Australia’s (Mis)Treatment of LGBTI Refugees

Posted on May 12, 2019 by Alastair Lawrie

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.

Of all the issues that involve human rights violations against lesbian, gay, bisexual, transgender and intersex people in Australia there are two that particularly stand out (at least in my view).

One – ongoing coercive medical treatments and surgeries on children born with intersex variations – I have written about previously.

The other is the deliberate mistreatment of LGBTI refugees and people seeking asylum by the Australian Government.

Of course, this abuse is only one small part of Australia’s broader shameful approach to refugee issues, but, as we shall see below, it does raise specific issues around where people are processed and how claims are assessed.

The following are three key areas where the Australian Government’s approach to LGBTI refugees and people seeking asylum should urgently be improved, as well as one suggestion for further consideration.

End the detention, processing and settlement of LGBTI refugees in countries that criminalise homosexuality

To begin, I should reiterate my personal opposition to Australia’s overall ‘offshore processing’ policy, which essentially involves the indefinite detention of refugees in prisons in the South Pacific. There is no justification for this approach.

There can also be no possible justification for the detention, processing and settlement of LGBTI refugees and people seeking asylum in countries that criminalise homosexuality. And yet that is exactly what Australia has done for the past seven years.

This includes Nauru, where homosexuality remained criminalised until May 2016,[i] and Manus Island in Papua New Guinea, a country where the maximum penalty for male same-sex intercourse is still 14 years imprisonment.

There is no exception for people held in Australia’s immigration detention facilities in these countries either. This is demonstrated by the following report from Behrouz Boochani in The Guardian:

It was five years ago in Fox prison camp. A group of immigration officers accompanied by a number of interpreters burst in. All of a sudden, one of the officers stood on a chair precisely like a king’s representative in ancient times, like one of those men reading the king’s announcement for convicts. The officer took a piece of paper, and surrounded by dozens of refugees he started to read. The announcement was serious, decisive, to the point and threatening, like his voice. “Homosexuality is illegal in Papua New Guiana [sic] and considered as a crime. If anyone in the immigration detention engages in this behaviour, he will be sentenced to 14 years in prison.” It was a dire warning from the prison’s officials and directly targeted homosexual prisoners.

The article then details the horrendous impact of these laws on Alex* (pseudonym), a gay Iranian refugee imprisoned on Manus Island, who was gradually but inevitably broken by the homophobic environment there, through intimidation, harassment, abuse and even rape. His experiences ultimately led him to risk his life again by returning to Iran, before seeking asylum elsewhere – and served as a cautionary tale to other queer men on the island. As Boochani concluded:

No one knows how many gay, transgender or bisexual refugees live on Manus, but what is clear is that the suffering they experienced in their countries has been repeated on Manus in a disastrous way. Fear, humiliation, threat, banishment, rape – these are all concepts and experiences lived daily by these men. Gay, transgender and bisexual men here have experienced even greater torment than other refugees. [emphasis added]

Successive Australian Governments have been fully aware of these abuses. I know, because I have written about this issue to multiple Immigration Ministers,[ii] including then Minister – now Prime Minister – Scott Morrison in 2014. His Department’s response failed to even guarantee that LGBTI asylum seekers would not be reported to PNG police for same-sex sexual activity.

Given his ‘tough on border security’ rhetoric, there appears little hope that a re-elected Morrison Liberal-National Government would take any action to address these human rights violations.

On the other hand, there is some chance that a Shorten Labor Government might finally take a different approach. This is at least in part due to a commitment in the 2018 Australian Labor Party National Platform that:

Labor will not detain, process or resettle lesbian, gay, bisexual, transgender or intersex refugees or asylum seekers in countries which have criminal laws against any of these communities as it makes these places unsafe environments for all of them.[iii]

Consequently, there is a possibility the situation may change, along with the Government, on Saturday 18 May – although that will only happen if LGBTI and refugee advocates maintain pressure on Labor to fulfil this commitment.

The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).

Improve the assessment process for LGBTI claims for asylum

This is another major problem confronting lesbian, gay, bisexual, transgender and intersex refugees and people seeking asylum in Australia, one that has existed for many years, even decades.

Practically, the decision-makers of the Refugee and Migration Division of the Administrative Appeals Tribunal (known until 2015 as the Refugee Review Tribunal) have struggled to appropriately consider the diversity of sexual orientations and gender identities from other countries, leading to a very low rate of success in receiving refugee protection (a 2003 study by Professor Jenni Millbank showed that at most only 20% of claims were approved).

As reported in the Sydney Morning Herald:

Tribunal officials have long been accused of judging applicants based on a slew of Western gay stereotypes, such as effeminate manner or dress. In one notorious case, an applicant was deemed not gay after failing questions about Madonna, Better Midler, Oscar Wilde and Greco-Roman wrestling. The man barely spoke English and was mystified by the topics. “I don’t understand it,” he said to his interviewer. “I’m sorry.”

When in 2004 his case came before the High Court on appeal (after the Federal Court had first ruled against the applicant), the justices were staggered by the line of questioning used by the Tribunal, describing it as very odd, and almost bordering on the bizarre. “Madonna, Better Midler and so on are phenomena of Western culture,” declared Justice Michael Kirby at the time. “In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind. Survival is.”

Unfortunately, more recent cases do not indicate that this inherent Western-gay bias has been overcome. The SMH further reported that:

Last year [2016], a man from Bangladesh was rejected in part because he was unable to correctly pronounce or spell the name of a Sydney gay club he’d visited called the Stonewall, according to Tribunal documents – which incorrectly referred to the nightclub as a “day venue”. In a similar 2014 case, an asylum seeker was told he wasn’t gay because, although he described having two monogamous relationships, he hadn’t “explored his homosexuality” by going to Sydney’s gay bars, and had little knowledge of Oxford Street.

There are additional reports of Tribunal members asking inappropriately sexual questions, as well as applicants being encouraged to supply video of themselves engaging in sexual activity in an attempt to ‘prove’ their homosexuality to the Tribunal. This occurs because, as the SMH notes, “there are no guidelines for dealing with LGBTQI applicants.”

This situation must change, as a matter of priority. Unfortunately, there is no indication that a re-elected Morrison Liberal-National Government will take action to address these problems.

