The recent announcement to process all asylum seekers arriving on boats in Papua New Guinea (PNG) has generated significant human rights concerns. Much has already been said about the conditions of the detention centre on Manus Island, the endemic violence in PNG, and the absence of effective legal infrastructure to support refugees.
However, little has yet been said about one important question: how will lesbian, gay, bisexual, transgender, and intersex (LGBTI) asylum seekers fare in a place where their identity itself is a cause for criminal sanction?
PNG criminalises homosexuality with imprisonment for up to 14 years. The criminal code – largely mirroring many other colonial laws – punishes acts that are deemed “unnatural offences.” With pervasive cultural attitudes that consider gay and lesbian people to be both pathological and perverse, it is unsurprising that such laws specifically prohibit expressions of same-sex relationships.
Under these new proposals both LGBTI asylum seekers and refugees who arrive by boat would have to contend with a legal system that deems their behaviour immoral and their identities criminal. There is no indication whether PNG would, under their laws, consider such claims to be valid at all.
Even here in Australia, where there are no criminal punishments and sexual orientation or gender identity claims are valid, “coming out” to share sexual feelings or experiences of persecution can be fraught with anxiety.
Can you imagine then having to disclose that you are being persecuted for being gay, when the place you are seeking asylum in believes you should be locked up for it?
As refugee lawyers Jenni Millbank and Eddie Bruce-Jones point out, criminalising same-sex relationships itself can amount to persecution. Even if the laws are not enforced, they make sexual and gender minorities subject to extortion, abuse and harassment.
When turning to the police risks further violence, LGBTI people are forced to occupy positions of secrecy. Locked back into the proverbial closet for fear of being harmed.
On one hand, you risk stigma, punishment and/or rejection by revealing that your sexual orientation or gender identity is the basis of your claim.
Alternatively, you can remain silent, and be returned to the country where you faced a well-founded fear of persecution.
Either way, it is an impossible Catch-22.
Let’s not forget about the challenges that arise after you are recognised as a refugee too. How would you fare as a person resettled in a country where you could never express who you were for fear of being prosecuted?
ORAM International, the leading advocacy organisation for LGBTI refugees, recently recommended that resettlement countries like Australia work to ensure that refugees are quickly and carefully resettled within safe communities. Sadly, this will no longer be an option for those who arrive by boat seeking protection.
Whether our new asylum policy is designed to save lives or undermine people smuggling initiatives, the Refugee Convention is crystal clear on one thing: no refugee should be sent to a place where their life or liberty would be threatened.