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University of New South Wales Law Journal Student Series |
SEXUAL ORIENTATION AND GENDER IDENTITY AS A BASIS FOR REFUGEE CLAIMS IN AUSTRALIA
WILLIAM BERTHELOT
The human rights infringements of sexual and gender minorities continue to be alarming as multiple countries maintain capital punishment for same-sex sexual activity, perceive homo- and trans-sexualities as antithetical to local culture, and regulate these identities as mental disorders.[1] Between 2009 and 2016 2,115 murders of transgender persons were reported worldwide with over 80% of incidents occurring in Latin America, and various jurisdictions including the United Kingdom[2] and the United States of America[3] have reported a surge in the number of homophobically motivated hate killings. While sexual and gender minorities have been recognised as a social group under the Convention Relating to the Status of Refugees (‘Convention’)[4] for decades,[5] these applicants face unique challenges in the refugee status determination (‘RSD’) process clear evidence of their persecution internationally. Applicants face invasive questioning over their private identities with respect to which they may feel shame; applicants’ testimonies are disbelieved on credibility grounds for lack of documentary evidence, and their fear of persecution is often dismissed based on decision-makers’ subjective beliefs as to what LGBTI[6] life ‘looks like.’ This essay will consider the structural deficiencies in the Convention definition by primary research conducted into recent Australian tribunal and case law, examining how Australian decision-makers have interpreted the definition and regularly departed from UNHCR guidance to the disadvantage of applicants. In preparing this essay, I examined Australian Administrative Appeals Tribunal and Federal Circuit Court decisions from 2015 to 2019 and extracted relevant cases where an applicant’s sexual orientation or gender identity (‘SOGI’) status was either a fact-in-issue or a relevant factor in the determination of their refugee status.
This essay will proceed by examining Australia’s refugee law regime and critically analysing each step of the RSD process with respect to LGBTI refugees, concluding that serious reform is needed in soft law policies to guide the boundaries of acceptable considerations that may be validly made by decision-makers in order to uphold fairness to LGBTI applicants and their rights to dignity in the RSD process.
Under international refugee law principally found in the Convention, an applicant seeking refugee status must meet, among others, three broad legal tests: that for reasons of race, religion, nationality, membership of a social group or political opinion, they have a well-founded fear of persecution, and they are unable or unwilling to avail themselves of the protection of their state.[7] The Convention is read in conjunction with the UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, a soft law tool that recognises the unique problems these applicants face and provides guidance to decision-makers.[8]
Australian courts have long recognised that applicants’ sexual orientation[9] or gender identity[10] may form the basis of a refugee claim as a ‘social group.’[11] Under Australian immigration law, the definition of a refugee reflects the Convention grounds, where Australia owes protection obligations, and grants protection visas,[12] to ‘refugees’ or other non-citizens who face a real risk of significant harm as a consequence of being removed from Australia.[13]
This essay will proceed by analysing these three fundamental grounds, and will argue that these grounds are inconsistently interpreted by Australian decision-makers, that SOGI applicants face unique disadvantages in the refugee status determination (‘RSD’) process, and that tribunals in Australia have failed to take the advice from the UNHCR Guidance Note under international law.
SOGI status is the basis on which applicants seek protection and the decision-makers’ definition of what constitutes that identity is necessarily vital in the RSD process.[14] These categories are subjectively interpreted by judges, and as immigration law as an institution has historically created artificial categories aimed at excluding SOGI minorities, it is necessary to interrogate what ‘sexual orientation’ or ‘gender identity’ means under the law.[15]
Sexuality incorporates a wide range of behaviours and identities on a spectrum of sexual behaviour,[16] and there are no universal features that typify sexual minorities’ identities or uniform ways in which LGB people recognise or act on their identities.[17] The Yogyakarta Principles define sexual orientation as a ‘persons capacity for emotional, affectional and sexual attraction to, and intimate relations with...individuals of...the same gender.’[18] Claims have been brought on Convention grounds have incorporated a wider range of persons including those who test positive for HIV regardless of sexual orientation, those who are viewed as ‘effeminate’ or ‘masculine but identity as heterosexual,’ and intersex peoples.[19]
However, sexual orientation has divergent meanings internationally and decision-makers have typically attempted to locate SOGI applicants within Western conceptions of gayness.[20] In many nations applicants may be married in heterosexual partnerships and have children, or are not homosexual within a Western liberated meaning of the phrase but bring their own cultural constructs to the meaning of sexual orientation.[21] Sexual orientation may be intertwined with gender identity, as many claimants fear persecution by refusing to adhere to ‘compulsory heterosexuality’ or the norms of male supremacy.[22] However, as models of sexual development have been predominantly built on American studies of white gay men, decision-makers’ understandings of sexuality are often parochial and refuse to accept these understandings.[23] By way of example, the Guidance Note emphasises it is entirely consistent for an applicant to pursue RSD on the basis of this Convention ground and have a heterosexual marriage, however Australian decision-makers continue to disagree:
His claim had been rejected in part because he was still pursuing what appeared to be a heterosexual lifestyle... This meant that the Tribunal did not accept that he ‘was likely to be, or have been perceived to be, a homosexual’.[24]
This reflects how poorly decision-makers understand bisexuality, where bisexual identities are rejected as ‘transient experimentation’ not constitutive of a distinct sexual identity.[25] For example, Australian tribunals have found that same-sex partners who pursued a relationship whilst in detention did so due to the scarcity of different-gender partners rather than any latent identity misunderstanding bisexuality as an act of convenience rather than a sexual orientation.[26] It is also in doubt whether bisexual claimants are a recognised social group under the Convention, as Australian courts have instructed decision-makers to consider claims for bisexuality in terms of whether an applicant would be persecuted ‘by reason of being perceived as homosexual.’[27]
Similarly, it is crucial to consider how courts understand transgender people as the law partially constitutes the gender categories it purports to regulate; [28] the way the law knows transgender claimants determines how they will be legally recognised, and what protections they will be afforded.[29]
Gender identity refers to a person’s experience of gender which may or may not correspond with their sex assigned at birth, including their ‘personal sense of the body,’ which may or may not involve modification of bodily appearance or external expressions of gender such as dress.[30] While in many nations gender is not viewed in the Western conception as totally distinct from sexuality,[31] courts expect applicants to have a clear understanding of their gender in language used in the contemporary west, often requiring them to assume a ‘born into the wrong body’ narrative.[32]
Courts have also narrowly conceived of gender identities in pathologised ways that fails to grant legitimacy to transgender applicants’ lives.[33] Applicants who express desire to medically transition are more likely to be successful, leaving open the question as to whether genderqueer or gender non-conforming individuals can be protected under the Convention.[34] As of July 2019, Australian tribunals suggest gender non-conforming individuals are not necessarily protected if they do not show consistent gender non-conformism which fails to recognise how past reprimanding of gender nonconformity may affect the consistent expression of their gender.[35]
These definitions show that unlike other grounds of the Convention it remains unsettled what it means to be a SOGI applicant, and courts regularly invoke their own Western conceptions of identities as benchmarks for measuring whether applicants are ‘gay’ or ‘trans’ enough, which leaves many applicants unprotected.
The increase in jurisdictions willing to recognise SOGI as a recognised ground for refugee status has been accompanied by an increased tendency to disbelieve applicants’ testimony of their identities.[36] While Guidance Note instructs decision-makers that self-identification should be the indication of an applicant’s SOGI unless there are ‘good reasons to the contrary,’[37] tribunals have inconsistently applied this principle. Unlike other grounds that often have other independent verification of membership, sexual orientation depends upon presentation of a private and internal form of self-identity,[38] and documentary evidence is regularly scarce meaning applicants struggle to prove membership of a social group.[39] This section will consider the credibility challenges applicants face in proving SOGI status and the stereotypes relied upon by decision-makers in SOGI status determination.
Credibility is relevant to proving whether an individual is or is perceived to be a member of a social group, and the process is regularly problematic due to the absence of sensitivity and awareness on the part of adjudicators. In Australian courts it is well-recognised that an applicant’s credibility may be ‘so weakened’ that decision-makers are entitled to ignore all corroborative evidence as having no weight,[40] including expert evidence, medical reports or witness testimony,[41] meaning the rules surrounding credibility assessment are often determinative of an applicant’s claim.
First, SOGI applicants struggle disproportionately in adducing documentary evidence to support their credibility claims as often their testimony is the sole source of evidence.[42] Documentary evidence is structurally unavailable to these claimants, as their identities are usually experienced in secret for fear of repercussions and the dynamics of RSD interviews impact the willingness for applicants to be forthcoming with information.[43]
Where applicants are able to bring witness testimony or documentary evidence, decision makers often give the evidence little weight as it is ‘fabricated, staged, or self-serving.’[44] Tribunals are also quick to dismiss witness testimony as hearsay:
No weight was given to the evidence of the applicant’s witnesses because they could shed no light on any aspect of his homosexuality, as both had simply stated that he had told them he was gay ...[45]
Secondly, even where documentary evidence can prove an applicant’s SOGI, it can be deeply traumatising and humiliating to produce and courts still find ways to render the evidence unpersuasive.[46] Rendering this evidence admissible creates perverse incentives for applicants to expose private parts of their sexual identity to complete strangers, however Australian courts have repeatedly accepted this evidence as admissible.