Once again, however, these is some reason to be optimistic about a Shorten Labor Government, which includes these commitments in its Platform:

The assessment and review of protection claims of specific lesbian, gay, bisexual, transgender, intersex and queer asylum seekers will be underpinned by appropriate and relevant assessment tools and processes that reflect cultural experiences of the lesbian, gay, bisexual, transgender, intersex and queer community.

…

In assessing asylum claims where the fear of persecution arises from a person’s lesbian, gay, bisexual, transgender, intersex and queer status, the fact that the country the person is fleeing has criminal penalties for engaging in homosexual sex is sufficient of itself to establish that fear of persecution is well-founded, and any assessment of the asylum seeker’s identity and fear must take account of the very different manifestations of lesbian, gay, bisexual, transgender, intersex and queer identity that other cultures, especially ones profoundly hostile to lesbian, gay, bisexual, transgender, intersex and queer people, necessarily engender.

Labor will ensure asylum seekers who self-identify as lesbian, gay, bisexual, transgender, intersex and queer will be assessed by officers who have expertise and empathy with anti-discrimination principles and human rights law. Officers, translators and interpreters at all levels of the assessment process will have specific lesbian, gay, bisexual, transgender, intersex and queer cultural awareness training to ensure the discrimination asylum seekers face in their country of origin or transit are not replicated.

As with ending detention of LGBTI refugees in countries criminalising homosexuality however, the challenge will be in ensuring that a new Government follows through on its promises.

Increase support for LGBTI refugees and people seeking asylum in Australia

Another area where urgent reform is needed is the level of support provided to lesbian, gay, bisexual, transgender and intersex refugees within Australia.

The few dedicated support services that exist receive minimal funding, and consequently are unable to meet the significant needs of this vulnerable population.

Particular challenges include the fact that LGBTI refugees and people seeking asylum may not be comfortable in disclosing their sexual orientation, gender identity or sex characteristics to services based on their ethnicity or background, but at the same time may not be welcomed by or receive adequate support from LGBTI services.

As noted in a 2018 Star Observer article on this topic:

LGBTI asylum seekers can also find themselves caught between lack of acceptance from diaspora communities and lack of understanding from mainstream LGBTI communities.

First and foremost, these gaps should be addressed by providing direct Government funding for peer-led LGBTI refugee services. However, this alone may not be sufficient to ensure LGBTI refugees and people seeking asylum are able to access the full breadth of services they may require.

Therefore, there should also be funding to support education and training programs for ethnic community organisations to assist them to be welcoming environments for LGBTI refugees (as well as inclusiveness training for interpreters, who have a key role to play not just in supporting LGBTI people seeking asylum to access services, but also in their claims for protection).

There is also a need for LGBTI community organisations to provide greater social support and outreach to LGBTI refugees and people seeking asylum in Australia. This would help to establish connections between LGBTI refugees and the wider LGBTI community, and may result in better social outcomes over the medium- to long-term.

**********

While the above three issues are presented as concrete recommendations for change, the following suggestion is raised to prompt further discussion:

Introduce quotas or targets for the intake of LGBTI refugees

I should preface this discussion by saying that, philosophically, I don’t support the introduction of quotas or targets within Australia’s overall refugee program based on demographic criteria. Instead, Australia should accept refugees based on the assessment of need by the UN Refugee Agency (the UNHCR).

However, that is not how the Australian refugee framework currently operates.

Since 2015, the Australian Government has adopted a policy of prioritising Christian refugees from the Middle East (which itself is/was a part of the special quota for refugees fleeing the conflict in Syria and Iraq, operating in addition to Australia’s regular refugee intake).

I agree with many of the criticisms of this approach made in this New York Times column, Australia’s immoral preference for Christian refugees, although these criticisms do not appear to have influenced Australia’s ongoing pro-Christian bias.

Indeed, it seems the Morrison Liberal-National Government wants to introduce even greater demographic criteria within the refugee program.

During the election campaign, it has announced ‘the proposed makeup of the humanitarian program for the first time. This will include an overall target of 60% of the offshore component allocated to women. Women made up 50.8% in 2017-18.’[iv] [emphasis added]

In this context, the obvious question is: if Christians and women receive allocated quotas (or targets), then why not lesbian, gay, bisexual, transgender and intersex refugees?

Indeed, there are strong arguments in favour of this approach.

Based on analysis of 2018 UNHCR figures, and the 2019 ILGA State-Sponsored Homophobia Report, of the five top refugee-hosting countries, four retain criminal sanctions for homosexuality:

Country	Number of refugees	Criminal penalties for homosexuality
Turkey	3.5 million	Not criminalised
Uganda	1.4 million	Life imprisonment
Pakistan	1.4 million	10 years
Lebanon	1 million	1 year
Iran	979,400	Death penalty

A significant number of LGBTI refugees are therefore unsafe and at risk even after they have fled persecution elsewhere.

There are also a number of countries in our own Oceania region that criminalise homosexuality, including PNG, Kiribati, Solomon Islands, Tuvalu and Cook Islands (all of which have a maximum penalty of 14 years imprisonment), Tonga (10 years imprisonment) and Samoa (5 years imprisonment). And that’s not mentioning the recent attempt by the Government of Brunei to introduce the death penalty (which they have backed down from – for now – but retain a punishment of imprisonment up to 10 years).

As stated earlier, my personal preference is that there are no demographic criteria for determining the intake of refugees. But, if Australia’s current approach, which gives priority to Christians and women, does continue, I can see no good reason why there should not also be quotas or targets for the intake of refugees who are lesbian, gay, bisexual, transgender and intersex.

**********

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:

[i] Of course, just because homosexuality has been decriminalized in Nauru doesn’t necessarily mean it is now a welcoming environment for LGBTI refugees and people seeking asylum. This is confirmed by the following accounts, including:

In detention: Gay on Nauru, in Archer Magazine (July 2018) and

True love in Nauru, in The Monthly (September 2017)

[ii] Lest I be accused of partisanship, I also wrote to Labor Immigration Ministers Chris Bowen and Brendan O’Connor on the same subject in 2012 and 2013.

[iii] This is a commitment I drafted ahead of the 2015 National Conference, and remains one of my proudest achievements in LGBTI advocacy.

[iv] Of course, there is a great irony in the Coalition supporting a gender-based quota for refugee intake, while it steadfastly opposes gender-based quotas for the pre-selection of its candidates.

Do you feel proud, Malcolm?

