Gay? You can stay - as long as you like Madonna.

Political and religious refugees have long been part of the Australian political landscape but now a new class of asylum seekers has put the Refugee Review Tribunal in the spotlight for all the wrong reasons. HANNAH FRANK reports.

While Adelaide celebrates sexual diversity at this year’s Feast Festival, homosexuality remains a crime in 77 countries where gay men and lesbians face penalties from flogging to prison and even the death sentenceProgress is slow. In China sodomy was decriminalized in 1997, but homosexuality was still considered to be a mental disorder until 2001.

Refugees who identify themselves as gay and lesbian fleeing persecution can apply for humanitarian visas in more liberal countries like Australia, but despite the well-documented discrimination, harassment and violence that they have often endured the success rate for claims based on sexuality is low. Between 1994 and 2000 only 26% of gay men and just 7% of lesbian applicants for refugee status were granted a visa.

These findings were published in a study by Jenni Millbank, who is the Professor of Law at the University of Technology in Sydney a widely published expert in refugee law. She says the figures reflect the difficulty of being recognized as a refugee on the basis of sexuality in Australia. So why is it so hard getting here when you’re queer?

Those who come to Australia seeking asylum as refugees under the humanitarian visa program for any reason face a grueling series of assessments including the Refugee Review Tribunal (RRT) before their application can be accepted or rejected. It is this body, the group of final decision makers for the visa program, who have been put in the spotlight for their approach to sexuality claims after the case of Ali Humayun, a 26-year-old Pakistani Christian who was denied a visa after the RRT judged that his homosexuality was a result of his detention in Australia.

Humayun, who said that he feared for his life if he returned home, identified himself as bisexual before entering a relationship with Julio Lorenzo, a 41 year old Spanish citizen, at the detention center in 2006. The judgment rejected Humayun’s claim on the basis of inconsistent evidence, saying that his relationship with Lorenzo was ‘simply a product of the situation, where only partners of the same sex are available…[it] says nothing about his sexual orientation’. Humayun had already told the tribunal that his father had threatened to kill him if he returned home to Pakistan. Interest groups labeled the deicion as ‘homophobic’ and held vigils as part of International Day Against Homophobia.

The central task of the RRT is determining the credibility of the applicants, in other words, whether they really are gay or not. Though the RRT no longer uses the invasive and humiliating techniques of penile plethysmography or anal examinations to determine whether an applicant is gay, before June 2007 members of the RRT had no sexuality training despite making hundreds of determinations which saw visa applicants rejected or accepted based solely on this issue.

This has led to the application of highly generalized, inappropriate stereotypes to determine an applicant’s claim, according to Millbank. This was highlighted in a case where an Iranian asylum seeker, claiming to be gay and in fear of his life if he returned home was quizzed by an RRT member whether he admired Madonna, and what he thought of the work of Oscar Wilde.

When he replied that he had no idea what they were talking about, the member told him that he obviously not gay, because he couldn’t relate to any gay icons. But the case went to the High Court and it was determined that the line of questioning was appropriate in the circumstances. The assumption that an Iranian should identify with gay Western icons was troubling for Millbank and refugee advocacy groups who had supported the case.

How you determine homosexuality is central to the problem, says Millbank. “The decision-makers’ understanding of what homosexuality is and how it is and ought to be expressed is… vital in the decision making process”.

In an article for the Australian Gay and Lesbian Law Journal lawyer Karen Walker says that for applicants who apply for refuge on the basis of their sexuality, they have to make their sexual identity fit in with the pre-conceived ideas that the members of the RRT have about what being a homosexual is. “What such a claim requires is that the individual concerned present [themselves] to the immigration authorities in a way that is cognizable and acceptable to those authorities”.

A landmark decision in 2003 has since given the issue more weight after the High Court considered the case of a gay Bangladeshi couple who had arrived in Australia in 1999 seeking refugee after being sentenced to death by stoning by a religious council in their home country.

The significance of the decision centered on the judgment which indicated that sexual orientation could be considered a ‘social group’ under the international convention on refugees. The barrister for the men, Bruce Levet said the decision would have an impact on jurisprudence around the world.

"It's the first time anywhere in the world that a final appellant court of a country has considered a refugee claim based on the grounds of sexual orientation. Not only is it a statement of what the law is in Australia, but because refugee decision makers around the world look at each other's rulings very closely, it's got a huge potential to influence decision making and jurisprudence in all countries which receive refugees”.

The key issue in this case was discretion, and whether the men could have avoided persecution had they been discreet about their relationship. It’s a consideration that has long been employed by the RRT to determine whether the applicant would indeed suffer persecution if they returned home, and thus, their eligibility for a humanitarian visa. But in his winning appeal Levet argued that the approach was unfair, comparing it to Anne Frank’s story during World War Two.

“To say to a homosexual: ‘Be discreet about it, you'll be all right', was about the equivalent of saying to Anne Frank if she turned up to Australia: 'Go back to your attic . . .keep hiding and you'll be OK’”.