In SZQYU, the joint applicants recorded a video of sexual acts which was provided to a medical professional who testified as to the applicants’ sexualities, however this was rejected as the applicants did not admit the evidence to the tribunal.[47] In SZRQR, the applicant’s photos intimate engagement with his male partner were not probative as it fell short of the standard of ‘sexual engagement’ to prove the sexual orientation of the applicant.[48] Even where sexual photos were tendered in SZUCC, they were summarily rejected for appearing ‘staged and dispassionate’ and for being taken on a ‘hand-held iPhone.’[49] Applicants are in an unwinnable situation where applicants degrade themselves into revealing embarrassing or humiliating information and tribunals continue to find the evidence unpersuasive.
Lastly, while academic commentary has suggested the use of medical reports do not serve a legitimate purpose in proceedings as SOGI is not an illness, medical reports continue to be requested by decision makers.[50] For transgender applicants, tribunals have repeatedly failed to respect transgender identities that are not ‘proven’ by medical evidence, such as deliberately misusing applicants’ pronouns,[51] or only acceding to using requested pronouns ‘as the tribunal finds...the applicant is a transgender person,’[52] rather than the self-identification principle recognised by the UNHCR. As transitioning is often not legally, medically or socially possible in a country of origin, requirements for documentary evidence often harms the most vulnerable transgender applicants. [53] Even where expert reports are adduced, for example in one case where an individual attended over 50 counselling sessions with a social worker leading her to believe that there was ‘no doubt’ as to the applicant’s homosexuality,[54] these reports can be dismissed if the tribunal believes these sessions were concocted to further a refugee claim.[55]
Applicants’ claims are also attacked on the grounds that their account of their SOGI status is ‘inconsistent with a homosexual narrative.’[56] The ‘linear model’ of sexuality development that suggests sexuality is knowable at a very young age and is acted upon consistently throughout one’s life is contingent on American studies on gay men which differs internationally.[57] However, adverse credibility findings may be made on the basis an applicant failed to disclose their SOGI in initial interviews.[58] The failure to recollect a series of homosexual acts in an applicant’s youth not only is often a result of heterosexual experiences engaged in as an attempt to escape homophobic violence, but academic scholarship suggests faulty memory is symptomatic of dissociation or post-traumatic stress disorder that may arise in high-stress RSD interviews, particularly given the high rate of SOGI applicants who have experienced sexual assaults.[59]
Transgender applicants in particular are expected to identify as transgender upon their first interview despite frequently they may be coming to terms with own transgender status.[60] The expectation of a consistent gender identity across one’s life leads to denial of applications of genderqueer individuals, such as where a transgender child reported they felt ‘equally male and female on a gender slider test,’ which the court interpreted as the child not being transgender as their feelings ‘fluctuated.’[61] This is particularly problematic, as past punishment for gender nonconformism can influence an applicant’s willingness to present differently in public contexts. These examples show that the definition under the Convention is interpreted as requiring one homogenous identity, which poses unique challenges to members of the LGBTI community.
Decision-makers also typically rely on three broad categories of personally-held stereotypical assumptions in rejecting SOGI claims: that the applicant lacks inherent features of LGB identities, such as not wanting to have children or ‘gender trouble’; that LGB people form coherent cultural groups with common tastes and interests; and that LGB people must have always known their identity.[62]
Firstly, Australian tribunals have regularly dismissed applicants who fail to fit into Western stereotypes of gayness, as the Full Court of the Federal Court has held that it is entirely legitimate for tribunals to test applicants’ knowledge of the homosexual community in Australia[63] by quizzing applicant’s knowledge of gay ‘trivia’.[64] This approach is problematic as gay scenes in the country of origin may not exist and applicants may be struggling with their identities in the receiving country meaning they may not be comfortable entering a ‘scene’.[65]
For example, the Federal Court in SZTGV found that:
The applicant’s limited knowledge of the LGBTI community in Sydney was at best superficial, and he was not aware of when Mardi Gras takes place...he was unaware of gay publications or internet sites in Australia. The tribunal considered all the evidence before it and finds that the applicant is not credible in relation to his claimed sexual orientation.[66]
Similarly, in SZTIN:
The Tribunal was of the view that the Applicant had neither explored any homosexual behaviour nor sought to live a genuinely homosexual life in Australia’... ‘Nor was the tribunal satisfied that the applicant had subsequently explored the Sydney gay community. It had regard to the fact he could name only two gay sites on Oxford Street, both of which were said to be very prominent, did not know the name of the main Sydney gay newspaper, and could name only one gay website that he had visited.[67]
Two additional cases from 2015 made similar findings,[68] which reproduces the offensive notion that the LGBTI community has homogenous cultural interests, and also imposes a higher standard on LGBTI applicants to prove a high level of research with and cultural engagement in a new and foreign community than other Convention ground applicants.
