A paper prepared for the 2001 IBA Conference held on 1 November 2001
in Cancun, Mexico by David Bitel, Vice
Chairman of Committee 14, Section on Legal Practice.
Particular acknowledgement is made of the article "Sexuality
and Refugee Status in Australia" by Kristen Walker appearing in
International Journal of Refugee Law, Vol 12 No. 2.
1. Introduction
This year is the 50th anniversary of the 1951 Refugee Convention. The
Convention was largely developed as a consequence of the gross human
rights violations in the Second World War. In many Western countries in
recent years, refugees and asylum seekers have become political footballs
and there is a growing hostility towards people who make claims for
protection. As noted by the new UN High Commissioner for Refugees, Ruud
Lubbers: "Asylum-seekers have become a campaign issue, with
Governments and opposition parties vying to appear toughest on the
"bogus" asylum-seekers "flooding" into their
countries.".
Australia unfortunately is in the forefront of nations where refugee
issues figure prominently and daily in the press and political debate. For
a country like Australia, immigration policy has always been about the
control of those seeking to enter, and the need for governments to control
unlawful movement. This counters the controversial feature of the Refugee
Convention, namely the obligation to provide protection to asylum seekers
for many of whom entry by illegal means is the only means of escape. It
sits very uncomfortably with many politicians.
One area within the Refugee Convention which creates a great level of
debate concerns the definition reference to "membership of a
particular social group", because of the generic broadness of this
definition. The Refugee Convention in Article 1A(2) defines a refugee as
any person who: "owing to well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular
social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual
residence, is unable or, owing to such fear, is unwilling to return to
it".
For a refugee to fit within the Convention, he or she must establish
therefore:
- that they have a fear – the subjective element;
- the fear is well-founded – the objective element;
- of being persecuted – the test for persecution is a much stricter
test than, for example, discrimination;
- the persecution must be for one of five enumerated Convention reasons
– the nexus to the Convention;
- the applicant must be outside his or her country and unable or
unwilling to return;
- the applicant must not be excluded from eligibility.
2. Membership of a Particular Social Group
The Convention provides protection to people who are persecuted if they
establish inter alia, membership of a particular social group either by
itself, or cumulatively with one or other of the nexus grounds. This was a
last-minute amendment introduced to the Convention by the Swedish delegate
to the conference. While Arthur Helton, a prominent refugee academic, has
suggested that this group is designed as the all-encompassing residual
catch-all, the broad approach to this category has been rejected by
Professor James Hathaway (see Law of Refugee Status, Butterworths, 1991,
pages 158 to 161). He suggests that the definition should be based on
application of the ejusdem generis principle, which reflects a
concern for the plight of persons whose social origins put them at
comparable risk to those in the other enumerated categories and the more
general commitment to grounding refugee claims in civil or political
status. He notes further that "the standard is sufficiently open
to allow for evolution in much the same way as has occurred with the four
other grounds, but not so vague as to admit persons without a serious
basis for claim to international protection". He concludes by
noting that a particular social group must be definable by reference to a
shared characteristic of its members which is fundamental to their
identity and refers to three categories of people who could be included:
- Groups defined by an innate, unalterable characteristic;
- Groups defined by their past temporary or voluntary status since
their history or experience is not within their current power to change;
and
- Existing groups defined by volition so long as the purpose of the
association is so fundamental to their human dignity that they ought not
to be required to abandon it. He excludes therefore groups defined by a
characteristic which is changeable or from which disassociation is
possible, so long as neither option requires renunciation of basic human
rights.
This paper now seeks to look at the issue of social group with
reference to sexual orientation.
When the original drafters of the Convention considered the issue, the
concept of providing protection to persons with non-traditional sexual
orientations was not at the forefront of the minds of the drafters.
Perhaps this is strange, given the known persecution of homosexuals in
Nazi Germany. On the other hand, we must remember that it is only in the
last decades of the last century that non-heterosexual sexual conduct has
been decriminalized in many nations. Just as the Refugee Convention makes
no reference to the issue of sexual orientation, so the other post-war
significant human rights Treaties also fail to make reference to the issue
of sexual orientation. Even today, in a majority of countries, a
discussion of the issue of sexual orientation is suppressed, most notably
in the Islamic states.