But this has been the ruling on many of the claims that have already passed through the RRT, with applicants forced to return to their home countries and, often from family members and police officers.

According to a submission to the Equal Opportunity and Human Rights Commission by the Alternative Life Styles Organisation, this has meant that homosexuals who have been denied refugee status in Australia have been forced to live secret lives in their home countries and are treated differently to other classes of refugees, who are protected when they express their beliefs.

But for some applicants ‘discretion’ is only achievable through celibacy. In one case involving a Chinese lesbian applicant who had been rejected by her family and harassed by authorities, a visa was denied on the basis that if she didn’t have any sexual partners then she wouldn’t have harassed.

The RRT saw this as an acceptable resolution. But for those who wish to express their sexual identity and enter same sex relationships, keeping secret can be difficult. If discovered, many face threatened and actual violence, harassment and even execution, from family members but also religious fundamentalists sometimes police.

The High Court case challenged this process after an appeal was sought for the two Bangladeshi men who had been told that they, similarly to other applicants, could have avoided persecution if they had been discreet about their relationship.

In an ABC interview for the Law Report in June 2007, Millbank explained the decision of the RRT and the impact it would have on the way that the RRT determines claims.
“What the case said was, 'Well, first of all the Australian system cannot impose or require that [discretion] of anyone; it's not the place of the [Refugee Review Tribunal] to tell people how to live their lives; the role of the process is to ask the question: How will you live your life? And why, if you have lived a life of secrecy, why have you done so? And if you've done so because of terrible risks or really significant fears, then does that rise to the level of persecution as defined by the Refugees Convention?'

And the High Court very powerfully said there's so many more components to a gay identity which may include expression of that identity through having a same-sex partner, through living with them, through wanting to have a social life in which you mix with people who are also gay, and express that aspect of your life in a really wide range of ways, that go far beyond a simple sexual act.”

So whilst applicants now have a slightly better chance of succeeding in their claims for a visa, the RRT continues to be plagued by attacks on their so-called ‘independent’ sources of information which are used to discredit applicants.

Government cables from the Department of Trade and Foreign Affairs were used in 48% of cases between 1994-2004, but they have been proven wrong. One said that homosexuality is not illegal in Bangladesh It is. Millbank found that where DFAT evidence was used, almost 90% of applicants were unsuccessful – more than double the general fail rate of refugee applicants.

More troubling perhaps is the use of gay travel magazine ‘Sparatacus’ by the RRT as a source of law. Because the RRT is not bound by the normal rules of evidence, which would make the system unusable due to the reliance on verbal testimony from applicants, members can use sources of information that would never be permitted in a normal court of law.

Between 1994-2000 the magazine, which is a tourist publication filled with advertisements featuring naked and half naked men, was used as a source of law in 26 cases. Despite being publication especially for gay men, Millbank says the RRT also found no qualms in applying the information it contained to lesbian applicants.

She says in one 1999 case from Columbia citing venue listings for porn cinemas and bath houses as evidence that the two women would not suffer persecution if they returned back to their country. It’s enough to incense legal experts like Millbank. “There is no logical reason to think that any lesbian should know where to find a gay men's bath house”. In every case where Spartacus was applied to lesbian applicants in the six-year study, they lost.

All in all, the RRT clearly still struggles to cope with the concept of sexuality as the basis for refugee claims, but the upside of the many cases in which vias have been denied is that flaws in the system have allowed expers like Millbank to embark on campaigns to change things for the better.

In June 2007 after the RRT rejected the application of 26-year old Ali Humayun’s visa on the basis of his ‘situational homosexuality’, the ABC reported that the RRT had confirmed it’s ‘commitment to developing sexuality training for its members’ after Greens Senator Kerry Nettle took up the issue with Principal Member Steve Karas AO at a Senate Estimates Committee meeting.

However at November 2007 the RRT website still maintains the Guidance on the Assessment of Credibility - October 2006 as the manual to determining claims for refugee status. No part includes any mention of sexuality of guidelines for determining claims based on sexual orientation. Clearly, progress for recognition of gay and lesbian rights is not only slow in developing countries like China.

Australia still has a long way to go in terms of its support systems for refugees and issues like mandatory detention will continue to occupy much of the current debate on refugee issues. The High Court decision offers some limited hope for applicants in specific situations but more broadly the indicators point to a continual under-representation of refugees granted a visa on the basis of their sexual orientation.

The decisions that the RRT makes in their day-to-day dealings can be the difference between a life of relative freedom and one of fear, but it remains to be seen if RRT members will be given enough tools to make accurate and fair determinations on the lives of refugee applicants. But if this happens and politicians, interest groups and government work together towards a new system, maybe one day gay and lesbian refugees will stand alongside other loud and proud performers at the Feast Festival and tell their own stories in newfound pride and freedom.