Posted on October 25, 2016 by Alastair Lawrie

Update 18 February 2017:

Over the past five years I have written to a number of Immigration Ministers (including Chris Bowen and Brendan O’Connor under Labor, and Scott Morrison under the Coalition), expressing concerns about the mistreatment of LGBTI people seeking asylum, and especially the policy of detaining, processing and resettling LGBTI refugees in countries that criminalise homosexuality (such as Papua New Guinea and, until May 2016, Nauru).

It is fair to say that I have received an equal number of disappointing replies to my correspondence – my letters, and the responses to them, are published here.

I was prompted to write again in October 2016, this time to Prime Minister Malcolm Turnbull, following the exchange between Labor Senator Louise Pratt and the Secretary of the Department of Immigration and Border Security, Mr Michael Pezzullo, at Senate Estimates.

During that exchange, not only did Mr Pezzullo display a stunning lack of awareness of the ongoing criminalisation of homosexuality in our nearest neighbour, he also seemed uninterested in the issue of how PNG’s criminal laws might impact LGBTI people seeking asylum sent there by the Australian Government.

Predictably – although still shocking – Mr Pezzullo argued that Australia’s obligation towards these people seeking asylum ended at the point of transfer to Manus Island, and therefore we collectively bore no responsibility for ensuring that their human rights were respected.

The full letter I wrote to the Prime Minister is reproduced below. Almost four months later I have finally received a response, not from Mr Turnbull, nor even from the current Immigration Minister Peter Dutton, but instead from the Department of Immigration of Border Protection. This is what they sent:

Dear Mr Lawrie

Thank you for your correspondence of 9 November 2016 to the Prime Minister, the Hon Malcolm Turnbull MP, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. Your correspondence has been referred to the Minister for Immigration and Border Protection as the matters raised fall within his portfolio responsibilities. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I apologise for the delay in responding.

As out lined in the Department’s response to your previous letters to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, and the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, Australia takes its international obligations seriously, including those under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

As previously advised, the Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to a regional processing country where any asylum claims they may have will be assessed. The Government has signed Memoranda of Understanding with the Governments of Nauru and Papua New Guinea (PNG), which support this.

As previously noted in the Department’s response to your letter to the former Minister for Immigration and Border Protection, the Hon Scott Morrison MP, any claims made against a regional processing country by the IMA, including claims concerning the treatment of homosexuals in the regional processing country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed regional processing country, or an alternative regional processing country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.

As previously advised, the enforcement of PNG domestic law is a matter for the Government of PNG. The Australian Government is aware of laws relating to homosexual activity in PNG but also understand that there have been no reports of prosecutions under those laws since 2012. As of May 2016 same-sex activity is legal in Nauru.

Further, I confirm that if homosexual activity should occur in the Regional Processing Centres, there is no mandatory obligation under PNG or Nauru domestic law for Australian officers or contracted service providers to report such activity to the respective Government or police.

Thank you for brining your concerns to the Government’s attention.

Yours sincerely

[Signature withheld]

A/g Director ABF Ministerial Correspondence Section

Support Group – Australian Border Force

14 February 2017

There are obviously a number of worrying statements in this letter, including:

The Department of Immigration and Border Protection has reiterated the process that LGBTI people seeking asylum who arrive by boat must, in the short period between arrival and transfer, declare their sexual orientation, gender identity and intersex status, and express their specific concerns about being detained in PNG. This ignores the lived experience of LGBTI people seeking asylum, their often legitimate safety concerns in disclosing their status especially in close proximity to other people seeking asylum who may be unaware and/or not accepting of them, and the fact that for many people seeking asylum it takes months or even years for them to disclose anti-LGBTI persecution as the basis of their refugee claim. It also presumes that they are aware of the current criminal laws of Papua New Guinea, something of which even the Secretary of the Department of Immigration and Border Security was ignorant.

The letter also repeats previous ‘assurances’ that there is no mandatory reporting obligation in relation to homosexual activity in the Manus Island detention facility. However, this avoids the real problem – the criminal laws of PNG do apply to LGBTI people seeking asylum and refugees on Manus Island, and homosexual conduct can be reported to PNG police. The mere threat of such referral is sufficient to cause real fear among LGBTI people in this situation, alongside legitimate safety concerns (after all, it is difficult to report anti-LGBTI violence to police when the same authorities can prosecute you for simply being who you are).

Overall, then, there is nothing in the response from the Department of Immigration and Border Protection to suggest that the situation for LGBTI people seeking asylum detained on Manus Island will improve anytime soon. Shamefully, the human rights abuse of LGBTI people put there by the Australian Government will continue for the foreseeable future. Which means that our responsibility to stand up for them, and campaign for change, must continue too.

Original Post:

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

Tuesday 25 October 2016

Dear Prime Minister Turnbull

LGBTI Refugees and People Seeking Asylum

I am writing to you about a subject that is incredibly important, but one that does not often attract significant attention – from the media, from the public and, above all, from the Australian Government.

That subject is the mistreatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) refugees, and people seeking asylum, including the decision by successive Australian Governments to detain, process and even seek to resettle these people in countries that criminalise homosexuality.

I believe that this approach, exposing people who have sought Australia’s protection to persecution and prosecution in other countries, simply because of who they are, is a fundamental breach of human rights.

I have expressed concerns about this mistreatment from the very beginning of Australia’s current offshore processing regime. Within one month of the passage of legislation authorising the removal of people seeking asylum who arrived in Australia by boat to Nauru and Manus Is, Papua New Guinea (PNG) in August 2012, I wrote to both then Immigration Minister Chris Bowen, and then Shadow Immigration Minister – and now Treasurer – Scott Morrison.

In that letter I asked: “Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?

“Are you aware that homosexuality is current illegal in all three countries[i] to which the Australian Government currently intends to send asylum seekers? [And] Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government?”

It took nine months to obtain a reply, not from Minister Bowen, nor from his successor (Brendan O’Connor), but instead from the Department of Immigration. But the reply I did receive was incredibly disappointing.

Not only did it fail to answer whether LGBTI people transferred to Nauru and PNG could be subject to criminal prosecution, it then indicated that, in order to avoid the risk of mistreatment on the basis of sexual orientation, gender identity or intersex status in those countries, people seeking asylum needed to raise those concerns in the extremely short ‘window period’ prior to transfer[ii].

It seems the Australian Government was completely uninterested in LGBTI people transferred to Nauru and PNG if they only disclosed their sexual orientation, gender identity or intersex status after being transferred.