In Australia, a liberal approach to issues of sexuality has in recent
years been dominant. Australian legislators, reflecting the broadminded
attitudes of the majority of Australians, have not only overseen
substantial areas of law reform removing previous discriminatory laws and
residual criminal sanctions against homosexuals, but in many jurisdictions
legal protection for people seeking to express divergent sexual conduct
and expressions has been legislated through, for example,
anti-discrimination laws. Such protections unfortunately do not exist in
many countries where hostility towards homosexuals etc ranges from the
most extreme and life-threatening (the situation in Afghanistan and Saudi
Arabia) to societies where persons engaged in same sex conduct risk
serious social ostracism. The annual Spartacus Gay Guide contains a review
of the legal situation relating to homosexuality in most countries and
similar information can be obtained from the Third Pink Book, and Amnesty
International in its reports, for example: "Breaking the Silence:
Human Rights Violations Based on Sexual Orientation".
In Australia, the Courts have provided some detailed guidance on the
interpretation of the term social group. The Australian High Court
considered the issue in Chan Yee Kin v Minister for Immigration and
Ethnic Affairs (1989) 169 CLR 379 and more fully in Applicant A and
Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.
The Court was concerned to ensure that the definition was not cyclic in
its interpretation and Australian jurisprudence requires that:
- there must be some characteristic other than the persecution or the
fear of persecution that unites the collection of individuals,
- that characteristic must set the group apart as a social group from
the rest of the community, and
- there must be recognition within the society that the collection of
individuals is a group that is set apart from the rest of the community.
In other words, there must be a cognizable particular social group
which has a common unifying element binding the members of the group
because of shared common social characteristics and/or shared interest or
experience in common. The group must not be defined solely by the
persecution feared. It is not sufficient that a person be a member of a
particular social group and also have a well-founded fear of persecution,
the persecution must be feared because of the person's membership
or perceived membership of the particular social group (see also MIMA v
Zamora (1998-9) 85 FCR 458 at 464 and Ram v MIEA (1995) 57 FCR
565 at 569).
In many of the leading cases, examples were cited as examples of a
social group, homosexual and bisexual men and women. Thus for example, in Applicant
A, Justice Gummow noted:
- "However, a glance at the enormous variety of the groups
relied upon helps to bear out the comment that the phrase
"particular social group" is a specially flexible one. It is
impossible to limit it by a precise definition. Thus, the following
categories have been upheld as particular social groups, the membership
of which gave rise to a well founded fear of persecution: "...
homosexual and bisexual men and women in countries where their sexual
conduct, even with adults acting private, is illegal" ... it is now
well established in virtually all discussion of the Convention
definition, that it is not necessary for the individual applicant to
have been a member of a concerted body or association affirming group
identity. In such cases, such as homosexuals in certain countries, such
a requirement could be extremely perilous to the members of the group
and self defeating".
Justice McHugh at page 40 (also a member of the majority) noted:
- "If the homosexual members of a particular society are
perceived in that society to have characteristics or attributes that
unite them as a group and distinguish them from society as a whole they
will qualify for refugee status. Nor is it necessary that the group
should possess the attributes that they are perceived to have."
Justice Michael Kirby made similar comments in that case and also in a
more recent High Court decision, Chen Shi Hai v MIMA (2000) HCA 19.
One of the earliest judicial recognitions of homosexuals as a social group
was made by Justice Lockhart in Morato v Minister for Immigration
(1992) 39 FCR 401, where he expressly accepted that the term covered such
persons.
Hathaway at pages 163-4 expressly recognizes that homosexual and
bisexual women and men constitute a group defined by a fundamental
immutable characteristic which is capable of defining a social group for
the purpose of the Convention definition according to his definitional
approach. It is significant that the UNHCR has also now published a paper
which similarly accepts that homosexuals can be considered as a social
group for the purpose of the Convention (see Guidelines on Homosexuality
and the Refugee Determination Process). This is particularly significant,
coming as it does from the United Nations agency charged with
administering the Convention.
