Gender-related persecution of refugee women is a complex yet minor literature of Australian refugee determination. Women's human rights and their asylum claims are inextricably linked. This understanding is reflected in the development of United Nations standards that recognise gender-based persecution of women. Despite rhetorical flourish, the Australian refugee determination system chiefly applies a male-as-norm interpretation. As the major source of women's differentiation, this insider/outsider construction of women as asylum-seeking subjects is central to the present study. At the same time, this study takes into account the extent to which women benefit equitably from protection and how gender, mediated by other social considerations, constructs their experiences of claiming refugee status. By turning to texts as well as the law, the analysis proposes to uncover the subjectivities and the relations of power that influence determination outcomes.
This thesis explores gender within the meaning of the United Nations Convention Relating to the Status of Refugees and its framework of understanding developed in Australian jurisprudence, specifically through full text decisions of the Refugee Review Tribunal. Inflected with feminist, poststructuralist and Foucauldian approaches, this thesis tracks competing discourses and undertakes a genealogy of women's human rights and its liberal foundations. Such foundations influence and in many ways constrain current theoretical conceptualisations. In contrast, this thesis looks to the emergent possibilities of a feminist/Foucauldian/poststructuralist analysis using language, discourse, difference and deconstruction/denaturalisation to unsettle the dominant and dichotomised thinking that surrounds the gendered refugee as both a social and legal subject.
Absent from an Australian perspective is a representation of the female asylum-seeking experience with no extant statistical or critical assay. Through both quantitative and qualitative means, this study seeks to address these shortcomings. The first phase constructs a necessary statistical profile. In terms of broad comparative findings, data reveals that women (as a quarter of all primary claimants) meet the Refugee Convention definition in less than two per cent of cases. This is significantly lower than the already low eight per cent for remaining applicants. Demographic data extracted from decision texts establishes a profile of female asylum describing claimants' country of origin, age, ethnicity, family status, employment and educational attainment.
The second and major phase of the research uncovers the discursive construction of female refugee claimants by investigating the dominant constructions within the legal framework of interpretation, before undertaking a more focussed linguistic and discourse analysis. A concordance of findings across both qualitative methods reveals an interpretive schema that requires persecution of women to be extreme, multiple and sexualised. Rape is the essential element in the validity of women's claims. Harm, gendered or otherwise, requires the involvement of state actors and a necessary association with male family members' public activities. Indeed, women's individual claims to political participation and resistance are marginalised and depoliticised, or simply not believed. In particular, gender-specific persecution receives greater recognition if the woman hails from a dysfunctional and overly patriarchal state. Racial stereotypes, in turn shape how decision makers respond to various groups of asylum seekers.
The strength of combining three broad theoretical and methodological approaches (feminist, poststructural and Foucauldian) has been the capacity to build up the analysis by incorporating major concepts - discourse, power/knowledge and subjectivity - to the analysis of refugee determination. Undoubtedly these approaches offer ways of elaborating or reconstituting what interpretative practices of refugee determination are engaged in producing. Importantly, these perspectives have enabled the denaturalisation of gender and other social differences within the determination texts.