Someone else who was uninterested in this subject was Shadow Immigration Minister Scott Morrison, who never even bothered to reply to my correspondence.

Undeterred, following the change of Government in September 2013 and with Mr Morrison assuming the role of Minister for Immigration and Border Protection, I wrote to him again in February 2014.

In that letter I repeated my concerns about the mistreatment of LGBTI refugees and people seeking asylum transferred to Manus Island and included reference to the Amnesty International Report This is Breaking People, which had found that:

“Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there [and]
Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police…”

I then included a personal challenge to Mr Morrison: “If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.”

This time around, it only took the Department of Immigration and Border Security five and a half months to respond to my concerns[iii]. Their underwhelming response included the following statement:

“The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

“If homosexual activity should occur in the [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted service providers to report such activity to the PNG Government or police.”

In short, the then Australian Government – of which you were a senior Minister – rejected the claim that there was mandatory reporting of ‘homosexual activity’ to PNG police, but explicitly did not deny that the laws of that country, outlawing sex between men, applied to the refugees and people seeking asylum that we, as a country, had placed there.

In March of this year, I raised the issue of the mistreatment of LGBTI refugees and people seeking asylum again, this time through a submission to the Senate Legal and Constitutional Affairs Committee inquiry into conditions and treatment of asylum seekers and refugees in Nauru and PNG.

Unfortunately, that Senate inquiry lapsed due to your calling of a double dissolution election but, before Parliament was dissolved, the Committee issued an interim report, including the following paragraph:

“1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru[iv] and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries…”

Thankfully, post-election the Senate has decided to initiate a new inquiry looking at the issue of abuse, self-harm and neglect of asylum seekers in Nauru and PNG, and its investigation is ongoing.

On a more negative note, however, it is unclear how the Government will respond to any findings from such an inquiry, given Liberal and National Party Senators recommended, in the interim report, that “examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

Coincidentally, it is Senate Estimates that leads me to write to you, in your role as Prime Minister, today.

Last Monday, 17 October 2016, during the Legal and Constitutional Affairs Committee’s Senate Estimates Hearing of the Department of Immigration and Border Protection, there was an extraordinary exchange between WA Labor Senator Louise Pratt, and Departmental Secretary Mr Michael Pezzullo.

And by extraordinary, I mean extraordinarily dismissive of the legitimate concerns of Senator Pratt, and others including myself, about the mistreatment of gay, bisexual and same-sex attracted refugees and people seeking asylum placed on Manus Island by successive Australians Governments.

I have included the full text of this exchange as an Attachment with this letter[v]. I strongly encourage you to read it. If you do, you will see how little priority has been given to this issue, including by the Department of Immigration and Border Protection under the Prime Ministerships of your predecessors and now of course under you.

First, it was surprising to witness, via the following exchange, Mr Pezzullo appear not to know that male homosexuality is criminalised under PNG law:

“Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not. Senator.

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG.”

Given, as we have seen above, I have raised this issue with successive Ministers for Immigration, and received multiple responses from the Department of which he is now the head, not to mention the ongoing advocacy on this subject by organisations like the Human Rights Law Centre, Amnesty International, Kaleidoscope Human Rights Foundation and NSW Gay & Lesbian Rights Lobby, it is alarming to hear the Secretary’s lack of knowledge about the risk of prosecution for LGBTI[vi] people detained and processed on Manus Island.

Second, and less surprisingly but even more worryingly, was the distinct lack of concern on display by Mr Pezzullo, with the implication that the mistreatment of LGBTI refugees and people seeking asylum was not something that had crossed his desk, or that he had actively turned his mind to, in his two years as Secretary:

“Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer.” [And later]

“Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.”

Third, and perhaps least surprising – but most worrying – of all, was the position stated by Mr Pezzullo, at multiple points, that the Australian Government has no responsibility towards LGBTI refugees and people seeking asylum that it has sent to Manus Island after they have been transferred. For example:

“Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 2 1⁄2 years; the Australian government acquitted its nonrefoulement obligations over 2 1⁄2 years ago, at a minimum—“ [And later]

“Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.”

In effect, Mr Pezzullo was arguing, on behalf of the Australian Government – your Government – that, once Australia had transferred refugees and people seeking asylum to Manus Island, and unless those LGBTI refugees had explicitly raised concerns in the hours or at most days between their arrival by boat and their transfer, Australia had no ongoing responsibility towards them.

Now, Mr Pezzullo may or may not be correct from a legal viewpoint. I am sure there are human rights advocates, and potentially courts and tribunals both in Australia and in Papua New Guinea, who might take a different view.

But he is definitely wrong in every other respect. Australia, and the Australian Government, absolutely has a responsibility towards LGBTI refugees that, through its actions, it has caused to be sent to Manus Island for detention, processing and even resettlement.

It has a moral obligation. An ethical obligation. A social obligation. A human obligation.

These are people who sought the protection of the Australian Government, which then chose to send them to countries where, far from being safe from persecution, they were – and still are – at risk of criminal prosecution simply because of who they are.

I cannot see how anyone could possibly assert that the successive Australian Governments, and Prime Ministers, who have created this situation and exposed these people to potential harm, do not have a responsibility towards them.

And obviously that means that your Government, and now you as Prime Minister, also have a moral, ethical, social and above all human responsibility to do something about it.

The question I have for you is: will you?

Will you take action to remove LGBTI refugees and people seeking asylum from Manus Island, where they were placed by the Australian Government and where they are still subject to criminalisation?

Prime Minister, you are a Member of Parliament representing one of the ‘gayest’ electorates in Australia, with literally thousands, if not tens of thousands, of LGBTI people living in the seat of Wentworth.

You claim to support the equality of LGBTI people, both legally and socially. Earlier this year, you even became the first sitting Prime Minister to attend Australia’s largest ‘Pride’ event, the Sydney Gay & Lesbian Mardi Gras Parade.

That night, you joined in celebrating the hard-fought and hard-won freedom, and increasing equality[vii] and acceptance, of Australia’s LGBTI community, surrounded by tens of thousands of lesbian, gay, bisexual, transgender and intersex people, as well as their families and friends.

That very same night, and for hundreds of nights beforehand and every night since, just 3,500km to the North, a much smaller number of gay, bisexual and same-sex attracted refugees had far less reason to celebrate: certainly not freedom, and instead of equality and acceptance, a fear of prosecution and persecution by a Government that considers them criminals.

