or intimately attracted to more than one gender, as well as the incorrect use of terminology, was reported by legal representatives:

‘And bisexual people probably face the hardest time of all in that it seems almost impossible to get these decision-makers to wrap their heads around the idea that someone’s sexuality is what they claim and it doesn’t necessarily fit with their Western, preconceived idea of what that should look like in terms of the relationships that that person has had.’ (S., legal representative)

While legibility is a component that most people who apply for asylum are subject to, those ‘who don’t fit neatly in a box’ may find it more difficult to make their experience legible to the decision-maker. A failure to understand the complexity and nuance of sexual identity categories can lead to adverse credibility findings:

‘So when those claims are not just a strict ‘you're gay’ or ‘you’re this’ - and they don’t fit neatly in a box … it’s not easy for them so they just put it in the too hard basket and try to make an adverse decision on that basis.’ (B., legal representative)

Lesbian and gay applicants, if they express their sexualities in the ways outlined earlier (including a fixed, delineated and recognisable identity, an ongoing relationship and a coming out story), may be more likely to receive asylum as they fall within a clear binary of homosexual and heterosexual. The illegibility of bisexual applicants highlights how the notion of homosexual/heterosexual, and the gender binary, is central to decision-makers’ rulings.

There is perhaps also an assumption by decision-makers that bisexual applicants are less at risk as they may be less likely to be outed or can choose a relationship that looks heterosexual to the outside world. This is echoed by Rehaag’s (2008, 2009) research into bisexual applicants in Canada but further research should be done to understand the bisexual experience within the asylum system in Australia.

The ‘illegibility’ of non-western labels

In the context of applicants that come primarily from the Global South, it is important to note the diversity of labels for and experiences of queer-ness. Concepts of masculinity/femininity, sex, gender roles and gender expression have complex relationships to gender identity and sexuality that cannot be captured by simplistic terms such as ‘gay’ and ‘lesbian’. Not all expression and experience of gender and sexuality globally fall into the distinct categorises of gender (being about who you are) and sexuality (being about sexual or romantic attraction or lack thereof). Gender, sexuality and gender expression are not considered distinct concepts with distinct labels in every geographical and linguistic context.

Some legal representatives described how their clients did not view gender and sexuality as distinct concepts with specific labels they chose for themselves. As S. suggests, applicants are expected to define their sexuality and gender separately when these are not necessarily viewed as wholly separate by the applicant:

‘It’s only once coming to Australia that he’s had to decide, or at least the system is forcing him to decide, on these other terms - what is your sexuality and what is your gender as opposed to just who you are.’ (S., legal representative)

This section examines two examples of such applicants that fall outside the Western worldview of gender and sexuality categorical labels, Pengkids from Malaysia and Fakaleitī Tonga. These are illustrative examples to highlight both the fluidity of categories and the inflexibility of the refugee status determination system in Australia to deal with these unfamiliar labels.

Boundaries around sexuality and gender are complicated by those who identify as Pengkid, a label that encompasses both within the Malaysia context. Generally, someone who is Pengkid is assigned female at birth and has a masculine gender presentation as adults. They sometimes bind their chest and are referred to as tomboys, lesbians, transgender or butch. They generally have female partners and do not necessarily attach themselves to a specific set of pronouns (Wong 2012). The use of one word to describe both sexuality and gender identity is contradictory to the fitting neatly into the conceived boxes expected by some decision-makers.

A legal representative in Australian noted that Pengkids fell outside of queer legibility in the asylum-seeking process:

‘In Australia we try and put people into a particular box and say ‘well if you’re a Pengkid are you a lesbian or are you a transgender man or what? How can we define you?’ - and they just say ‘well I'm just a Pengkid, I am who I am, and I dress in these clothes which I guess are masculine type clothes, but I was born as a woman.’ (S., legal representative)

Pengkid sits somewhere between, or perhaps even outside, the set of identities readily available in the minds of decision-makers. An attempt to label them with the existing Western gender/sexuality categories inadequately describes their lived experience, and hence decision-makers struggle to place them and their narrative within the legible spectrum of LGBTIQ+ identity. ‘They associate as Pengkid and not necessarily lesbian or transgender or however we then try to define it here. And that is very much misunderstood by the Department’. (S., legal representative)

A second example of applicants that fall outside the legible categories of gender, sex and sexuality are people who identify as Fakaleitī from Tonga or other ‘third gender’ categories from neighbouring countries in the Pacific Islands. This overarching identity term is related to terms in English such as gay (sexuality), transgender (gender identity) or drag (gender expression). Thus, the concepts of sexual orientation, gender identity, gender expression and gender roles are not distinct:

‘There’s a bit of a conflating between being homosexual, being an effeminate man, doing drag and being a transgender woman or a person who perceives themselves as someone who fits the feminine gender roles in society.’ (F., legal representative)