In Australia, certainly since the comments of Justice Lockhart in 1992,
the Department, the Refugee Review Tribunal and the Courts have heard
increasing numbers of cases by applicants claiming persecution on the
basis of sexual orientation and in consequence as a member of a particular
social group. Appended to this paper is a summary of cases by country
considering the issue in the Refugee Review Tribunal.
3. Is the Applicant Really Gay?
One of the fundamental questions which representatives must face when a
client presents claiming protection on the basis of persecution because of
being homosexual, is the basic question, is the applicant really gay?
Credibility is always a significant issue in all refugee cases. In this
area of refugee law, the ability to determine the sexual orientation of
the claimant is particularly difficult. There is no judicial statement in
Australia on the correct means of determining a person's sexual
orientation. This is largely because the ability to access the court
system in refugee matters is limited only to questions of law and the
courts have studiously avoided opening "the can of worms"
associated with looking behind the Tribunal's adverse finding based on an
assessment of credibility. The Refugee Review Tribunal has noted the
difficulty of establishing whether a person is homosexual. See N97/16112
dated 2 November 1998. In fact, many cases do turn on the issue of the
applicant's credibility. A recent discussion of the problem of credibility
appears in Khalili Vahed v MIMA (2001) FCA 1404 delivered 4 October
2001 for an applicant from Iran who had given inconsistent evidence of his
claimed sexual orientation at different times during the assessment
process, although in the end the Tribunal had accepted the applicant was
in fact gay, but refused him for other reasons. The Refugee Review
Tribunal has in some cases rejected as not conclusive the use of medical
evidence such as psychiatric assessment, penile plethysmography or anal
examination in assessing an applicant's sexuality. Rather, the Tribunal
appears to prefer to make the assessment based on all the evidence, the
applicant's demeanour throughout the whole process and in particular,
during the hearing and the nature of corroborative evidence provided.
Another issue which flows from this question relates to where a person has
multiple sexual preferences. Particularly, this applies to bisexuals, or
in the case of persons who may have been homosexual but then may decide
either to not practice any sexual conduct, or alternatively to renounce
their former sexual orientation (if possible!) - as is the case I am
currently arguing for a Nigerian applicant. The issue may still be
significant as the person may be subject to persecution for past
homosexual conduct notwithstanding their changed sexual behaviour. In fact
there are a few reported decisions involving bisexuals and none that I am
aware of in the Australian jurisdiction relating to transgender cases. In
the case of V97/06483 dated 5 January 1998 the Tribunal took the view that
an applicant who is bisexual couldn't function heterosexually and
therefore avoid persecution. In Applicant A (1997) 142 ALR p.390
Justice Kirby did make reference to the possibility that bisexuals may be
upheld as particular social groups in countries where their sexual
conduct, like that of homosexuals even when with adults and in private, is
illegal. With reference to transgender people and transsexuals, as noted
above – the issue of whether they may constitute a particular social
group within the Australian definitional concept appears not to have been
the subject of Tribunal decision.
4. What Constitutes Persecution?
(a) General
If an applicant is able to establish, as is usually the case, that the
relevant nexus to the Convention exists, based on social group, the
applicant must then establish that he or she has a fear of persecution.
The Australian jurisdiction on what constitutes persecution starts with
the discussion in Chan v Minister for Immigration & Ethnic Affairs
[1989] 169 CLR 379. That High Court case held that persecution may be
defined as serious harm. The comments of Justice McHugh are significant.
