The recent case of Biplob Hossain, a 25-year-old gay refugee from Bangladesh, highlights the inadequacies present in Australia’s existing refugee regime. He is currently waiting to hear whether the Minister for Immigration and Citizenship will intervene in his matter after having his appeal to the High Court rejected.

The 1951 Refugee Convention, to which Australia is a signatory, requires asylum to be granted to a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the count of his [sic] nationality and is unable or, owing to such fear, is unwilling to avail himself [sic] of the protection of that country -¦

It has been recognised that gay and lesbian asylum seekers constitute a particular social group for the purposes of the Convention. However, due to an Eurocentric understanding about how sexuality is understood and performed in the non-Western world, a large number of claims for asylum by gay and lesbian refugees are rejected every year by the Australian authorities.

In the case of s395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, the High Court considered the plight of two gay refugees from Bangladesh. In this case, the Refugee Review Tribunal (RRT) had initially found that the applicants did not have a well-founded fear of persecution because it was possible for them to live in Bangladesh discreetly and, therefore, avoid persecution. The judges in the majority in the High Court strongly disagreed with this finding, stating that there should not be the expectation that people could be discreet about their sexuality, any more than it should be expected that an applicant with a political or religious belief should hide their beliefs to avoid persecution. The judges held that sexuality should be understood to extend to many aspects of human relationships. However, despite this ruling, decision-makers continue to treat gay and lesbian applicants with narrow-minded stereotyping that fails to understand and empathise with their plight.

The decision of the Australian Government to cease Howard’s Pacific Solution is an important step and signals that Australia is heading in the right direction. However, we need a comprehensive review of Australia’s refugee regime, one which re-evaluates our entire system and considers such issues as the sensitivity and qualifications of personnel in the Department and on the Refugee Review Tribunal to deal with gay and lesbian applicants.

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