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Berkeley Journal of Gender, Law & Justice

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While the High Court in Australia has made it clear that discretion is not to be considered when determining if an applicant may avoid persecution upon returning home, there are concerns that discretion persists in the decision-making process with respect to discrediting identity claims. In addition, the Supreme Court of the United Kingdom handed down a retooled formulation of discretion, which once again created subcategories of applicants and suggested discretion is an appropriate consideration so long as it is not exercised out of a fear of persecution. This discussion will focus on a comparison of the evolution of LGBT asylum claims in Australia and the United States. In addition, at least one recent decision from the Supreme Court of the United Kingdom will be included as a high-level judgment from a similarly-situated common law receiving country, which is crucial for a deeper understanding of the nuances of discretion, particularly as applied in Australia.

Part II of this paper will examine and compare how the LGBT asylum process has evolved—specifically vis-à-vis identity and discretion—in the United States and Australia, which can help highlight some of the issues driven by improper application of Western essentialist LGBT definitions on asylum claims. Part II will also analyze the concepts of refugee and asylum law internationally, as well as the concerns of the gay international community with respect to asylum law globally. Parts III and IV will review the asylum process for LGBT asylum applicants in the United States and Australia, respectively— with a focus on identity, discretion, and persecution. Part V discusses the intersection of discretion and identity and what can be done to more appropriately address asylum claims based on sexual identity or orientation against a backdrop of prevalent anti-immigration sentiments in both countries. Finally, Parts V and VI will make suggestions for moving forward in making the asylum process in both countries more equitable for LGBT asylum applicants.



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