Farida Iqbal, Sydney
On September 23, activists from Community Action Against Homophobia (CAAH) and the NSW Queer Students Network visited lesbian, gay, bi-sexual, transgender and intersex refugees in Villawood detention centre. The LGBTI movement has been campaigning for years to free all refugees, and is particularly concerned about queer refugees.
Many LGBTI refugees have been bashed, tortured, sexually assaulted or imprisoned as punishment for their sexuality or gender identity. Seventy-seven countries carry legal penalties for homosexuality; some include the death penalty. Right-wing regimes, such as in Iraq and Afghanistan, are often particularly harsh in their treatment of LGBTI people.
LGBTI refugees often flee not only from government persecution, but also from their families and religious right-wing vigilantes. State repression encourages "grassroots" homophobia to flourish and LGBTI people cannot seek the assistance of the police when homosexuality, or transgenderism, are illegal.
In "Imagining otherness: refugee claims on the basis of sexuality in Canada and Australia", from the April 2002 Melbourne University Law Review, Jenni Millbank examined 204 cases of refugees seeking asylum in Australia between 1994 and 2000 on the basis of homophobic persecution. Of these, 42 were lesbians, one was transsexual and the rest were gay men. These categories of "gay", "lesbian" and "transsexual" are not hard and fast given the different conceptions of sexuality in various cultures, and that Millbank does not include data about bisexuals.
The Refugee Review Tribunal (RRT) has a record of treating queer refugees in a harsh and unrealistic manner, Millbank argued. Of the 204 cases examined, 26% of gay men were accepted and just 7% of lesbians. The RRT has rejected some LGBTI refugee claims on the basis that refugees fleeing homophobic persecution could be safe in their home country if they were discreet about their sexuality.
In 2004, the High Court overturned such an RRT ruling about a gay couple from Bangladesh, but that landmark decision has not resulted in a rise in successful sexuality-based refugee claims. The RRT continues to be as harsh as always, although for different reasons.
To seek asylum on the basis of homophobic persecution, refugees must prove in court that they are queer. This is an unreasonable expectation; it is not always something that can be easily proven, especially for lesbians. Being queer means different things in different cultures and RRT case managers often demonstrate a very Eurocentric understanding of what it means to be gay, lesbian, transgendered or bisexual.
One Iranian man's application was rejected on the grounds that "the Tribunal was surprised to observe such a comprehensive inability on the Applicant's part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him". Examples of such "dignity arousing phenomena", that the tribunal suggested the asylum seeker could have mentioned included Oscar Wilde, Alexander the Great, Andre Gide, Greco-Roman wrestling, Bette Midler or Madonna (WAAG v MIMIA, 2004. See <http://www.austlii.edu.au/au/other/HCATrans/2004/475.html>).
The expectation that an Iranian gay man should cite such Western cultural references was absurd. Furthermore, closeted, traumatised people are often not "out and proud" in an intimidating legal setting.
Refugees sometimes hide their history of homophobic persecution and seek asylum on some other basis because they sense the homophobia in the system. The outcomes of LGBTI refugee cases tend to differ on the basis of their country of origin, despite the RRT's assertion that it judges claims on a case-by-case basis. Middle Eastern LGBTI refugees tend to have a higher success rate than Chinese LGBTI refugees.
The RRT makes decisions based on the general level of homophobic persecution in the applicant's country of origin, yet it has a history of relying on unreliable, over-generalised, anecdotal assertions about the circumstances of gays in particular countries.
If the Spartacus gay travel guide says a country has plenty of gay cruising areas, beaches and nightclubs, the RRT reasons that this means asylum claims from LGBTI people from those countries must be false. The tribunal has also used evidence of the freedom and status of gay men in a country to assess the claims of lesbian refugees, despite the often vast differences between the circumstances of gay men and lesbians.
Lesbian refugees tend to make less onshore claims than gay men. Globally, women are poorer than men and therefore find it more difficult to leave a country to make an onshore claim. The poor success rate of lesbian refugees is also a reflection of the Australian legal system's attitude toward women.
Homophobic violence against lesbian refugees has much in common with violence against women in general — it tends to occur in private rather than public and sexual assault is commonly used.
Millbank identified a RRT trend to dismiss the persecution of lesbians as "domestic" or "personal". In one 1999 case, a lesbian from Bolivia had been sexually assaulted by men in her neighbourhood after a male relative had "outed" her "because he hoped that if they all insulted and attacked her, she would change". The RRT decided that this persecution was "a purely private matter and not ... for reasons of the Applicant's membership of a particular social group of homosexuals". Rape and domestic violence are tacitly understood as "normal" by the Australian legal system.
Mandatory detention can be particularly isolating for queer refugees. Many find it impossible to meet other LGBTI people. There is no support service that caters specifically to the needs of LGBTI refugees, and religious groups' support services often do not meet the needs of LGBTI clients.
Homophobic practices are common in detention centres. In one instance, a gay male couple in a long-term relationship was detained in separate compounds because Australian Correctional Management did not recognise their relationship.
Refugees who are refused asylum by the RRT are deported back to their country of origin, including to countries where they potentially face the death penalty for being homosexual.
There are several LGBTI refugees who are free today because the community stood up for them. But the LGBTI protest movement campaigns for rights for all refugees, not only queer refugees, because it sees the links between the Howard government's oppression of both LGBTI people in general and all asylum seekers.
[To help support LGBTI refugees, phone Rachel Evans from Community Action Against Homophobia on 0403 798 420 or Queer Students Network on 0401 664 858. For more information, visit <http://www.caah.org>.]