When did clubbing and being sexually active become the reference points for measuring someone’s sexuality? Recent decisions by the Department of Immigration and Citizenship (DIAC) and the Refugee Review Tribunal (RRT) suggest that Western cultural stereotypes prevail in the determination of sexuality-based asylum claims.
The Refugee Convention 1951 outlines that asylum seekers must demonstrate a well-founded fear of persecution on the basis of a protected ground to be considered a refugee. The protected categories include ethnicity, nationality, religion, social group or political opinion. In Australian law, sexuality, or specifically "homosexuality", has been considered a protected identity under the category of "social group" since Morato’s case in the Federal Court in 1992.
Historically, claims made by sexual minorities have been met with resistance from decision-makers who have argued that persecution can be avoided if the asylum seeker chooses to remain "discreet". Stereotypes underlying the need for discretion are predicated on the assumption that gay men are excessively promiscuous, often seeking sex in public, and dangerous to the mores of society. These social imaginaries characterise any form of public affection as indicative of "overt sexual activity" that should be "rightly" condemned.
A 1999 case concerned a Chinese asylum seeker who was beaten and detained for three months for kissing another man in public. The Federal Court sought to dismiss the claim on the basis that Gui lacked appropriate discretion with respect to Chinese cultural norms and ought to have engaged in his display of homosexuality privately. In 2003 these discretion tests were rejected by the majority of the High Court — but the moralising rhetoric that underpins the so-called need for discretion continues to haunt current decisions.
Conversely, female applicants often face the opposite problem. Their claims are deemed to lack credibility because they do not conform to a highly visible stereotype of public promiscuity and consumption. In a 2008 case, a female applicant from Mongolia was questioned because her experiences of intimacy were not highly public or visible. The judge said:
"I accept that the applicant has a girlfriend and that she has had a close relationship with this friend since [year]I have doubts as to whether their relationship is a lesbian relationship as the evidence as to how they first met and their lack of involvement in the lesbian community is of concern. Further the applicant gave little details of the nature of the relationship and I felt she was being evasive as to the real basis of their friendship."
While the applicant in this case was found to be a refugee, the association between her claim to a lesbian identity and the lack of involvement in the public "lesbian community" in her country of origin limited her credibility. As the applicant did not travel with her partner and chose not to come out publicly, the RRT defined their intimacy as platonic rather than sexual. Moreover, the fact that her partner spoke a different language was also seen to undermine the applicant’s credibility, as speech is privileged by the RRT as foundational to romantic intimacy. Her evasion of questions in the application process was seen by the RRT as an indication of non-genuine lesbian sexuality. According to the Tribunal, the "real basis" of the relationship is limited strictly to a friendship that is misconstrued in the applicant’s home as homoerotic.
Many of the current administrative decisions in Australia rely on what academics Laurie Berg and Jenni Millbank term a "sexualisation of the narrative". That is, the sexual experience of the refugee must fit into composite story involving visible (read: "out") participation in a "scene" or community.
In a case from 2010, a male Indian applicant outlined the difficulties he had with such participation:
"In India, I was too afraid of seeking out the gay subculture. I had already been threatened and harassed and did not want to place my life in any more danger. I was not even aware that there was a gay subculture as it is not widely advertised. There were no gay publications such as magazines and books available in newsagents where I lived, that I could just buy and find out about gay events. Just because I did not try to engage in that culture does not mean that I am not homosexual."
Knowledge of sexual cultures is crucial to assessing the credibility of claims like this. When decision makers from DIAC locate sexual identity in a particular national context, they implicitly nod to an idea about a "gay subculture". It’s often unclear what this actually means — and then the applicant’s claim is refused because of his lack of interaction with it. The vague notion of a subculture fails to consider the many different ways sexualities are negotiated in public cultures — and it also assumes applicants have the means and social mobility to access such spaces.
Paradoxically, the same stereotypes also get used to discredit applicants if a decision-maker believes them to be performing them disingenuously. In May 2011, a lesbian asylum seeker from Uganda had her claim rejected, because her relationship with another woman was considered suspect. According to the DIAC delegate, she "had merely adopted the persona of a homosexual" for a protection visa. The applicant responds by noting, "I have kept my homosexuality private in Uganda because I fear for my life. It is for this reason that I did not directly associate with or join lesbian groups".
Asylum seekers are in a double bind. If they remain closeted about their sexuality, or choose not to participate in the "scene", they lack the public visibility to be considered genuine. However, as the case with the Ugandan refugee, if you present what appears to be a convenient "homosexual persona", you may be discredited.
While the RRT in this particular case eventually found the claim to be valid, the proceedings nonetheless suggest that there there is a universal public "homosexual persona" that a person is capable of adopting. Specifically, the assumption that lesbian sexuality relies on public socialisation remains uncontested. Following this logic, sexuality can only be recognised when it manifests in public terms, unless coercion or fear of violence limits its expression to the domestic sphere.
When asked what guidelines were used to determine the veracity of claims based on sexual orientation, a spokeswoman for the Department of Immigration told New Matilda that DIAC does have "gender guidelines" that cover issues relating to sexuality-based claims, but that these are not publicly available. She said decision-makers are also referred to the international UNHCR guidelines (developed in 2008) on processing asylum claims from people of diverse sexual orientations.
However, when taken together the decisions listed above reveal a lack of consistency. Assessment of claims for asylum by a sexual minorities relied on reasoning that is often paradoxical. Moreover, judging claims against a mythic or stereotypical "persona" privileges consumerism or promiscuity as the authentic markers of non-heterosexuality. Such moves obscure how asylum seekers negotiate their intimate lives and sexualities in specific cultural and historical contexts.
Ultimately, illogical or unreasonable decision-making on the part of administrators can be attributed to parochial understandings of sexuality and a lack of empathy. Judicial review is available for such decisions but courts are limited to considering jurisdictional questions or errors of law, rather than determining the merits of the decision. Reforms to administrative decision-making then, must focus on eroding stereotypes and embracing culturally specific merit assessment guidelines, to avoid dismissing the genuine risks faced by so many gay and lesbian refugees.
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