Immigration and Refugee Law ♦ Note 63 Va. J. Int’l L. 497 (2023)

Disparities in Queer Asylum Recognition Rates on the Basis of Gender: A Case Study of Australia and New Zealand

JAKE MARKS MILLMAN

Using an approach based on intersectionality theory, this Note tests whether a difference in asylum recognition rates exists in Australia and New Zealand at the firstappeals level. Through compiling an original dataset of judicial decisions and performing logistic regression analysis, this Note finds no difference in asylum recognition rates between queer men and queer women in Australia. In New Zealand, however, queer men were significantly more likely to win their cases than were queer women.

This Note then qualitatively analyzes why recognition rates between queer men and women were similar in Australia but different in New Zealand. Examining a subset of judicial opinions, this Note argues that one explanation for the quantitative results can be found in the role of credibility. In Australia, judges set questionably high thresholds for establishing that male applicants were credibly gay and female applicants were credibly lesbian. In New Zealand, judges set similarly high thresholds for establishing that female applicants were lesbian, but lower thresholds for establishing whether men were gay. In both countries, the judicial opinions demonstrated a lack of understanding of challenges specific to queer women, as intersectionality theory suggests.

This Note is important for several reasons. First, there is minimal research on the experiences of queer female asylum seekers, and almost no research on asylum adjudication in New Zealand. Second, from a practical standpoint, this Note empirically demonstrates that queer women are potentially being forced back into persecution because judges do not have a proper understanding of queer female sexuality.