He noted:
- "The term 'persecuted' is not defined by the Convention or
the Protocol. But not every threat of harm to a person or interference
with his or her rights for reasons of race, religion, nationality,
membership of a particular social group or political opinion constitutes
'being persecuted'. The notion of persecution involves selective
harassment. It is not necessary, however, that the conduct complained of
should be directed against a person as an individual. He ir she may be
'persecuted' because he or she is a member of a group which is the
subject of systematic harassment … Nor is it a necessary element of
'persecution' that the individual should be the victim of a series of
acts. A single act of oppression may suffice. As long as the person is
threatened with harm and that harm can be seen as part of a course of
systematic conduct directed for a Convention reason against that person
as an individual or as a member of a class, he or she is 'being
persecuted' for the purposes of the Convention. The threat need not be
the product of any policy of the government of the person's country of
nationality. It may be enough, depending on the circumstances, that the
government has failed or is unable to protect the person in question
from persecution …Moreover, to constitute 'persecution' the harm
threatened need not be that of loss of life or liberty. Other forms of
harm short of interference with life or liberty may constitute
'persecution' for the purposes of the Convention and Protocol. Measures
'in disregard' of human dignity may, in appropriate cases, constitute
persecution … (Citations omitted)
McHugh J returned to this description of "being persecuted"
in Minister for Immigration and Multicultural Affairs v Haji Ibrahim
(2000) 175 ALR 585 ("Ibrahim"). In connection with the
expression "systematic conduct", his Honour said at [99]:
- "It is an error to suggest that the use of the expression
'systematic conduct' … was intended to require, as a matter of law,
that an applicant had to fear organized or methodical conduct, akin to
the atrocities committed by the Nazis in the Second World War. Selective
harassment, which discriminates against a person for a Convention
reason, is inherent in the notion of persecution. Unsystematic or random
acts are non-selective. It is therefore not a prerequisite to obtaining
refugee status that a person fears being persecuted on a number of
occasions or 'must show a series of coordinated acts directed at him or
her which can be said to be not isolated but systematic'. The fear of a
single act of harm done for a Convention reason will satisfy the
Convention definition of persecution if it is so oppressive that the
individual cannot be expected to tolerate it so that refusal to return
to the country of the applicant's nationality is the understandable
choice of that person". (Citations omitted)
As McHugh J noted in Ibrahim at [55], the Convention protects
persons from persecution, although not from discrimination not amounting
to persecution. There may be occasions when selective harassment is not
"so intensive, repetitive or prolonged that it can be described as
persecution": see Ibrahim at [55]. His Honour considered that
"the threat of harm will ordinarily be persecution only when it is
done for a Convention reason and when it is so oppressive or recurrent
that a person cannot be expected to tolerate it": see Ibrahim
at [61]. Drawing these ideas together, his Honour said at [65]:
- "Framing an exhaustive definition of persecution for the
purpose of the Convention is probably impossible. Ordinarily, however,
given the rationale of the Convention, persecution for that purpose is:
- unjustifiable and discriminatory conduct directed at an individual
or group for a Convention reason
- which constitutes an interference with the basic human rights or
dignity of that person or the persons in the group/li>
- which the country of nationality authorizes or does not stop,
and/li>
- which is so oppressive or likely to be repeated or maintained that
the person threatened cannot be expected to tolerate it, so that
flight from, or refusal to return to, that country is the
understandable choice of the individual concerned."
/li>
(Quoted from Roguinski v MIMA (2001) FCA 1327 dated 17 September
2001 – per Kenny J)
In Australia, the paradigm developed by Professor Hathaway has been
accepted as a useful starting analysis. Clearly, where the applicant's
first level rights (i.e. those enunciated in the International Covenant on
Civil and Political Rights from which no derogation is permitted)
including freedom from arbitrary deprivation of life, protection against
torture or cruel, inhuman or degrading punishment, freedom from slavery,
the right to recognition as a person in law and freedom of thought,
conscience and religion are affected, persecution will be usually found to
exist. Generally, where a person's second level rights are denied,
persecution will also be accepted. These include freedom from arbitrary
arrest and detention, the right to equal protection, the right to a fair
criminal process, the protection of personal and family privacy and
integrity and freedom of opinion, expression, assembly and association.
Where a person's third level rights, specifically those enunciated in
the International Covenant on Econmoic Social and Cultural Rights
including the right to work, the right to food, clothing, housing medical
care, social security and education are concerned, the Australian Courts
have been less prepared to accept that denial or deprivation amounts to
persecution, except in limited circumstances. Similarly, depravation of
the fourth level of rights enunciated by Hathaway will rarely constitute
persecution.
Within the context of sexual orientation persecution however, the issue
is far from clear and as will be noted in the discussion which follows, a
stricter test of what constitutes persecution appears to have been
developed by the Federal Court and the Refugee Review Tribunal for persons
claiming persecution as a consequence of sexual orientation problems than
applies in the case of persons claiming persecution under other convention
grounds.