Secondly, tribunal members often rely on offensive characterisations of applicants’ appearance in assessing whether they are truly a transgender refugee,[69] as it is believed gender is discernible from bodily presentation. Tribunals regularly rely on prescriptive assumptions of what transgender people look like to prove their ‘trans-ness’, despite the fact international courts have consistently emphasised the fact that gendered stereotypes should not affect credibility determination.[70]
For example, the Tribunal in 1610283 incorrectly noted the definition of a transgender person, and commented that:
The applicant left Malaysia because she is a transgender person – a male dressed like a female...the applicant attended the hearing dressed as a woman (the delegate’s decision record indicates that the applicant also attended the departmental interview dressed as a woman.[71]
Similarly in 1506440, the tribunal used bizarre stereotypical assumptions that a child could not be transgender as the child had ‘male as well as female friends’ and ‘had his [sic] hair cut to attend school’, failing to realise that it was possible the child’s previous harassment based on their feminine appearance may have led to the child suppressing their identity.
Evidently, courts approach credibility assessment on the basis of their own personal assumptions about how SOGI applicants should behave and what they should look like. This clearly demonstrates that the Convention, supplemented by the Guidance Note does not go far enough to circumscribe the limits of offensive questioning, assumptions on which decision makers rely, and admissible evidence in the RSD process.
While some effort has been made to give definition to the concept of ‘persecution’, no specific guidance is provided by the Convention or Guidance Note as to what constitutes serious harm of persecution. This standard requires a subjective fear objectively justified, often by reference to Country of Origin Information (‘COI’).[72] However, tribunals have demonstrated a willingness to dismiss SOGI claimants’ fears of violence as mere ‘discrimination’ which is insufficient under the Convention, and often rely on subjective interpretations of COI leading to dismissals of claims.
A significant challenge for SOGI refugee applicants is demonstrating they have a well founded fear of ‘persecution’ rather than discrimination, and changing attitudes to homosexuality in historically homophobic jurisdictions has made it more difficult for applicants to prove this specific claim.[73]
The UNHCR Handbook[74] states that discrimination amounts to persecution where it leads to ‘serious restrictions of a substantially prejudicial nature on the person, such as rights to employment, free exercise of religion or access to education’,[75] however decision-makers have not applied these standards consistently.
Firstly, while significant physical harassment can constitute serious harm, in 1703990 the tribunal found generalised transphobic harassment was insufficient as it merely constituted verbal abuse or discrimination, and ‘official state discrimination’ was low. Part of this finding relied on the strange assertion that transgender applicants were resilient enough to withstand this abuse or could make friends online:
Far from being passive pitiful victims, [transgender people] are able to exert a high degree of agency in asserting their own sense of gender identity...despite the continuing stigma...further...the emergence of cyberspace has opened doors for many transgender individuals...to make friends and share information about gender identity.[76]
The same tribunal also found that denial of employment, despite being recognised in the UNHCR Handbook, was insufficient to prove persecution even where it placed the applicant in a ‘low standard of living,’ as the applicant had to prove it was ‘highly improbable that they would gain any form of gainful employment’.[77]
Secondly, despite international courts[78] and the Guidance Note clearly finding that forced heterosexual marriages are conduct amounting to ‘persecution,’ the Federal Circuit Court in SZSVC found the contrary:
Nor was the Delegate satisfied that there was a real chance that the applicant faced harm amounting to serious harm from his parents and family should they attempt to force him into an arranged marriage.[79]
Thirdly, it is well accepted that applicants are not required to live ‘discreetly’ to avoid persecutory harm as being compelled to hide one’s SOGI ‘in and of itself amount[s] to persecution,’[80] Australian tribunals have accepted that the degree of flamboyance of an individual is a relevant factor in determining likely persecution:
The applicant is not a flamboyant person who would flaunt his sexuality, but is naturally discreet. Accordingly, this trait would minimise the extent to which societal disapproval in Nepal may impact him, particularly in relation to open displays of affection, which the applicant claimed attracted harassment.[81]
This clearly raises consequences for bisexual or non-stereotypical applicants chances of a positive RSD finding, and overlooks the fact that applicants may be coerced into passing as cisgender or heterosexual, putting vulnerable applicants at risk. Even where they may not face criminal prosecution as they can hide their identities, they may still live in atmospheres of homo- and transphobic alienation which would radically impact their quality of life. This latitude and lack of direction tribunals are given in determining persecution has led to widespread dismissal of applications on subjective interpretations of harm to the applicant, even in the face of clear infringements of human rights or conflicting international precedent.[82]
Australian tribunal decision-makers have interpreted COI inconsistently in recent cases to dismiss evidence of applicant’s claimed persecution, and RSD outcomes demonstrate how this evidence faces several structural deficits in the way it is collected by organisations and used by authorities in first contact interviews.
