Connie Oxford Responds to James Hathaway & Jason Pobjoy

by NYU Journal of International Law and Politics

Panel 1 of the NYU JILP Vol. 44:2 Online Symposium

 

Connie Oxford is Assistant Professor of Gender and Women’s Studies at the State University of New York, Plattsburgh. Her publications include Queer Asylum: U.S. Policies and Responses to Sexual Orientation and Transgendered Persecution in Shifting Control: Gender and Migration Policy, 1917-2010. Marlou Schrover and Deidre Moloney (eds.) Amsterdam, Netherlands: Amsterdam University Press.

 

In Queer Cases Make Bad Law, James C. Hathaway and Jason Pobjoy criticize decisions of the High Court of Australia and the Supreme Court of the United Kingdom regarding two queer asylum cases, respectively, S395[1] and HJ and HT.[2] They argue that while in each case, the applicants were rightfully granted asylum, each Court erred in its legal logic, and therefore, strayed from “accepted refugee doctrine.”  Their critique rests on a model of persecution that differentiates the physical realm of harm (exogenous) from psychological harm (endogenous).  They conclude that the two gay Bangladeshi men granted asylum in Australia and the gay Iranian and Cameroonian men granted asylum in the UK had “no well-founded fear of exogenous harms” even though this was the basis of the Courts’ favorable judgments.  Conversely, the Courts were silent on the claimants’ experiences of “severe psychological harm” that instead, according to Hathaway and Pobjoy, should have formed the logic of these decisions.  In this brief response, I address the idea that gay men who “opt for seclusion” face only a well-founded fear of endogenous harm and not one of exogenous harm.

The lynchpin of Hathaway and Pobjoy’s argument is a dichotomous classification of persecution for gay men.[3] They designate outward bodily harm, such as “prosecution or beatings” as exogenous and inward psychological harm that “follow[s] from self-repression (anxiety, paranoia, disassociation, or worse)” as endogenous.  Although they do not state explicitly that all forms of persecution are necessarily one or the other, the examples offered imply that the harm itself is mutually exclusive to the body or mind in their taxonomy of persecution.  Nor do they suggest whether the exogenous/endogenous binary is specific to queer cases or applicable to claims of persecution based on other grounds such as religion or political opinion that they compare to social group.  I take issue with two implications of the exogenous/endogenous model.

First, I find problematic the binary logic embedded in the exogenous/endogenous framework for ascertaining harm.  This is not to say that persecution cannot be solely physical or psychological at times, but rather it is not always exogenous or endogenous.  Whether Hathaway and Pobjoy are advancing the notion that harm must always be one or the other is not clear, and if this is their argument, then it certainly does not stand in the face of empirical examples of torture.  For example, studies of torture survivors show that psychological trauma, such as Post Traumatic Stress Disorder (PTSD), is routinely constitutive of (rather than merely a result of) physical harm.[4] The second implication of their argument that I want to address is the ways in which the exogenous/endogenous binary is applied to queer cases.

In Section I, Hathaway and Pobjoy question “how can an implausible risk be real?”  They reveal the seemingly contradictory logic that the High Court of Australia appropriated in the case of S395 when it concurred with the lower Tribunal’s finding that two Bangladeshi men “clearly conducted themselves in a discreet manner and there is no reason to believe that they will not continue to do so if returned home now.”   Also, they cite the United Kingdom Supreme Court’s reasoning that the Iranian claimant would behave “discretely” if returned to Iran and that the Cameroonian respondent would choose internal relocation to avoid persecution.  They argue that if gay men choose to refrain from actions that expose their identity as gay men, they would therefore avoid placing themselves in harm’s way that would result in physical (exogenous) persecution.[5] Consequently, there is no well-founded fear of persecution because discretion would ipso facto make physical harm impossible and, therefore, the justification that it would happen implausible.  Conversely, the act of suppressing one’s identity is persecution, according to Hathaway and Pobjoy.  They make a strong argument that behavior modification is itself harm (endogenous) and that this should have laid the foundational logic of the Courts’ decisions rather than a well-founded fear of physical harm in these cases.

