OVER 76 countries have laws that criminalise homosexuality and this has triggered an outflow of LGBTI (lesbian, gay, bisexual, trans and/or intersex) people seeking asylum abroad.
For LGBTI asylum seekers coming to Australia, the treacherous journey is filled with problems other asylum seekers have the privilege of avoiding.
Australia fares better than most countries when it comes to respecting LGBTI rights. Although the government is yet to legalise marriage equality, the LGBTI are afforded most of the rights enjoyed by residents of Australia.
But this seems to be where the compassion ends, as Australia has failed the LGBTI people arriving at its borders.
Current government policy forces asylum seekers who arrive in Australia via boat to have their refugee claim processed on the island state of Nauru or Manus Island in Papua New Guinea (PNG). As a result, many LGBTI asylum seekers have languished in prison-like conditions ever since, with no prospect of settling in Australia.
There have been some modest improvements in Australia’s treatment of LGBTI asylum seekers over the past two decades, but not nearly enough. Because Australia recognised those with a different “sexual preference” as a social group in the 1992 Morato Case, LGBTI asylum seekers could now meet the definition of refugee as outlined in the 1951 Refugee Convention (which Australia ratified in 1954).
Also in 2003, The High Court of Australia recognised “[the] need to act discreetly to avoid serious harm constituted persecution”. This was important because in the past, LGBTI asylum seekers could be denied protection and returned to their home country, where it was expected they would merely conceal their identity.
But in general, the government is failing LGBTI asylum seekers. Immigration minister Peter Dutton infamously declared last October that asylum seekers who arrived via boat were ‘never to be settled in Australia’, leaving many LGBTI asylum seekers and refugees stuck in Nauru and PNG.
But in PNG, homosexuality is a punishable crime. Under Section 210 of the Papua New Guinea Criminal Code (1974), homosexuality is described as “against the order of nature” and consensual sex is criminalised between members of the same-sex, carrying a sentence of 14 years. Across PNG, society plays an equally large role in discriminating against LGBTI people with threats and intimidation commonplace. As such, LGBTI people, particularly refugees who are even more vulnerable, avoid seeking help from the authorities out of a fear of being charged.
Processing LGBTI asylum seeker claims in PNG undermines the legitimacy of Australia’s asylum seeker policy. According to Amnesty International, LGBTI asylum seekers were informed it was a requirement for staff to report any same-sex activity to the police, and the staff constantly threatened asylum seekers with disclosing information. As a result, many LGBTI asylum seekers, fearful of revealing their sexuality, changed the basis of their refugee claim, even if being LGBTI was the original reason for their plight.
Even the Salvation Army, a Christian charitable organisation, was in 2014 accused of displaying images of same-sex couples kissing with a red cross on the front, which it claimed was for the purpose of informing asylum seekers that PNG does not tolerate homosexuality. Regardless the reason, it is not difficult to see why in such an environment, many LGBTI asylum seekers choose to keep their sexual identities hidden.
If found to be a legitimate refugee, being resettled in PNG while identifying as LGBTI is a violation of one’s right to non-refoulement, a key principle of the 1951 Convention that requires states not to return asylum seekers or refugees to “frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.
Australia, however, appears to have no qualms abandoning such principle.
The case for LGBTI asylum seekers and refugees in Nauru paints a similar a picture. Although the government decriminalised homosexuality in May 2016, there are still refugees on the island who face discrimination from the community. Two Iranian men were reportedly forced to become virtual “prisoners” after being ousted to the public, only leaving their house once a week to buy groceries with the assistance of a case manager.
Gillian Triggs, president of the Australian Human Rights Commission, has called on the LGBTI community in Australia to show support for LGBTI asylum seekers and refugees. Speaking at a Queer Thinking forum in February 2016, she criticised the lack of sensitivity given to asylum seekers trying to make a claim for refugee status based on identifying as LGBTI.
“They’re not used to speaking to an officer they’ve never met before, presenting evidence they see as deeply personal and where they’re not from a culture where you would speak of these terms in ways that maybe Australians have become used to,” Triggs continued.
Australia’s asylum policies have been relentlessly criticised, but LGBTI refugees and asylum seekers face a series of unique difficulties. From the asylum seeker too scared to base a claim on identifying as LGBTI to the refugee settled in PNG where the threat of 14 years in prison looms, the government of Australia needs to be doing more to protect this marginalised community.
** This is the personal opinion of the writer and does not reflect the views of Asian Correspondent