By Senthorun Raj, NSW Branch President of Amnesty International Australia
What does Madonna, Oscar Wilde, Greco-Roman wrestling, clubbing at Stonewall and sexual promiscuity have in common?
Not much really, other than that refugee decision-makers use these cultural tropes to determine whether a refugee is “genuinely” gay and subject to a well-founded fear of persecution.
Since 1992, Australia has recognised that sexual minorities of a particular country can be recognised as a “particular social group” for the purposes of seeking asylum under the Refugee Convention 1951 and the 1967 Protocol.
While most of us would find it difficult to answer intrusive questions about our sexual activity, in refugee cases, the demand to map a comprehensive sexual history can be rather absurd.
In one case from 2010, a gay asylum seeker from Lebanon lamented:
“Although I was happy to finally be in a country where I could be open about my homosexuality, it does not mean that overnight I would turn into a promiscuous person willing to engage in homosexual activities with any man that I met.”
Apparently, being gay is necessarily synonymous with wanting to be sexually active. That also translates into proving that you like frequenting venues on Oxford Street or maybe even reading some Oscar Wilde before bed.
Lesbian refugees often face a different challenge: they are denied credibility because they do not conform to norms of public promiscuity and group association. In a 2008 case, a female asylum seeker from Mongolia was disbelieved because her experiences of intimacy were not seen as conducive to that of a “real” relationship. The Refugee Review Tribunal (RRT) said:
"Most of us would laugh at the ongoing use of stereotypes. Yet, for refugees who are persecuted for their sexual orientation or gender identity, this cannot be a matter for our entertainment."
“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 characterised such intimacy as platonic rather than sexual or romantic.
However, if you are too scripted, then you are considered to be as rehearsed as a “Kabuki actor.” In fact, s91R(3) of our Migration Act 1958 enables decision-makers to discount any activity undertaken in Australia that is deemed to be self-serving for an asylum claim.
In 2011, a lesbian asylum seeker from Uganda had her claim rejected, because her relationship with another woman was considered suspect. According to the Department of Immigration and Citizenship delegate, she “had merely adopted the persona of a homosexual” for a protection visa. The applicant, however, responded:
“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.”
Is it that hard to believe that in a country attempting to further criminalise homosexuality and where support groups for sexual minorities are consistently raided, that someone would be silent about not being heterosexual?
"What a catch-22: either you are too gay, or you are not gay enough."
What a catch-22: either you are too gay, or you are not gay enough.
So how do we approach casework and decision-making in a way that does justice to the voices of refugees, rather than seeking to appropriate their experiences to fit within our “neat” stereotypes?
While there is no perfect policy panacea to the problems of mendacity, I have received a Churchill Fellowship this year to research how specialist LGBTI refugee casework models have developed overseas can assist advocates and decision-makers here in Australia.
Most of us would laugh at the ongoing use of stereotypes. Yet, for refugees who are persecuted for their sexual orientation or gender identity, this cannot be a matter for our entertainment.
Queerness is not reducible to pop culture references or consumption. Our experiences of being lesbian, gay, bisexual, transgender or intersex (LGBTI) is specific to our cultural and geographical context, and that means it is not always contingent on our love of Lady Gaga.
Incorrect status determinations are dangerous because they can facilitate the return of refugees to places where their life or liberty is threatened.
With an increasing number of asylum claims based on sexual orientation or gender identity being processed in Australia, decision-makers have a challenging obligation to ensure that such claims are treated with the appropriate cultural sensitivity.
As a newly appointed Churchill Fellow, I hope that furthering my research in this area will help facilitate some justice to the disparate voices of LGBTI refugees seeking protection here in Australia.
Senthorun Raj is NSW Branch President of Amnesty International Australia
This article was originally published on The Vine on 11 July 2012.