And the only difference between these two groups – between the ‘loud and proud’ crowd on Oxford St, and the isolated and vulnerable individuals on Manus – is where they were born.

The actions of successive Australian Governments have put the latter group where they are, directly in harm’s way. As the Prime Minister since September 2015, and leader of the current Liberal-National Government, you now keep them there.

You might have celebrated ‘pride’ with Australia’s LGBTI community almost 8 months ago, but contributing to the detention, processing and resettlement of LGBTI refugees in countries that criminalise them is nothing to be proud of.

And I think, deep down, you understand that. In which case, it is up to you to do something that you, your Government and the country you lead can be proud of:

Bring. Them. Here.

Your predecessors negotiated with the PNG Government for Manus Island to become the site of the ‘Regional Processing Centre’. You have the power to negotiate with the PNG Government to close that same centre and bring the refugees and people seeking asylum there back to Australia.

In fact, after the PNG Supreme Court earlier this year ruled that the detention of refugees and people seeking asylum on Manus Island was illegal, and in breach of the PNG Constitution’s right to personal liberty[viii], I suspect their Government would welcome such a move.

Bring them here and end the frankly horrific situation whereby LGBTI people who have fled persecution in other parts of the world, including those fleeing persecution on the grounds of sexual orientation, gender identity or intersex status, have been deliberately left in a place where they are subject to criminal laws on the basis of those same attributes.

Successive Australian Governments put them there. You, as Prime Minister, and leader of the current Government, can get them out. Do something that makes us all proud. Please, Prime Minister Turnbull, bring them here.

Sincerely,

Alastair Lawrie

Prime Minister Malcolm Turnbull, celebrating ‘pride’ at the 2016 Sydney Gay & Lesbian Mardi Gras Parade. Not pictured: The gay, bisexual and same-sex attracted refugees and people seeking asylum detained on Manus Island, PNG.

**********

Attachment A

Senate Estimates Monday 17 October 2016

Legal and Constitutional Affairs Committee Hearing re Department of Immigration and Border Protection

Senator PRATT: I would like to know how many men on Manus have been given positive refugee status determinations on the basis of their sexuality.

Mr Pezzullo: Their claim of persecution relates to sexuality?

Senator PRATT: That is right.

Mr Pezzullo: I will ask Ms Noble or other officers to join me, but I am not sure that we would immediately have that data to hand, because we do not do the refugee status determination. Unless Ms Moy can answer the question directly, we will take it on notice.

Senator PRATT: You would agree that some would have had to have been found as refugees, basically?

Mr Pezzullo: Possibly. I do not know.

Ms Moy: The RSD process in Papua New Guinea is run by ICSA. We are not privy to the information of each claim. We would need to go to Papua New Guinea and ask them that question. So we would need to take it on notice.

Senator PRATT: But that is a difficult thing, given that homosexuality is actually illegal in PNG. They are having to make these disclosures to the PNG government, in which case they may even have a well-founded fear of persecution from within PNG. Is that not correct?

Mr Pezzullo: We will have to take on notice how the PNG authorities have dealt with the assessment of claims pursuant to both their international legal obligations and the operation of their domestic law.

Senator PRATT: Well, homosexuality is a criminal offence there. It is illegal.

Mr Pezzullo: I understand the point you are making. What I am saying is that how the PNG authorities have assessed those claims is a matter that would not be readily known to Ms Moy and myself.

Senator PRATT: What is the government’s advice to those men who are currently on Manus who are refugees because they are gay and who are about to be resettled in PNG?

Mr Pezzullo: Which government’s advice? The advice of the Australian government?

Senator PRATT: Yes.

CHAIR: Well, that is not a question for you, Mr Pezzullo. You are not here to give advice to people in detention in another country.

Senator PRATT: Australia has a responsibility in this regard, because we are not supposed to engage in these activities in offshore processing as a way of in a sense refoulement of the refugee process, because people might be subject to further persecution.

Mr Pezzullo: The historical basis of the transfers—noting that there has not been a transfer into regional processing for some 21⁄2 years; the Australian government acquitted its nonrefoulement obligations over 21⁄2 years ago, at a minimum—

Senator PRATT: In that context, how is the issue of people’s sexual identity and the illegality of that in PNG being addressed within that?

Mr Pezzullo: You will need to ask the PNG government. I do not know, is the answer. Australia, through two agreements, two heads of agreement—one initiated under the Gillard government and one under the Rudd government and then consolidated under subsequent governments—entered into agreements to transfer persons who arrived here by illegal maritime means into the jurisdictions of either Nauru or PNG, two separate transfers. At that point our nonrefoulement obligations had to be addressed and acquitted, and they were. There is no ongoing—

Senator PRATT: In what manner were issues of sexuality addressed within that agreement? Or were they not?

Mr Pezzullo: You cannot refoule persons back to the country of origin where they have raised claims of persecution. There were no claims of persecution against the states or the regimes of Nauru and PNG.

Senator PRATT: I understand that that is about returning people to their country of origin. But in effect we have taken them to a country where they could be subject to exactly the same form of persecution, where they are supposed to be having their claim for asylum processed.

Mr Pezzullo: Well, you speculate that. When you say we have ‘taken them to a country’—we cannot simply drop people off. We entered into intergovernmental agreements, to transfer persons from the Australian migration jurisdiction to other migration jurisdictions. At that point, the last of which occurred 21⁄2 years ago, because there have been no transfers since, all of Australia’s obligations in that regard were discharged.

Senator PRATT: In other words, the Australian government has no responsibility to those gay men who are currently detained on Manus in terms of whether their human rights in relation to their sexuality will be upheld in PNG or not.

Mr Pezzullo: I understand the question you are asking. You say that the Australian government has no responsibility in that circumstance, but the Australian government—a number of governments, actually, that straddle several parliamentary terms—discharged all of its legal undertakings at the time of the transfer, yes.

Senator PRATT: So it has no further responsibility to the human rights of those men?

Mr Pezzullo: Not pursuant to—Australia observes its human rights, diplomacy and policy objectives in all manner of ways that the foreign minister and her officers discharge. But in terms of ensuring that through the transfer mechanisms that were agreed in 2012 and 2013 we did not refoule persons who had come into our jurisdiction we acquitted those obligations at that time.