Firstly, decision-makers in several recent tribunal decisions have placed undue emphasis on the existence of criminal statutes that punish homosexual acts to prove homo- or transphobic state attitudes, and even where these statutes exist, have interpreted these inconsistently. Decision-makers are instructed by the Guidance Note to analyse the scope and enforcement of criminalisation laws, however there is considerable disagreement in international courts as to whether rarely-enforced criminal laws are sufficient to prove persecution, notwithstanding the fact they contribute to a climate of homophobia within a state.[83] The reliance on criminal statute operates to the disadvantage of female applicants who face uniquely private forms of domestic violence, discrimination in adoptive and custody matters and infringements on the right to their private life, as these matters are only persecutory based on ‘fact or degree.’[84]
Secondly, COI is heavily relied on by tribunals however in Australia it is well established that ‘the selection of country information and weight placed on it are matters for the Tribunal’[86] which has facilitated tribunals’ selective and inconsistent use of evidence to the disadvantage of claimants.
COI itself faces structural deficits in its reliability, irrespective of how the information is used, for many reasons. As RSD has increasingly moved to complex issues of fact and law, general documentary evidence on state attitudes increasingly falls short of the meeting the evidentiary tests required to be proved by a tribunal, such as proving whether an ‘internal flight alternative’ is available, the attitudes of non-state actors, or existence of discrimination against sub-groups of the LGBTI community.[87] Inappropriate sources are often cited by the tribunal such as gay travel magazines consistently used in Australia, and legitimate reports from LGBTI organisations are often dismissed as biased or are unavailable due to increasing counter-violence against LGBTI groups.[88] In some cases, the mere presence of LGBTI organisations is taken to mean that state attitudes are non-persecutory even in circumstances where LGBTI conduct is criminalised, and COI is often collected for information on one LGBTI subgroup and misused for another. For example, in one recent matter concerning a transgender man from Vietnam applying for a refugee protection visa in Australia, the tribunal noted that changing attitudes to same-sex marriage counterbalanced his claims of transphobic government attitudes evidenced through bans on gender confirmation surgery, without any explanation as to why this was relevant:
Transgender people often cannot access gender confirmation surgery...however while same-sex marriage remains illegal in Viet Nam, it is an issue of public discussion and interest.[89]
Importantly, gaps in COI are often taken to mean there is no risk of persecution to LGBTI applicants, as it is believed little evidence of discrimination means authorities leave minorities alone.[90] For example, the Court in BZD17 found that it was intuitive any discrimination or deaths in Cameroon would be reported on if they existed:
In an age of social media...information regarding the alleged assault could have been passed on anonymously to activists outside Cameroon...it is reasonable to believe that [internet reports of deaths in Cameroon] have been posted on social media, then the account of the applicant’s assault would also have been reported on. Surely given the presence of gay rights groups there would have been some way of getting this information out.[91]
The continuing stigma against LGBTI people internationally means that access to documentary COI is unavailable, and where it does exist, tribunals are expressly permitted to selectively use the information to the disadvantage of applicants. These deficiencies in the RSD process uniquely harm SOGI applicants given the private and internal nature of their claims, and systemic reform is needed in terms of limits on the collection and use of COI to ensure fairness to these applicants.
The Convention requires applicants to prove that they are unable, or owing to their fear of persecution unwilling, to avail themselves of the protection of their country of origin.[92] However, in what has been described as a ‘perplexing oversight’ the Guidance Note does not address this question despite its prominence in SOGI claims, as rebutting the presumption of state protection is harder for SOGI applicants as in many cases their identities are criminalised, or declaring their SOGI status puts them at risk of immediate violence.[93]
Where a state is the persecutor, torturer or promulgator of discriminatory laws, international case law suggests it is clear that the State is taken to be ‘unwilling’ to provide protection,[94] however LGBTI applications struggle to prove states are unwilling to protect them when states are merely latently homophobic or transphobic.