Hathaway and Pobjoy’s argument about endogenous harm as persecution is laudable not only because they situate it in an existing body of law that “sits comfortably with international human rights law jurisprudence, and with the domestic jurisprudence of courts in the common law world” but also because it makes queer identity (or the suppression of queer identity) central to refugee determination.  In their implementation of refugee law, immigration officials, judges, and adjudicators the world over often do not consider psychological harm to be persecution.  Hathaway and Pobjoy’s article underscores the existing body of law that supports endogenous harm as a form of persecution.  However, the logical flaw that they purport to have found in the implausibility of exogenous harm is grounded in the assumption that identity is the sole purview of the persecuted.

In order to determine forward-looking persecution the applicant’s own past experiences coupled with country conditions are considered when determining whether the fear is indeed well-founded.  While not central to Hathaway and Pobjoy’s response, the claimants in S395 were found non-credible in their claims of past persecution.  The Court rejected their claims of torture and accepted that they had only been “shunned by their families” and were the “subject of gossip and taunts from neighbors” which did not meet the burden of proof that they were persecuted.[6] As shunning and taunting were the extent of their negative experiences, and the Court determined that there was no reason to believe that they would conceal their sexuality if returned to Bangladesh, then it follows, according to Hathaway and Pobjoy, that there is no well-founded fear of persecution.

What Hathaway and Pobjoy fail to address is the likelihood that gay men in Bangladesh can experience persecution regardless of their ability to conceal their identity.  Even if the applicants avoided the actions that Hathaway and Pobjoy consider “marginally connected to one of the forms of protected status” this does not necessitate the absence of persecution that they purport.  Homosexuals are routinely “outed” and subjected to human rights abuses.[7] Indeed, Hathaway and Pobjoy address the divide in the developing/developed world regarding human rights abuses against LGBTQ populations that undermine the potential for harm if returned to a country (such as those in question for the cases that they address!)  that routinely violate the rights of its LGBTQ citizens.

By focusing on the behavior of the applicants, the Courts (and Hathaway and Pobjoy) have ignored the role of the persecutor.  The Court determined that the applicants would conceal their sexuality not because the applicants indicated that they would do so but because they did not specify that they would not do so.  Hathaway and Pobjoy do not address how the applicants acquiesced in the Courts’ determination of this position.  Yet they do point out that the “applicants bear some measure of responsibility” by their failure to argue that the suppression of their identity would result in endogenous harm.[8] Nonetheless, the Courts’ findings in both S395 and HJ and HT that the applicants would be discrete in their sexuality is the articulation of the Court – not the applicants.  It may have turned out that the Courts were correct in their reasoning that concealing one’s sexuality would have prevented harm.  However, it may also turn out that the same behavior of concealment too could have resulted in persecution.

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1 S395 216 CLR at 473.
2 HJ (Iran) v. Sec’y of State for the Home Dep’t (HJ and HT), [2010] UKSC 31, [3], [2011] 1 A.C. 596, 619–20 (appeal taken from Eng. & Wales C.A.).
3 Hathaway and Pobjoy refer to the cases as “queer” because the “decisions confront the question of assimilationist assumptions in refugee law” and the claimants as “homosexual” or “gay” because they “did not themselves seek to challenge assimilationist assumptions” (note 1).
4 See John P Wilson and Boris Drozdek, Broken Spirits the Treatment of Traumatized Asylum Seekers, Refugees, War and Torture Victims (2004).
5 See Jenni Millbank, The Right of Lesbians and Gay Men to Live Freely, Openly, and on Equal Terms is Not Bad Law: Reply to Hathaway and Pobjoy for a more detailed analysis of the actions/identity binary that Hathaway and Pobjoy use and its implications for queer asylum.
6 S395 216 CLR at 473.
7 Hathaway and Pobjoy address the divide in the developing/developed world regarding human rights abuses against LGBTQ populations.
8 A separate argument can be made about the responsibility of the applicants’ counsels.
http://opiniojuris.org/2012/03/08/connie-oxford-responds-to-james-hathaway-jason-pobjoy/

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