The plight of gay and lesbian refugees is increasingly being understood by the Refugee Review Tribunal, but sensitive questioning still remains a foreign concept.
A recent Tribunal decision to accept an Indian man’s application for refugee status on the grounds of homosexuality has been welcomed as an “enlightened” case by Gay and Lesbian Immigration Task Force solicitor Lachlan Riches.
The case involved a man from New Delhi who applied for asylum after being outed by an employee from his factory. He was subsequently physically attacked by both town locals and his father and brother whose abuse was so violent that he required medical attention.
It is not the first gay refugee case but, according to Riches, the findings indicate a more understanding approach being taken by the Tribunal.
Unlike previous cases brought before the Tribunal, the applicant was not told that it would be safe for him to return to his country of origin and continue life as a gay man with provisos.
Ten years ago, in Shah versus the Department, the Immigration Department ruled against another Indian man’s application for refuge, on the grounds that if he were to return, he would only face prejudice and not persecution — the test applied to refugees.
Last year, the Refugee Tribunal fought the application and appeals of two Bangladeshi men who were initially told they would be fine to return to Bangladesh, as long as they were discreet about their homosexuality. The men appealed the ruling and won in the Supreme Court, which agreed it was an inappropriate response from the Tribunal.
Riches said in this most recent ruling, “it was pleasing to see that it is becoming, by and large, accepted that being homosexual in some countries can result in a claim for refugee status being accepted”.
He was pleased to see notes, in the country information used by the Tribunal to assess claims, recognising the limitations for Indian gays and lesbians, despite last year’s Indian High Court ruling removing homosexuality from the penal code.
The Tribunal recognised that, “in effect, decriminalising homosexual acts is unlikely to have any immediate impact either now or in the reasonably forseeable future, as to how Indians generally, and Muslims, regard homosexuality. The Tribunal is satisfied that prejudice against homosexuals is entrenched”.
Riches called this “very promising” but said, “It is less pleasing to see that those who have to make these claims seem to have to go into a lot more personal history in demonstrating their basis”.
When determining the veracity of applicants’ stories, bureaucrats and Tribunal members use their discretion about far they go with questioning. Riches accepted that this is necessary, but questioned the extent of it in gay and lesbian applications.
In previous cases, in attempting to prove they were gay, applicants have been asked for detailed accounts of their sex lives, including whether they used lube. In one case, according to Riches, a Chinese-Indonesian man was asked whether he had let a man ejaculate on his face.
In the Tribunal’s recent finding, Riches said the presiding member had again “gone too far”, asking for detailed accounts of the man’s sexual practices in India, and since his arrival in Australia.
“They do tend to get very personal, in a way which they don’t tend to do in other types of claims, like religious persecution, or ethnic persecution,” Riches said. “When sexuality is the basis for the claim, it goes into difficult territory.
“I would like to see them be a bit more aware of how sensitive some of these issues are. The experience people are put through, if they’re gay, shouldn’t be any more onerous or rigorous than if they make another claim for refugee status.”