F. also explained that using one label to describe multiple Western identities can be difficult for legal representatives to express to decision-makers:

‘They are all using the same word and it’s all very overlapping concepts. So how on earth I am going to explain this to an immigration officer? I don’t know. How am I going to fit this into the categories of gay and transgender? I’m not sure.’ (F., legal representative)

F. stated that ‘they don’t fit quite a lot of the benchmarks of being transgender in a Western context.’ (F., legal representative). These ‘benchmarks’ are used by decision makers to evaluate whether someone’s claim of a particular experience regarding gender identity and sexuality measure up to their expectations of how that identity should look, behave or be. In the case of Pengkids and Fakaleitī, the benchmarks for being transgender do not match their lived experience. For example, one participant stated that they do not necessarily use particular pronouns and do not always identify as a binary opposite gender than they were assigned as birth.

One element of queer legibility for transgender applicants is seeking or having had gender affirmation surgery. Multiple advocates interviewed discussed how proof of medical affirmation can help applicants build a strong LGBTIQ+ refugee narrative. The conflation of and preoccupation with gender affirmation surgery to prove that one is transgender is well documented within the legal context in Australia (Sharpe 2002). S. explained that there have recently been positive decisions where transgender applicants could provide medical evidence, or have ‘physical characteristics’ that can identify them as transgender:

‘Whilst they are fantastic to see this spate of positive decision-making - they are also often only for transgender people who have physically transitioned as opposed to people who haven’t.’ (S., legal representative)

The preoccupation with medical intervention as proof of being transgender means it is more difficult for those applicants for whom it is not an option or do not desire surgery. As was raised by F. people who are PengKids and Fakelaitī usually do not consider gender affirmation surgeries to be an option and ‘the suggestion of it is quite not welcome’. Thus, this queer legibility, already fraught with issues within the Western identity label, further fails to adequately address experiences that fall outside this categorisation.

In the next section we will explore the role of legal representatives in applicants becoming more legible in their queer-ness.

Queer legibility and the role of legal representatives

Queer legibility shows how decision-makers categorise and organise applicants based on if they can understand the applicant’s gender and sexuality. Understanding what legibility looks like as an LGBTIQ+ person seeking asylum is important because it could theoretically allow queer applicants to become more legible. If LGBTIQ+ applicants can present themselves within an understood identity category they may be more likely to be legitimated by decision-makers, resulting a more accurate acceptance rate of LGBTIQ+ people fleeing persecution. It is important to note this is a process of translating a genuine queer experience from another context into an experience that is better understood in Australia.

The role of legal representatives in leading applicants in becoming legible is an active and important one, as they hold the tools to understand which labels will be better received by decision-makers. As Berger (2009) explored, ‘lawyers and advocacy groups assist petitioners in this process, sometimes helping them to either disguise or camouflage themselves in order to cross the line into acceptability’ (p. 659). There are multiple examples of this strategy within the interviews. All but one of the participants mentioned their role in identifying labels for their clients of their own accord, showing that this is a conscious way to build a stronger case. This section will show that legal representatives can guide applicants to become more legible to decision-makers by finding an understood label.

To draw on Foucault’s (1982) notion of pastoral care and shepherding as watching over and guiding the flock, we argue that legal representatives perform this action in their role in advocating for their clients during this process. While the notion of shepherding was originally formed to reflect on the power invoked by state control, we discursively twist the theory to discuss how this guidance can subvert state practices of control over borders. Therefore, legal representatives take up the mantle of shepherd and guide their clients to queer legibility so their asylum-seeking claims are more likely to be successful by subverting an authoritarian state.

As J. said in their interview:

When it comes to the interview it is so much easier for them if they can give themselves some sort of labels so that the Department can process that. (J., legal representative)

Having any label at all – let alone one understood by the decision-makers – is not a given. J. described how often clients come to them with a pre-existing label that they self-identify, but other times their clients were not sure or reluctant to label themselves. J. goes on to describe how some clients ‘find pinning down a word quite challenging’. LGBTIQ+ individuals may come to Australia without a label for their experience. They must either must adopt one for the sake of the asylum process or find a label that suits their experiences in the process. J says, ‘the person is basically pushed into identifying themselves in some way’. (J., legal representative).

Most participants reflected on their role in aiding clients to pinpoint a specific identity to use in their asylum application process. Legal representatives are both able to identify and explain the labels that are commonly understood in Australia to help applicants to settle on or adopt one for the interview.

Then we sort of went through the definition of my personal I guess understanding of the LGBTQIA acronym. I think [that] was really helpful because it helped us pinpoint exactly what the person meant and where they wanted to sit themselves within the queer community… We had to have quite a long discussion about what that word meant across translations. (T., legal representative)

Multiple legal representatives described this as quite a collaborative and interesting process, where the applicant sometimes expressed interest in learning about the identity labels used in Australia. However, it was clear that this conversation often came about through the initiative and prompting of the legal representative and was dependent on their own knowledge of LGBITQ+ identities and labels.