Firstly, where private violence committed by individuals as opposed to state action is the relevant ‘persecution’, many states deny these problems occur at all,[95] and states rely on the existence of antidiscrimination laws which may not be implemented in practice, which raises questions over whether the state is ‘unwilling’ to protect.[96] The UNHCR has suggested that where it can be established there is a refusal of authorities to investigate or punish actions against LGBTI individuals state ‘unwillingness’ to protect can be inferred, however this depends on proving evidence which often turns on an applicant’s credibility, as mentioned above. In some European states, applicants are not required to exhaust this ground where attempts to invoke protection are ‘clearly dangerous or pointless’,[97] however Australian courts have found in several instances that despite homo- or transphobic state attitudes, the existence of LGBTI NGOs can be sufficient to prove that state attitudes are not as discriminatory as suggested by an applicant and that they should have attempted to avail themselves of that country’s protection.[98]
Secondly, even where on face value a state appears to be unwilling to protect, SOGI applicants have difficulty in accessing information which proves attitudes of state violence. As criminal sanctions deter people from seeking assistance in the first instance, applicants struggle to find data points to prove the suggestion that individuals are turned away by authorities, as individuals never seek the assistance of their state for fear of violence from being outed.[99]
What this information shows is that the collection of COI is crucial to prove applicants claims, however noting the structural deficiencies mentioned above, even where it is adduced, decision-makers impose significant evidentiary barriers on applicants to prove the discriminatory attitudes of states who may not have formal policies of discrimination. This is an impossible feat for many applicants who may have limited experience with authorities due to fear, or due to the particulars of their case may fear specific agents within the government that have persecuted them in the past via private or clandestine means.[100]
In assessing whether states are willing to protect individuals, decision-makers may determine that the claimants can avail themselves of a safe place internally within their country of origin, which has been increasingly assessed for SOGI applicants given their persecution can vary significantly within a nation. However, this process of proving an ‘internal flight alternative’ has been problematically applied by decision-makers.
Firstly, independent country information often does not probe the reality of issues in all parts of a country, making it difficult to assess attitudes without resorting to reductive indicators. For example, in 1213081 the Tribunal found the mere existence of a gay pride parade indicated tolerance towards homosexuality in major Indian cities despite the fact that homosexual sex was still criminalised nationwide.[101] Additionally, there is a structural lack of information to address the highly specific legal concept, as international human rights conduct fact finding of LGBTI persecution to influence public opinion, rather than to meet the legal test of an ‘internal flight alternative.’[102]
Secondly, tribunal members are increasingly willing to find internal flight alternatives on the basis of fairly specious assumptions from decision makers about ‘changing attitudes’ within a country’s cosmopolitan cities even where this conflicts with an applicant’s real account of persecution. For example, in SZSVC the applicant testified to being harassed and beaten due to his homosexuality, and was threatened to be forced into an arranged marriage, however this was dismissed as ‘the Delegate had regard to a considerable weight of country information which indicated a shift in conservative values in India.’[103]
Unlike applicants applying under other Convention grounds, SOGI applicants face enormous evidential burdens in proving that their state is unwilling to protect them, as data does not exist that supports the idea authorities reject LGBTI citizens claims as they often are not pursued in the first instance, and stereotypical assumptions about gay urban life are used to dismiss applicant’s testimony of persecution within those cities.
For SOGI applicants, the existing international refugee law regime is clearly deficient in circumscribing the limits of acceptable behaviour by decision-makers in an Australian context, and internationally courts have inconsistently interpreted its terms. At every stage of the RSD process, these applicants face unique challenges that arise out of the private nature of their identities, and their dignity is unacceptably infringed in the process of their claim adjudication even where their claims are successful. While a suite of reforms is necessary to protect these applicants, clearly the UNHCR is under an obligation to exercise its supervisory duty under the Convention[104] to add to existing soft law instruments to prevent decision-makers from taking into account offensive and invasive considerations as a first step. If no changes are made, LGBTI applicants fleeing homophobic and transphobic violence will continue to face unfair treatment in their RSD compared to other applicants, and will be denied of the right to seek a life free from persecution.
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Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 1A(2) (entered into force 22 April 1954) (‘Convention’).
Protocol Relating to the Status of Refugees, opened for signature 19 December 1966, entered into force 4 October 1967) 606 UNTS 267
UNHCR, Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (2008)
UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (2011) HCR/1P/4/ENG/REV. 3 (‘Handbook’)
[1] Nancy Nicol et al, Envisioning Global LGBT Human Rights: Neocolonialism, Neoliberalism, Resistance and Hope (University of London, 2018) 19, 26.
[2] Sarah Marsh, Aamna Mohdin and Mianh McIntyre, ‘Homophobic and Transphobic Hate Crimes Surge in England and Wales’ The Guardian (online, 15 June 2019) <https://www. theguardian.com/world/2019/jun/14/homophobic-and-transphobic-hate-crimes-surge-in-england-and-wales?>.
[3] Grace Hauck, ‘Anti-LGBT Hate Crimes Are Rising, the FBI Says. But it Gets Worse’ USA Today (online, 28 June 2019) <https://www.usatoday.com/story/news/2019/06/28/anti-gay-hate-crimes-rise-fbi-says-and-they-likely-undercount/1582614001/>.