Senator PRATT: But we have a contract with the PNG government that—

Mr Pezzullo: We have an agreement, yes.

Senator PRATT: We have an agreement for which the PNG government is paid, and within that agreement there are men whose original claim for protection was based on their homosexual identity. Their claims are being processed in a country in which homosexuality is illegal.

Mr Pezzullo: Senator, you state, as an assertion—in what I think is a question—that their original claims were founded on sexuality.

Senator PRATT: They may or may not have been.

Mr Pezzullo: Thank you.

Senator PRATT: The question is that people who are homosexual and who are currently detained or being processed on Manus—their homosexuality may or may not have been part of their original claim—are being processed in a country in which homosexuality is illegal and they are being forced to be there.

Mr Pezzullo: Which might mean, in the circumstances that you describe—and this is a matter for the government of Papua New Guinea—that the government of Papua New Guinea is not able to resettle those gentlemen within their domestic jurisdiction. In that case, the government of PNG will need to enter into arrangements with so-called third country resettlement options where that clash with domestic law—or that contradiction with domestic law, if I can characterise it in those terms—is not applicable.

Senator PRATT: And in the meantime, no homosexual conduct is allowed.

Mr Pezzullo: I do not know whether it is allowed or not. Senator

PRATT: Well, it is illegal.

Mr Pezzullo: I am not an expert on those laws in the domestic jurisdiction of PNG. I understand the point of the question you are asking. What I am saying is: those persons—the single adult men who are on Manus—are in the legal jurisdiction of the government of Papua New Guinea. They have both international obligations that pertain to the 1951 Refugee Convention, which include non-refoulement, and other complementary protections that attach to various other covenants that that government has entered into. Then they have domestic laws which, as I understand from reporting, can be characterised in the way that you have described. It is now a matter for the government of Papua New Guinea to resolve: how do you settle a person who you know to have a well-founded fear of persecution—across a range of matters, one of which might be related to sexuality—within your domestic jurisdiction? I do not know—Ms Moy might be able to assist me—if we have been asked for technical assistance in terms of how to perhaps assist with the country options. I just do not know.

Ms Moy: Not at this stage.

Senator PRATT: Or homosexual law reform in PNG perhaps?

Mr Pezzullo: Well, that is not something that my department has any role in.

CHAIR: Nor has the Australian government.

Mr Pezzullo: We have enough on our plate. I do not mean to belittle the point, but the pursuit of law reform around same-sex attraction in foreign jurisdictions is not on my to-do list.

Senator PRATT: I think I have exhausted that. Clearly the government has no further responsibility.

**********

Footnotes:

[i] At the time the Australian Government continued to advocate the transfer of refugees and people seeking asylum to Malaysia, in addition to Nauru and PNG.

[ii] From the response: “Pre-Transfer Assessment is undertaken prior to a person’s transfer to a [Regional Processing Country] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of is power under section 198AE of the Migration Act 1958 to exempt that person rom transfer.”

[iii] The response is included with the original letter, here.

[iv] Since the time of my submission to that inquiry, and in very welcome news, Nauru has finally decriminalised male homosexuality.

[v] The original transcript for this hearing can be found on pages 132-134 here.

[vi] I note that only ‘male’ refugees have been transferred to Manus Island, in which case the majority of people affected by these laws will be gay, bisexual and same-sex attracted ‘men’. However, for consistency with previous letters (to Ministers Bowen and Morrison) that also dealt with Nauru (to which women and children have been sent) the term LGBTI will continue to be used throughout this post.

[vii] Although obviously still not full equality, not just on the issue of marriage, but also in relation to trans birth certificates, non-consensual surgeries on intersex infants and extensive religious exceptions to anti-discrimination laws, among other issues.

[viii] ABC News, PNG’s Supreme Court rules detention of asylum seekers on Manus Island is illegal, 27 April 2016.

Submission to Senate Inquiry into Treatment of Asylum Seekers on Nauru & Manus Island

Posted on April 27, 2016 by Alastair Lawrie

UPDATE: 5 June 2016

The Senate Legal and Constitutional Affairs References Committee, chaired by Senator Glenn Lazarus, was unable to complete its inquiry into the treatment of people seeking asylum on Nauru and Manus Island before Malcolm Turnbull announced the election on 8 May.

However, they did release an Interim Report based on the submissions it had already received, which can be found here.

A range of disturbing matters are raised in this Report, including submissions to the effect that, in just a 13-month period (June 2014 to July 2015), the Department of Immigration and Border Protection recorded:

“134 incidents of actual self-harm, many amounting to attempted suicide and including some by children
75 instances of the use of force against asylum seekers, by other asylum seekers and by [Regional Processing Centre] staff
26 ‘major disturbances’ of various kinds, all serious in nature and posing risks to the safety of asylum seekers and staff
34 instances of serious assault requiring medical treatment [and]
16 serious accidents of injuries and 23 public health risks.”

I encourage you to read the short report to see at least a little of what is being done by our Government to people who deserve its protection, not abuse.

The Committee also recognised the particular issues confronting LGBTI people seeking asylum being detained, processed and resettled in Nauru and Papua New Guinea, including the following extended section on pages 12 and 13:

“LGBTI asylum seekers

1.57 The committee received some evidence focused on the situation of lesbian, gay, bisexual, transgender and intersex (LGBTI) people held in the [Regional Processing Centres]. Mr Alastair Lawrie noted that male homosexual conduct remained a criminal offence in both Nauru and PNG, and expressed the view that ‘the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.’ Mr Lawrie cited reports of abuse, assault and marginalisation of homosexual asylum seekers in the [Regional Processing Centres], and the lack of appropriate health and community services in the two countries. [Australian Lawyers for Human Rights] shared these concerns, citing Amnesty International’s reporting about gay refugees and resettlement in PNG.

1.58 The NSW Gay & Lesbian Rights Lobby highlighted that ‘LGBTI refugees are some of the most vulnerable individuals held in detention around the world’, and submitted that they were subject to ‘severe discrimination’ in the [Regional Processing Centres] and their host countries, as well as in refugee status determination processes.

1.59 Mr Lawrie argued that LGBTI asylum seekers (whether or not their claims for refugee status were based on their sexuality) should be housed and processed in Australia. The NSW Gay & Lesbian Rights Lobby agreed, and also offered a number of recommendations for specific training and education of relevant officials and service providers, as well as improved services, to better address the specific needs and vulnerabilities of LGBTI asylum-seekers.”