In hearing about each labels, applicants are presented with a pre-existing set of options that currently exist in the Australian LGBTIQ+ community. This conversation may be applicant’s first exposure to these labels and how they relate to their own experience. Importantly, a set of Australian labels in English are from a dominant Western perspective and may not represent the lived experiences of applicants from diverse cultures and languages. Legal representatives reported playing a role in translating identity categories across linguistic and cultural boundaries:

We had to have quite a long conversation about what the Western definition of intersex versus gender diverse versus gender queer and transsexual [meant]… we settled on a different word in the end. (T., legal representative)

Some legal representatives described how this shepherding of clients to finding an identity erased the actual experience of the applicant. J. stated:

I often find myself explaining what the labels are…Unfortunately, we had to kind of explain the reality of the situation to them and encourage them to label themselves. (J., legal representative)

Legal representatives can act as mediators of knowledge when they explain the common Western identity categories that can help LGBTIQ+ applicants improve their case. This is important as the applicants can move from less to more legible with guidance from their legal representative. The impact of this shepherding to becoming more legible is that it provides the applicant with the safety they are seeking in refugee status. If applicants are refused refugee status within Australia, they may be deported to back to their unsafe home country or another country which may not prove safe for LGBTIQ+ persons. However, it also important to note that not all legal representatives will have the knowledge to shepherd applicants to queer legibility.

Nevertheless, conforming to queer legibility may erase an individual’s identity which further marginalises non-Western identity labels and reinforces the dominance of Western LGBTIQ+ identities. This is not a critique of legal representatives encouraging their clients to become more legible to the decision-maker, if that might help them perform ‘being LGBTIQ+’ in a way the decision-maker understands. Rather it is a critique of the Australian asylum system and the lack of flexibility in who is considered a legible LGBTIQ+ person. If the Australian asylum system truly acknowledged LGBTIQ+ people in all their diversity, applicants could defy Western categorisation and still be considered legible. In a situation of true queer diversity, an applicant should be able to apply for refugee status with any label and experiences of identity as long as they can establish a genuine fear of persecution for their queer experience.

Conclusion

Queer legibility is an additional criterion faced by LGBTIQ+ applicants in being assessed as credible by decision-makers as deserving of refugee status. Not only must the narratives of LGBTIQ+ applicants be consistent, coherent and believable in a Western context, their identity should fit into the worldview of the decision-maker.

This research shows that applicants who adhere to specific ways of being LGBTIQ+ are more legible to the decision-maker. This includes the expectation that they have one immutable label, are in or seeking a relationship, can align their narrative with a coming out story, and be outwardly expressive of their identity. Though fraught with stereotypes and misconceptions, these are more legible to decision-maker. Queer legibility is more difficult for those that do not fall in the elements found in this research, and those with non-Western gender and sexual identities such as Peng Kid and Fakelaitī.

Australia is a country with historically strict immigration control, long RSD processing times and a limited number of spots for refugee status. In this context of controversial policies for asylum seekers it is important to understand the barriers facing LGBTIQ+ applicants in being granted refugee status. This paper contributes to site specific knowledge about what it takes to be legible to decision-makers in Australia as a queer applicant for refugee status. We can also generalise these findings to other affluent countries with similar border regimes such as the Unites States, the United Kingdom and others.

The theoretical contribution of this paper is its bringing together of migration scholarship with the legibility literature in the under researched area of LGBTIQ+ people seeking asylum. The complexities and fluidity of non-Western concepts of queer-ness are a great case study to highlight the Western and heteronormative bias in Australia’s strict immigration control. Significantly, this paper considers the roles that legal representatives play in the process but further investigation is needed in this area. Research with more legal representatives across Australia and other countries could highlight their role in shepherding queer people seeking asylum.

Further research should examine queer legibility in other contexts to ascertain its role in refugee status determination. Work along these lines will aid in constructing clear lines of queer legibility and understanding of Western bias within the refugee process. The authors encourage further research into the interviews held and decisions made by immigration officers in affluent countries and the strategies that could mitigate bias.

In an asylum system pre-disposed to denial, the onus of making themselves legible falls to the applicant rather than on the decision-maker. This paper showed the barriers LGBTIQ+ applicants face in being assessed as credible in the RSD process but also highlighted that applicants’ legal representatives can play a large role in helping them become more legible. Becoming legible as a queer person in the RSD process is an evolving negotiation of identities and learning new ways of describing a queer experience. The role of legal representatives shows that queer legibility is not static; one is not either legible or illegible, but instead a movement from illegible to legible is possible with proper guidance in the context of queer people seeking asylum.