In this context it is also significant to mention that with effect from
October 2001, substantial amendments were made to the Migration Act to
provide inter alia a definitional provision for the interpretation of what
constitutes persecution, which has yet to be tested or explained in
detail.
(b) Discrimination v Persecution
As noted in paragraph 53 of the UNHCR Handbook, there is a difference
between discrimination and persecution.
- "It is only in certain circumstances that discrimination will
amount to persecution. This would be so if measure of discrimination
lead to consequences of a substantially prejudicial nature for the
person concerned, eg. serious restrictions on his right to earn his
livelihood, his right to practice his religion or his access to normally
available educational facilities… Where measure of discrimination are,
in themselves, not of a serious character, they nevertheless may give
rise a serious fear of persecution if they produce, in the mind of the
person concerned, a feeling of apprehension and insecurity as regards
his future existence… A claim to fear of persecution will of course be
stronger where a person has been the victim of a number of
discriminatory measures of this type and where there is thus a
cumulative element involved."
Thus social discrimination, or even legal discrimination in many
instances, will generally not be seen as sufficient to ground a claim to
refugee status. To quote Justice McHugh in Applicant A:
- "Ordinarily the persecution will be manifested by a series of
discriminatory acts directed at members of a race, religion, nationality
or particular social group where that those who hold certain political
opinions in a way that shows that, as a class, they are being
selectively harassed."
There is sometimes a fine line between what amounts to serious
discrimination and persecution. Certainly, each case must be looked at in
the light of its particular facts and the background country information.
Even then, there is no consistency as is self-evident from the appended
chart which illustrates the contradictory results for applicants from the
same country. Thus, it seems hard to reconcile decisions N98/23791 of 31
January 2001 and N98/22498 of 20 November 2000 both concerning applicants
from Colombia, the former declined and the second case approved; N98/23844
of 29 August 2000 (a female) and V99/10323 of 14 April 2000 (a male)
(inconsistent decisions concerning India); N01/37352 (of 24 April 2001)
and V01/12689 (of 24 May 2001) concerning Iranian males; N98/24071 of 29
September 2000, and N99/27780 of 6 July 2001 (concerning Russian men) and
N00/32557 (6 August 2001) concerning a successful gay applicant from the
Ukraine; and even more strangely N95/08867 (20 May 1996), N95/08735 (25
January 1996) and BN94/06026 (31 July 1995) concerning applicants from
Brazil, all heard by the same Member, where the first two were declined
and the third approved by reference to country material not referred to in
the former two cases!
(c) The Criminal Law and Persecution
An analysis of the decisions of the Refugee Review Tribunal shows that it
is not necessary for an applicant claiming persecution to show that the
law of the country actually criminalises same sex conduct before an
applicant can establish persecution. Thus, there are cases where
applicants from Russia, Poland, Former Yugoslavia and Brazil have been
granted protection visas (the technical term for refugee status in
Australia) notwithstanding the absence of formal criminal sanctions.
Similarly, as for example in the case of Peoples Republic of China, where
the criminal law may be silent in relation to same sex conduct but where
other laws, eg. summary offence laws are often applied selectively against
homosexuals, applicants have been found sometimes to be eligible to be
granted protection. Conversely, in countries where the law may proscribe
such conduct, with potentially substantial criminal sanctions including
lengthy years of imprisonment, the mere existence of the laws does not
necessarily mean that an applicant will be assured of having a claim
approved. In such situations the Australian Courts have tended to require
evidence that the criminalising law is more than a dead letter law but
that prosecutions are actually initiated. Thus, cases from India, Pakistan
and Malaysia have been declined on this ground. It is submitted that where
the law criminalises conduct which it is now accepted ought not be the
subject of criminal sanctions, an applicant is entitled to be granted
Convention protection. This is to be distinguished from the situation
where applicants claim protection because of prosecution for a criminal
offence which it is generally accepted ought be the subject of
criminal law sanctions.
