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It is not reasonable for homosexuals to 'be discreet' in fear for their lives

By Jenni Millbank - posted Thursday, 18 December 2003

Australia’s refugee policy has involved a lot of double-think over the years. Our leaders are presently calling for a death penalty against Saddam Hussein while they spent the past ten years imprisoning and turned away boatloads of people fleeing persecution at the hands of his regime.

We were one of the first countries in the world to accept that the “particular social group” category of the convention covered people fleeing persecution based on their sexual orientation but Australia was also among the first, and the most vigorous, proponents of the view that lesbians and gay men could, and indeed should, prevent such persecution by hiding their sexuality in their home country. The reasoning was that although the applicant’s country was a very dangerous place indeed for lesbians and gay men, the applicant would not be at risk of persecution because they could “be discreet”: meaning they could live their whole life without ever telling anyone they were gay. So, for example, in a 1998 case concerning a gay man from Sri Lanka the Refugee Review Tribunal held:

The evidence is that he can avoid a real chance of serious harm simply by refraining from making his sexuality widely known - by not saying that he is homosexual and not engaging in public displays of affection towards other men. He will be able to function as a normal member of society if he does this. This does not seem to me to involve any infringement of fundamental human rights. (emphasis added)


This decision was upheld on appeal to the Federal Court in 2000.

While not every decision-maker at the Refugee Review Tribunal employed this kind of reasoning over the past 10 years, many did, and when they did it was almost impossible for any lesbian or gay claimant to succeed. This meant that Australia returned lesbians and gay men to countries such as Bangladesh, Iran, Ghana and Jordan to live their lives (discreetly) in fear. In a number of cases the Tribunal, the and Federal Court of Australia on review, found that although threats such as the death penalty in Iran did “place limits” on applicants’ behaviour, it was reasonable to expect them to accept such “constraints”.

The “discretion” requirement was discriminatory and unlawful for a number of reasons. First, it reversed the responsibility of states who signed onto the Refugees Convention to ensure protection of refugees from persecution, and instead placed the onus on the applicant to ensure safety through suppression and secrecy. This undermined the very premise of the Convention, which exists to protect people from gross abuses of their human rights, not to encourage conformity with the wishes of the oppressors. Second, it treated one class of refugee applicants as different from, and lesser than, other groups. Claimants on political and religious grounds are expected to express their views and be protected by refugee law, no matter how violently the home state disapproves, while lesbians and gay men were not permitted that freedom. Furthermore, in some cases decision-makers held that lesbian and gay claimants did not have the same fundamental rights as other people, such as freedom of expression and freedom of association, finding that the only “core right” was that of private consensual sex.

Many decisions implicitly or explicitly premised the discretion requirement upon an assumption that a gay applicant could express his sexuality through anonymous sex in public places, or that a lesbian applicant would remain celibate. The Tribunal held that this was a "normal life". But normal in what sense? Would the Court for example hold that a heterosexual person’s fundamental human rights were not infringed if, for "safety’s sake" they had to pretend to be gay in every area of their professional, personal and social life, in every public place, by not living with their partner of choice, never showing affection to their partner or identifying themselves as a couple, and only pursuing their heterosexual "lifestyle" by having swift and furtive sex with strangers or prostitutes in a public park? It appals me that it was so hard for decision-makers to imagine that a normal life for everyone involves having a partner, going out socially, talking to one’s friends. Or that hiding such a vital part of your life might not be a matter of good manners designed to avoid embarrassing old fashioned fuddys like the High Court minority judges but a response to fear, discrimination and oppression.

While countries such as Canada and New Zealand have emphatically rejected the discretion approach, it seems that in recent years Britain has embraced it. Australia now has the chance to turn the tide back again after the High Court handed down a strongly worded judgment in early December in which the four majority judges held that the discretion requirement was absolutely wrong. This won’t unleash a flood of claims or turn Australia into a “honey pot for homosexuals” as some commentators have claimed. It will simply ensure that claimants on the basis of sexual orientation will be treated fairly when and if they do make their claim, and equally with other categories of claimant.

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About the Author

Jenni Millbank is a senior lecturer in law at the University of Sydney. She is engaged in a global comparative research project on refugee determinations and sexual orientation in partnership with Catherine Dauvergne at the University of British Columbia. Recently she assisted Amnesty International Australia in their Amicus submissions in the case of S395/2002.

Related Links
Department of Immigration and Mulitcultural and Indigenous Affairs
High Court of Australia
International Convention realating to the status of Refugees
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