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.