Melbourne Law School - Theses
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ItemThe Political Dimensions of Intimate Partner Violence in Refugee Law( 2022)This thesis concerns refugee decision-making in claims of women fleeing a risk of intimate partner violence (‘IPV’) in their country of origin. Existing scholarship on these claims explains the conceptual challenges decision-makers face, including the ubiquity of IPV and its perpetration by non-state agents within a personal relationship. However, issues with the approach to and determination of these claims have not been resolved: women experiencing IPV are not consistently recognized as refugees within and across jurisdictions. While IPV remains an equally urgent social and legal issue, there has been a general shift away from gender concerns as a topic of deeper and innovative study. There is a notable absence of analysis on the application of the political opinion ground to the IPV context. Indeed, there is no consensus on the desirability and applicability of this ground in the context of such violence, even among scholars who otherwise support its broader use in gender claims. The thesis responds to these gaps in two ways. First, it draws on every publicly available IPV decision in five jurisdictions to provide an up-to-date understanding of IPV decision-making. This analysis reveals that decision-makers fail to define and adequately understand the key concepts of ‘gender’ and ‘intimate partner violence’ and that this failure underpins common and fundamental errors in interpreting and applying the refugee criteria. It also identifies that in these claims, decision-makers routinely fail to draw on typical normative and evidentiary frameworks supporting orthodox refugee status determination, engendering inconsistent outcomes. Second, in relation to political opinion, the thesis analyses the scholarly debate and case law concerning the political opinion ground in IPV claims against the international human rights framework and definitions of ‘political opinion’ in refugee law. It develops, through an exploration of real case examples, guidance for decision-makers on the application of the political opinion ground in this context. The thesis details how an IPV context may give rise to political opinions recognized under both contextual and formalised approaches to the definition of ‘political’ in refugee law. It also addresses the issue of ‘nexus’ to an opinion, which the case law analysis reveals is a previously underappreciated barrier to applying the political opinion ground in IPV claims. Finally, the thesis argues that the identified issues with IPV claims may be overcome by an ‘informed gender-sensitive approach’ to the decision-making process. It is suggested that decision-makers access subject-matter expertise, such as on the causes and dynamics of IPV, to ground gender-sensitive decision-making in this area. This thesis concludes that a renewed focus on the international legal framework and the political opinion ground in this context is crucial to improving adjudication in this area.
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ItemValuing women in Timor Leste: the need to address domestic violence by reforming customary law approaches while improving state justice( 2016)Domestic violence remains prevalent in Timor Leste and is widely considered a normal part of married life for Timorese women. Many women experience deep conflicts in how to respond to violence occurring within relationships that also offer love and children, and are typically at the centre of women’s social, cultural and economic lives. In this context, many see the option of seeking state help as demanding untenably high risks for uncertain overall gain, and fear it will ultimately entail even greater suffering for them and their children. While women who do seek help overwhelmingly turn to customary law systems, these operate within a patriarchal cultural framework that also produces and maintains wider community values of tolerance towards domestic violence. Within these processes, women often find themselves disempowered and dissatisfied with the outcomes they achieve, as they typically fail to recognise and address the violence or deter further abuse, resulting in human rights violations. Drawing on socio-legal tools of analysis, and through 110 detailed interviews with women who have experienced domestic violence and actors involved in customary law systems, this study argues that, despite their serious flaws, there is an urgent need for investment in reform of customary law systems to create an expanded menu of more effective options for women, to tackle the problem of domestic violence in Timor Leste. Using a feminist human rights analysis and critical anthropological theories of legal pluralism and cultural change, this study shows how a progressive realisation approach to reforming customary law norms and procedures by empowering women within customary processes and building on their protective aspects is not only justifiable, but also necessary and viable to better protect women’s rights and to discredit and change dominant attitudes towards domestic violence. While there is no standard script for addressing domestic violence or other manifestations of gender inequality in customary law systems, this research highlights conditions in contemporary Timor Leste and qualities of Timorese customary law systems that provide rich openings for creative reframing and reform of aspects of customary law practice. Expanding legal reform efforts to encompass both customary and state justice systems, while seeking to productively exploit the dynamics between them, provides the best prospects for protecting women and respecting their choices, while sustainably reducing the societal prevalence of spousal violence. This could create a model for change that might also contribute to broader efforts toward gender equality in Timor Leste. The field research undertaken provides a unique and powerful insight into victims’ varied perspectives on what they hope to achieve through interventions into violence, and a nuanced exploration of how customary law authorities see their roles and the potential of customary law systems to help reduce the incidence of domestic violence in Timor Leste. By combining academic analysis with primary field research covering two groups of informants whose views are often overlooked in the literature, this study makes an innovative and original contribution to the legal discourse around strategies for advancing gender equality and women’s rights in plural legal environments, and may have broader relevance in other contexts where women face similar challenges.