[4] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1A(2) (‘Convention’) as amended by the Protocol Relating to the Status of Refugees, opened for signature 19 December 1966, entered into force 4 October 1967) 606 UNTS 267.
[5] Nicola LaViolette, ‘UNHCR Guidance Note on Refugee Claims Relating to a Sexual Orientation and Gender Identity: A Critical Commentary’ (2010) 22(2) International Journal of Refugee Law 173-208.
[6] In this essay, ‘LGBTI’ is taken to include individuals who identify as having, or engage in practices commonly associated with lesbian, gay, bisexual, transgender and/or intersex identity. The meaning of sexual orientation and gender identity is discussed in Part II below.
[7] Convention (n 4) art 1A(2). Further requirements are laid out in the Convention that are beyond the scope of this essay.
[8] LaViolette (n 5) 176; UNHCR, Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (2008) (‘Guidance Note’).
[9] Laurie Berg and Jenni Millbank (2009), ‘Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants’ (2009) 22(2) Journal of Refugee Studies 195; Catherine Dauvergne and Jenni Millbank, ‘Burdened by Proof: How the Australian Refugee Review Tribunal has Failed Lesbian and Gay Asylum Seekers’ (2003) 31 Federal Law Review 299, 317–20.
[10] See, for example, 1610382 (Refugee) [2017] AATA 1116: ‘The minister found that transgender people in Malaysia constituted a particular social group;’ 1703990 (Refugee) [2017] AATA 1014 (13 June 2017)
[11] See Migration Act 1958 (Cth) ss 5J(1), 5L (definition of ‘member of a social group’).
[13] Ibid ss 36(2)(aa), 5H(1), 5J(1)(a).
[14] Jenni Millbank, ‘“The Ring of Truth”: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations’ (2009) 21(1) International Journal of Refugee Law 31.
[15] Stefan Vogler, ‘Determining Transgender: Adjudicating Gender Identity in U.S. Asylum Law’ (2019) 33(3) Gender & Society 440, citing Lionel Cantú, The Sexuality of Migration (New York University, 2009) and Eithne Luibheid, Entry Denied: Controlling Sexuality at the Border (University of Minneapolis Press, 2002).
[16] A, B and C v Staatssecretaris van Veiligheid en Justitie (C-148/13 to C-150/13A) [2014] ECLI:EU:C:2014:2406 (‘A, B and C Case’).
[17] See generally UNHCR Guidance Note (n 6), LaViolette (n 4) 996.
[18] Sabine Jansen and Thomas Spikerboer, Fleeing Homophobia: Asylum Claims Related to Sexual Orientation and Gender Identity in Europe (2013, VU University Amsterdam) 17; International Commission of Jurists, Yogyakarta Principles - Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, 2007.
[19] Louise Hooper, Refugee Status Claims Based on Sexual Orientation and Gender Identity (International Commission of Jurists, 2016) 20.
[20] Jenni Millbank, ‘Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia’ (2002) 26 Melbourne University Law Review 145.
[21] Keith Southam, ‘Who Am I and Who Do You Want Me To Be? Effectively Defining a Lesbian, Gay, Bisexual and Transgender Social Group in Asylum Applications’ (2011) 86(3) Chicago-Kent Law Review 1380.
[22] James Wilets, ‘Conceptualising Private Violence Against Sexual Minorities as Gendered Violence: An International and Comparative Law Perspective’ (1997) 60 Albany Law Review 992.
[23] Berg and Millbank (n 9) 207.
[24] SZTIN v Minister for Immigration & Border Protection [2015] FCCA 1972, [28], [35] (‘SZTIN’).
[25] See, for example, 5/50659 [2005] RRTA 207 (17 May 2005).
[26] Hooper (n 19) 35.
[27] SZUQO v Minister for Immigration and Border Protection [2015] FCCA 592 (‘SZUQO’).
[28] Vogler (n 15) 439.
[29] Ibid 440.
[30] Jansen and Spikerboer (n 18) 17.
[31] David Valentine, Imagining Transgender: An Ethnography of a Category (Duke University Press, 2007) 352.
[32] Vogler (n 15) 440.
[33] Ibid 444.
[34] Ibid 456.
[35] 1506440 (Refugee) [2018] AATA 4216 (4 July 2018)
[36] Jansen and Spikerboer (n 18) 47. See also Millbank (n 12) 1-33.
[37] UNHCR, Guidance Note (n 8) [35].
[38] Berg and Millbank (n 9) 196.
[39] Gregor Noll, ‘Asylum Claims and the Translation of Culture into Politics’ (2006) 41 Texas International Law Journal 499.