In MMM v Minister for Immigration [1998] FCR 324, Justice
Madgwick stressed the significance of the need for the actual enforcement
of the criminal law proscribing same sex sexual activity. That case
involved an applicant from Bangladesh where the Tribunal had inter alia
found that the absence of evidence of the use of the Bangladesh Penal Code
meant that the applicant's claims were not well founded. Counter arguments
put to the Tribunal were not accepted and were not considered by the
Court; in particular, the claim that where a law proscribing same sex
conduct was on the books, people were expected to comply with the law. Law
abiding citizens therefore would not be able to participate in activity
which is fundamental to and an intrinsic part of their identity, the
breach of which in particular breaches the ICCPR Articles guaranteeing the
right to privacy and the right to protection against discrimination (as
found justified by the Human Rights Committee in the complaint of Toonan
v Commonwealth of Australia UNHRC/UNDOC/ICCPR/C/50/D/488/1992 (1994),
with respect to the laws of Tasmania). Further, the absence of reported
decisions of prosecutions should not be taken as confirmation that in fact
prosecutions do not take place. Rather, this may merely be indicative for
example, of poor judicial reporting standards. These arguments seem to
fall on deaf ears!
There is a further distinction to be made between prosecutions for same
sex sexual activity between consenting adults in private, where
persecution would most probably be found to exist and the situation where
individuals engaged in public activity, for example in public
toilets or parks or in cars or other public places. Such conduct, where
targeted by the criminal law was not found to amount to persecution by the
Full Court of the Federal Court of Australia in Minister for
Immigration v Gui [1999] FCA 1496. In that case the applicant had been
arrested, beaten and detained for three months by police after he and his
partner were found kissing and cuddling in a public park. The RRT
concluded that the applicant's behaviour was unacceptable according to the
cultural norms prevailing in China. The Trial Judge had held that the lack
of discretion of the applicant in his sexual conduct did not negate the
fear of persecution on convention grounds. However, in what may be
considered a somewhat unsatisfactory decision, the Full Court noted that
what precipitated the police action was not Mr Gui's membership of a
particular social group but his conduct in a public place. The Court
however did not address the issue of whether the treatment the applicant
received was discriminatory, nor the fact that the applicant may well have
been unable to engage in sexual intimacy with his partner in private and
that the authorities patrolled public parks for this very reason. In F
v Minister for Immigration [1999] FCA 947, Justice Burchett noted "It
cannot reasonably be maintained that simply because the country's law
restricts sexual activity between consenting adults, those who do not wish
to obey it are ipso facto persecuted, whether it is enforced by the
authorities or not."
(d) Persecution by the Authorities
Frequently, applicants claim persecution exists because of harassment and
violence by the police or other state agents. It is not uncommon,
especially in some third world countries, for police to abuse their powers
against sexual minorities for financial gain, and indeed in some cases for
sexual favours. In such situations, the victims of violence perpetrated by
others may find it impossible to seek the protection of the police or the
authorities. In the MMM case, Justice Madgwick did not adopt a
particularly sympathetic approach to persons who were vulnerable to police
extortion. The Tribunals seem to be reluctant to accept as sufficient
grounds for establishing a persecution, the fact that police may target
and harass known homosexuals. On the other hand, in one case in which I
acted concerning a Pakistani applicant who was subjected to police
brutality because of his overt homosexual appearance, the Tribunal found
the claim of persecution established.
(e) Persecution by Non-State Actors
In a situation where the persecutors are non-state actors, e.g. employers,
violent strangers or family members (a not uncommon situation in countries
where the problem of honour killings is significant – e.g. Jordan and
other Middle Eastern countries), it seems that it is necessary for an
applicant to establish that the state is unwilling or unable to protect
the claimant from the persecutory conduct feared. Arguments made that
persecution exists where applicants are pressured to marry against their
will, and where they face familial rejection without actual threats of
physical violence, are rarely likely to succeed in Australia. In a very
recent case concerning a Bangladeshi applicant, the Tribunal dismissed
this issue on the basis that the pressure to marry was applied across the
board to all men. This unsatisfactory approach ignored the discriminatory
and selective consequences of the pressure to marry for homosexuals for
whom marriage to a person of the opposite sex is unfair to in fact both
partners to the marriage. The negative approach taken to claims arising
from familial and social rejection of homosexuals may be contrasted with
the more sympathetic approach taken by the Tribunal, for example to claims
made by people living with HIV – thus in N95/08165 and N94/04178, a case
which also noted that people diagnosed as infected with HIV formed an
identifiable social group for the purposes of the Convention definition,
the Tribunal noted that "Ostracism from ones family and community
may amount to persecution when it is in a severe form which deprives the
person of social contact and human dignity". This compassionate
approach was not though followed in other cases: eg, V96/04392 (from
Malaysia) and N95/07740.