Given their inability to complete the inquiry, the Committee made only one recommendation: “The committee recommends that, should it be unable to complete its inquiry prior to the 2016 national election, the Senate should refer this matter for committee consideration, in similar terms as appropriate, in the 45^th Parliament.”

However, even that recommendation, to essentially resume the Inquiry after the July 2 poll, was a bridge too far for Liberal and National Party Senators on the Committee who, disappointingly, “instead recommended[ed] that examination of Australia’s border protection activities be referred to the more reliable and cost-effective forum of Senate Estimates.”

As a result, it is unclear whether this issue will receive sufficient parliamentary scrutiny in the next term.

There is, nevertheless, one positive development that has occurred since the Committee handed down its Interim Report – on 27 May the Government of Nauru announced that it had decriminalised homosexuality.

In its media release “Nauru Government updates Criminal Code”, they announced passage of “the Crimes Act 2016 [which] replaces the hundred year old Nauruan Criminal Code 1899 which was drawn from the Queensland Criminal Code.”

In doing so, they confirmed the influence of international human rights advocacy:

“The Government of Nauru continues to show progressive leadership and in keeping with its legislative agenda, has passed a new number of laws including the decriminalising of homosexuality and suicide.

“In complying with its international obligations under various international treaties, The Nauru Parliament has had laws drafted to be consistent with appropriate international standards.”

Of course, the passage of this law, while welcome, will not necessarily do much to prevent ongoing reports of abuse as highlighted in the Committee’s Interim Report, but it is at least a small step forward, not just for LGBTI people seeking asylum being detained on Nauru, but for the LGBTI people of Nauru too.

ORIGINAL POST:

The Senate Legal and Constitutional Affairs Committee is currently conducting an Inquiry into the Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea. My submission to this inquiry has now been published by the Committee and is reproduced below.

More details about the Inquiry, and other submissions, can be found here.

Committee Secretary

Senate Legal and Constitutional Affairs Committee

PO Box 6100

Parliament House

Canberra ACT 2600

legcon.sen@aph.gov.au

Thursday 31 March 2016

To whom it may concern

Submission to Senate Inquiry into Conditions and Treatment of Asylum Seekers and Refugees in Nauru and PNG

Thank you for the opportunity to provide a submission to the Senate Legal and Constitutional Affairs Committee Inquiry into Conditions and Treatment of Asylum Seekers and Refugees at the Regional Processing Centres in the Republic of Nauru and Papua New Guinea (‘the Inquiry’).

From the outset, I wish to express my opposition to the policies adopted by both the current Liberal-National Government, and the previous Labor Government, which detain (sometimes indefinitely), process and in some cases resettle people seeking asylum in Nauru and Papua New Guinea (PNG).

I believe that the actions of successive Australian Governments are in breach not just of international human rights law, but also fall far short of basic standards of human decency, denying the opportunity of a better life to people fleeing persecution in other countries.

However, while I oppose the overall detention, processing and resettlement of all people seeking asylum in Nauru and PNG, in this submission I will focus on one group of people for whom these policies cause particular problems: lesbian, gay, bisexual, transgender and intersex (LGBTI) people.

It is my view that the Australian Government inflicts serious harm on LGBTI people seeking asylum by detaining, processing and resettling them in countries that continue to criminalise homosexuality.

Before I address this issue in more detail, I would like to clarify that here I am not simply referring to people who claim asylum based on persecution because of their sexual orientation, gender identity or intersex status in other countries, but also include people who seek asylum on the basis of persecution of another attribute (such as race, religion or political views) and who are LGBTI. Both groups are negatively affected by the Australian Government’s current approach.

In this submission, examining the treatment of LGBTI people seeking asylum, I will primarily focus on two of the Inquiry’s six criteria:

a) conditions and treatment of asylum seekers and refugees at the regional processing centres in the Republic of Nauru and Papua New Guinea;

d) the extent to which the Australian-funded regional processing centres in the Republic of Nauru and Papua New Guinea are operating in compliance with Australian and international legal obligations.

**********

Sending LGBTI people seeking asylum to countries that criminalise homosexuality is itself a human rights abuse, and one that exposes those people to other forms of abuse and mistreatment

The Australian Government currently detains people seeking asylum in two countries outside of Australia: Nauru and PNG.

In both countries, male homosexuality remains criminalised. In both places, the maximum penalty is set at 14 years imprisonment. And in both, the origins of their current laws can be traced back to British, and subsequently Australian, imperial rule.

Nauru has two main criminal offences under its Criminal Code (which, I understand, are based on Queensland’s 1899 Criminal Code) that are relevant to this discussion:

“Section 208 Unnatural Offences

Any person who:

(1) Has carnal knowledge of any person against the order of nature; or

(2) Has carnal knowledge of an animal; or

(3) Permits a male person to have carnal knowledge of him or her against the order of nature;

is guilty of a crime, and is liable to imprisonment with hard labour for fourteen years[i]” and

“Section 211 Indecent Practices between Males

Any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him, or attempts to procure the commission of any such act by any male person with himself or with another male person, whether in public or private, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.”

Despite comments in recent years by the Government of Nauru that suggested homosexuality could be decriminalise there, these offences remain in place today.

Papua New Guinea also has two main offences under its Criminal Code that are relevant (and the offences, and even the language used, again appear to be based on Queensland’s since repealed criminal provisions):

“Section 210. Unnatural Offences.

(1) A person who-

(a) sexually penetrates any person against the order of nature; or

(b) sexually penetrates an animal; or

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) A person who attempts to commit and offences against Subsection (1) is guilty of a crime.

Penalty: imprisonment for a term not exceeding seven years” and

“Section 212. Indecent Practices Between Males.

(1) A male person who, whether in public or private-

(a) commits an act of gross indecency with another male person; or

(b) procures another male person to commit an act of gross indecency with him; or

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

Unlike Nauru, there does not even appear to be any prospect of the PNG offences being repealed in the short or medium-term future.

Thus, prime facie, it appears that any members of the LGBTI community who engage in what could be described as male-male sexual activity – which would include gay men, bisexual men, some trans people (including because of mis-gendering by authorities) and some intersex people – would be committing criminal offences if they are sent to Nauru or PNG.

The criminalisation of male homosexuality in both PNG and Nauru stands in stark contrast with the situation in Australia, where all states and territories have decriminalised sexual activity between men (with Tasmania the last state to do so, in 1997).