[40] SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25, cited in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [44], applied in SZSVC v Minister for Immigration & Border Protection [2014] FCCA 917, [60].
[41] BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [60].
[42] Arzu Guler, ‘Refugee Status Determination Process for LGBTI Asylum Seekers: (In) Consistencies of States’ Implementations with UNHCR’s Authoritative Guidance’ in Arzu Guler et al (eds), LGBTI Asylum Seekers and Refugees from a Local and Political Perspective 126.
[43] Berg and Millbank (n 9) 198–9.
[44] Ibid 198.
[45] See, for example, SZUTY v Minister for Immigration and Border Protection [2015] FCCA 1379, [9(f)].
[46] Hooper (n 19) 40.
[47] SZQYU v Minister for Immigration and Citizenship [2012] FMCA 1114, [64].
[48] SZRQR v Minister for Immigration & Citizenship [2013] FMCA 21, [57].
[49] SZUCC v Minister for Immigration and Border Protection [2015] FCCA 2541, [15].
[50] Jansen and Spikerboer (n 18) 53.
[51] 1714923 (Refugee) [2017] AATA 2812 (9 November 2017) [11].
[52] 1610283 (Refugee) [2017] AATA 1116 (27 June 2017) [3].
[53] Jhana Bach, ‘Assessing Transgender Asylum Claims’ (2013) 42 Forced Migration Review 35.
[54] SZRQR v Minister for Immigration [2013] FMCA 21, [43].
[55] Ibid [36].
[56] Guler (n 42) 126.
[57] Berg and Millbank (n 7) 207.
[58] SZUDS v Minister for Immigration and Border Protection [2014] FCCA 2806, [10(c)].
[59] Berg and Millbank (n 7) 201.
[60] Bach (n 53) 34–5.
[61] 1506440 (Refugee) [2018] AATA 3216, [57].
[62] Jansen and Spikerboer (n 18) 62.
[63] Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC [61], [65], cited with approval in SZUTY v Minister for Immigration and Border Protection [2015] FCCA 1379.
[64] See, eg, BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94.
[65] Jansen and Spikerboer (n 18) 58.
[66] SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 318 ALR 450, 475–6.
[67] SZTIN v Minister for Immigration and Border Protection [2015] FCCA 1972, [24]–[27].
[68] SZUCC v Minister for Immigration and Border Protection [2015] FCCA 2541, [14]; SZUTY v Minister for Immigration and Border Protection [2015] FCCA 1379, [9(d)].
[69] Hooper (n 19) 18.
[70] Vogler (n 15) 455.
[71] 1610283 (Refugee) [2017] AATA 1116, [2], [13] (emphasis added).
[72] Hooper (n 19) 67.
[73] LaViolette (n 5) 186.
[74] UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P/4/ENG/REV. 3 (2011) (‘Handbook’)
[75] Ibid [54].
[76] 1703990 (Refugee) [2017] AATA 1014, [25]–[28].
[77] Hooper (n 19) 169. See also 1703990 (Refugee) [2017] AATA 1014.
[78] Eringo v Canada (Minister of Citizenship and Immigration) 157 ACWS 813.
[79] SZSVC v Minister for Immigration and Border Protection [2014] FCCA 917.
[80] LaViolette (n 5) 188.
[81] SZUDS v Minister for Immigration and Border Protection [2014] FCCA 2806, [10(b)].
[82] Hooper (n 19) 76–81.
[83] See Tchernilevski v Canada (Minister of Citizenship and Immigration) (1995) 56 ACWS 377.
[84] LH and IP Sri Lanka CG v The Secretary of State for the Home Department [2015] UKUT 00073.
85 LaViolette (n 5) 184.
[86] NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10, [11].
[87] LaViolette (n 5) 204–5.
[88] Ibid.
[89] MKKR and Minister for Immigration and Border Protection (Migration) [2016] AATA 458 (30 June 2016).
[90] Jansen and Spikerboer (n 18) 72.
[91] BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [56].
[92] Convention (n 4) art 1A(2).
[93] LaViolette (n 5) 198.
[94] UNHCR, Guidance Note (n 6) [36].
[95] LaViolette (n 5) 197.
[96] Hooper (n 19) 219, citing Melo v Canada (Citizenship and Immigration) (2008) 165 ACWS 335.
[97] Jansen and Spikerboer (n 18) 28.
[98] LaViolette (n 5) 199.
[99] Hooper (n 19) 226.
[100] Ibid 224; applied in 1610283 (Refugee) [2017] AATA 1116.
[101] 1213081 [2014] RRTA 75.
[102] LaViolette (n 5) 201.
[103] SZSVC v Minister for Immigration and Border Protection [2014] FCCA 917, [27].
[104] Guler (n 42) 119.
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