Further, it has been occasionally accepted in Australia that social
ostracism for people who have entered into inter-caste or inter-religious
marriages may, in appropriate factual situations, lead to their claims for
protection being recognised – see for example, the decision in Case
93/00998 dated 9 May 1994 and the cases of N95/07573 and N95/09371 dated 2
April 1996 concerning an intercaste Indian marriage.
(f) The Issue of Discretion
One of the most significant areas in this area of the law relates to
whether it is reasonable to require the homosexual to be discreet and if
by so doing the applicant can avoid trouble then the claimed fear of
persecution is rejected. The decision of the Tribunal are in conflict on
this significant question. Whilst it is accepted that an applicant who is
gay and overt may, in the appropriate factual situation, clearly establish
a claim, the Tribunal has held that it is not unreasonable to expect
applicants to be discreet in conduct (V94/02607 concerning the Peoples
Republic of China). Where the applicant is already "out" so that
discretion is no longer possible, this issue would not usually arise. A
question which has not been addressed though is whether an applicant can
make a sur place claim on the basis that they "out" themselves
and thereby preclude the opportunity of resuming the discrete lifestyle
formerly followed. The Federal Court has taken similarly a contradictory
approach to this issue of discretion. Justice Hely, who heard Gui's
case at first instance ([1998] 1592 FCA) took a negative view of the
discretion approach. In Bhattachan [1999] FCA 547, Justice Hill, in
an obiter dictum, noted that a question posed by an RRT member of a
Nepalese applicant whether he considered living a secret gay life and
perhaps marrying as many had and did, was an unacceptable question. The
Judge stated:
- "As to the legal irrelevance of that comment, let it be
assumed that the relevant social group were those of a particular
opinion, say fascism, to which another political opinion was opposed,
say communism. Would it be an answer to persecution on the grounds that
a person was a member of a group espousing fascism to say that person
might well cohabit with a person of the opposite political persuasion,
thereby disguising his or her political opinion? That is to say nothing
about the appalling consequences to both the applicant and to the person
with whom it was suggested he should cohabit to conceal his sexual
orientation."
In applicant LSLS v Minister for Immigration [2000] FCA 211,
Justice Ryan did not find that a Tribunal which considered that an
applicant from Sri Lanka could pursue discreetly homosexuality without it
becoming public knowledge erred in law in adopting this approach. In F,
Justice Burchett held that the RRT was entitled to conclude that "The
severe provisions of the Islamic penal code in Iran are not enforced,
except in rare cases concerning persons who are notably indiscreet. All
persons in Iran, whatever their sexual orientation, have to be discreet in
sexual matters."
On the other hand, in a more recent decision, MIMA v Guan (2000)
FCA 1033, Justice Moore at para 24 noted:
- "It is clear that Ryan J was not propounding a principle
that, as a matter of law, persecution of a member of a particular social
group, namely homosexuals, would not arise if harm was avoided by the
member being discreet about their sexuality while being able to give
effect to their sexuality privately or at least not publicly. Indeed, as
noted previously, no such legal principle was advanced by counsel for
the Minister."
It seems strange that a country like Australia which permits such overt
public outpourings of homosexual pride as the annual Sydney Gay &
Lesbian Mardi Gras should nevertheless adopt the somewhat prudent approach
in this area. By contrast also, the Federal Court has held a requirement
of discretion in the context of religious expression was unacceptable. In
a leading case of Re Woudneh dated 16 September 1988 (unreported),
Justice Grey stated that "In the absence of evidence that the
applicant could conceal his faith, consistently with practising it, it was
not open to the first respondent (the Minister) to conclude that he would
not be persecuted because his faith was unknown to the authorities. The
mere fact of the necessity to conceal would amount to support for the
proposition that the applicant had a well founded fear of persecution on
religious grounds."
