O’hara, ‘The gap between immutability and perceptibility’, 2013

Subject Area

Sexual Orientation/Sexuality






Americas | International | Oceania

Year Published



Claerwen O’hara, ‘The gap between immutability and perceptibility: Issues experienced by sexual minority asylum seekers in the context of the “membership of a particular social group” ground’, 2013


Despite the persecution of sexual minorities being a widely-recognised ground for claiming asylum, this category of asylum seekers still experience a plethora of problems. This is especially so for applicants who fall outside of the homosexual/heterosexual binary and those who express their sexuality in a way that lacks visibility. This paper examines difficulties experienced by sexual minority applicants that pertain to the relationship between their sexual identity and the legal tests used to establish the ‘membership of a particular social group’ ground. This is done through a comparative
analysis of Canadian and Australian refugee law. It will be demonstrated that, in different ways, both jurisdictions’ ‘membership of a particular social group’ tests are problematically narrow in their construction of sexual identity. This situation sits uneasily with human rights principles, which, as will be argued, are one of the key purposes of refugee law. As such, this paper ultimately recommends a broadening of the relevant tests in order to overcome these difficulties and, thus, bring this area of law into line with its human rights purpose.