5. Relocation
In deciding whether or not an applicant is a refugee, an assessment
must also be made as to whether or not the applicant can effectively
relocate to another part of his or her country and receive protection
there. The leading case in Australia enunciating the principles in
relation to relocation is Randhawa v Minister for Immigration
[1994] 52 FCR 437 which also adopted the approach of Hathaway (pages
133-4). In that case Chief Justice Black stated at page 442:
- "In the present case the delegate correctly asked whether the
appellant's fear was well founded in relation to his country of
nationality, not simply the region in which he lived. Given the
humanitarian aims of the Convention, this question was not to be
approached in a narrow way and in her further analysis the delegate
correctly went on to ask not merely whether the appellant could relocate
to another area of India, but whether he could reasonably be expected to
do so.
This further question is an important one because notwithstanding that
real protection from persecution may be available elsewhere within the
country of nationality, a person's fear of persecution in relation to
that country will remain well-founded with respect to the country as a
whole if, as a practical matter, the part of the country in which
protection is available is not reasonably accessible to that person. In
the context of refugee law, the practical realities facing a person who
claims to be a refugee must be carefully considered."
An interesting analysis of the issue was made by Justice Mansfield in Singh
v Minister for Immigration [2000] FCA 1704 delivered 27 November 2000,
concerning an applicant from India. In that case, the Tribunal had
concluded that
- "the clear weight of available evidence is that
notwithstanding the existence of draconian provisions under the Indian
Penal Code and widespread disapproval of homosexual behaviour, any
chance of homosexuals actually facing persecution in the larger cities
of India, such as New Delhi or Bombay, is remote and increasingly
so".
The Court upheld the Tribunal's decision.
6. Conclusion
Ultimately, each case must clearly be considered on its own facts. The
applicant must establish that on the basis of his or her particular
problems persecution is established and protection is not available in the
applicant's home country. In assessing the claims, the Tribunal will be
guided by the known human rights situation in the applicant's country, as
published in the many human rights reports. It is regrettable, with the
exception of Amnesty International and the International Gay & Lesbian
Human Rights Commission, Asylum Project, based in San Fransisco, there is
an absence of human rights reporting on issues affecting homosexuals,
bisexuals and persons with transgender sexual preferences. In particular,
it is time for sympathetic governments (notably the USA in its annual
State Department country reports) to address the situation. Fortunately,
the UNHCR has, like other mainstream international non-government
organisations accepted that persons may be persecuted for reasons of
sexual orientation. On the other hand, many countries throughout the world
continue to ignore the issue, even countries where the domestic criminal
law does not criminalise same sex conduct.
I will conclude by giving an example of this conspiracy of silence. In
1996 I was asked to address a major seminar on human rights, held at the
University of Dhaka in Bangladesh. I spoke on the issue of refugees.
Another speaker spoke on the plight of persons afflicted with HIV and the
growing problems associated with this medical crisis in the Subcontinent.
In the discussion which followed, I passed in public the observation that
whilst Bangladesh law continued to criminalise homosexual conduct, it
would be difficult for the authorities to address the serious problem of
the homosexual transmission of AIDS. I noticed an audible silence in the
auditorium at my mention of the term homosexuals before the gathered
throng of self-avowed human rights advocates. I then somewhat audaciously
suggested that the gathering could propose a motion calling on the
Bangladesh government to move to decriminalise homosexual conduct between
consulting adult men in private. My suggestion led to open consternation.
The proceedings of that session came to an abrupt halt and I was ushered
quickly aside and spoken to by the learned professors who had organised
the meeting, in the strongest yet polite terms. My motion was clearly in
their view out of order as it would offend the Government and it was
unacceptable in Bangladesh to talk about conferring rights on homosexuals
who were considered to be degenerate individuals unworthy of protection. I
was asked to refrain from raising the topic during the remainder of the
conference proceedings. The only utterance of support I received for my
suggestion was from the Sri Lankan female guest speaker who had addressed
on the problems of the AIDS pandemic. She, like I, was an outsider to the
proceedings and her similar expressions of support in private to my motion
were quickly quashed. It was a salutary lesson on the substantial divide
which still exists between peoples and the distance that human rights
advocates must still travel if they are to give meaningful expression to
the principles they espouse in theory.
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