If LGBTI people seeking asylum were instead allowed to have their claims processed on Australian soil, they would not need to fear being prosecuted simply because of who they are.

The legal situation in Australia is also relevant in establishing that the criminalisation of homosexual sexual activity in both Nauru and PNG is a contravention of international human rights law. It does so in two ways:

(i) The first United Nations Human Rights Committee (UNHRC) decision to find that laws criminalising male homosexuality were a violation of the ‘right to privacy’ in article 17 of the International Covenant on Civil and Political Rights (ICCPR)[ii] involved an Australian complainant. The case of Toonen v Australia[iii] – which considered a complaint against the ‘sodomy’ laws of Tasmania – was ground-breaking when it was handed down in early 1994, and remains relevant around the world today[iv] (as we shall see below).

(ii) The Australian Government, and Parliament, then confirmed that the international human right to privacy included consensual sexual activity between adults through the passage of the Human Rights (Sexual Conduct) Act 1994. Specifically, subsection 4(1) provided that: “[s]exual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.”

And yet, despite a 1994 decision of the UNHRC finding that the international human right to privacy should include the right to consensual sexual activity between adults, and despite this being confirmed as a right by the Australian Parliament more than 20 years ago, successive Australian Governments have effectively determined that this right should not apply to LGBTI people seeking asylum who seek protection from Australia.

Instead, successive Australian Governments have detained, processed and, in some case, resettled LGBTI people seeking asylum in countries that continue to criminalise male homosexual activity, exposing them to what I would argue are human rights violations under both Australian and international law.

There has previously been a suggestion that the criminal laws of Nauru and PNG, and especially those laws that prohibit homosexual sexual activity, might not apply to people seeking asylum who are being detained in either or both of those places.

However, I have raised this issue directly with respective Immigration Ministers under both the previous Labor and current Liberal-National Governments, and neither has explicitly ruled out the application of these criminal laws.

In September 2012, I asked then Immigration Minister the Hon Chris Bowen MP:

“Are you aware that homosexuality is currently illegal in all three countries [at the time, they also sought to send people seeking asylum to Malaysia] to which the Australian Government currently intends to send asylum seekers?” and

“Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian Government?”[v]

The response from the Department of Immigration and Citizenship, received in June 2013 (see Appendix A), refused to answer these questions – and therefore refused the opportunity to deny that the offences would indeed apply.

I wrote to the new Minister for Immigration the Hon Scott Morrison MP in February 2014, raising the same issues, this time specifically in relation to Manus Island, following the release of the Amnesty International Report This is Breaking People.[vi] In this letter, I included the following statement, something that I continue to firmly believe today:

“If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that section 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.”[vii]

The response to that letter, again from the Department rather than the Minister, and received in February 2014 (see Appendix B), did nothing to allay concerns that the criminal laws applied to LGBTI people seeking asylum held on Manus Island:

“If homosexual activity should occur in the OPC [Offshore Processing Centre], there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.”

There is a lot to absorb from those short paragraphs and indeed from the letter as a whole (and I will attempt to address these issues in turn).

However, one thing that does not appear anywhere in this correspondence is a denial that the criminal laws of PNG apply to LGBTI people seeking asylum and refugees on Manus Island, irrespective of whether they are awaiting assessment or have had their applications approved and are living in the community.

Thus, on the basis of both letters, it can safely be asserted that the laws that criminalise homosexuality in PNG, and Nauru, apply to LGBTI people seeking asylum detained in both places by the Australian Government.

Looking at the specific claims in the February 2014 letter in more detail, we must remember that it does not actually matter whether the criminal laws of either PNG or Nauru have been the subject of prosecution in recent years. As the United Nations Human Rights Committee decided in the 1994 Toonen case:

“The Committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code “interfere” with the author’s privacy, even if those provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future… The continued existence of the challenged provisions therefore continuously and directly “interferes” with the author’s privacy.”

In this light, the continued existence of the laws of Nauru and PNG criminalising male homosexuality is sufficient to constitute a human rights abuse of any person who is included by their scope, irrespective of whether the laws are actively being enforced or not.

The February 2014 letter actually highlights this potential abuse, even as it attempts to reject a claim made in the This is Breaking People report, namely that staff on Manus Island had a legal requirement to report homosexual activity to PNG police.

The letter itself only states that “there is no mandatory obligation under PNG domestic law”, not that such behaviour could not and would not ever be reported to the PNG Government or police – thus reinforcing the potential threat to LGBTI people seeking asylum.

The threat of criminal prosecution under PNG law has even been directly brought to the attention of people seeking asylum being detained on Manus Island. From The Guardian in September 2014[viii]:

“Guardian Australia has obtained a copy of an orientation presentation shown to asylum seekers on Manus after they arrived on the island. It was prepared by the Salvation Army and shows a picture of two men kissing with a large red cross through it.

“The delivery notes attached to the presentation warn; “Homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts.”

A spokesman for the Salvation Army confirmed the slides were used in the presentation to asylum seekers and said they formed part of a “broader education program about life in PNG.””

The slide from the Salvation Army presentation that was shown to people seeking asylum after their arrival on Manus Island (source: Guardian Australia).

Given this context, and applying the precedent of Toonen decision above, it is undeniable that the treatment of LGBTI people seeking asylum by the Australian Government is in clear breach of international human rights law.

This breach also directly causes other serious harms to these people seeking asylum. This includes increased discrimination against, and ostracising of, LGBTI people by other people seeking asylum in these detention centres.

As has been highlighted by multiple reports, including Amnesty International’s This is Breaking People, work by Human Rights Watch[ix], and the previously quoted article in The Guardian, the threat of criminalisation means LGBTI people who have been the victim of mistreatment in the detention centres – whether by other people seeking asylum or even detention centre employees – are far less likely to bring such mistreatment to the attention of relevant authorities.

Distressingly, these reports include multiple allegations that gay and bisexual men seeking asylum have been subject to sexual assaults inside detention centres but, due to the threat of the criminal laws being imposed on them for their homosexuality, have chosen not to make official complaints about these assaults.

That seems like an inevitable outcome of the offshore detention centre system created by successive Australian Governments, and yet it is no less abhorrent for this inevitability.

This abhorrent situation is reflected in the quotes of gay asylum seekers in both The Guardian article and Human Rights Watch report. From Human Rights Watch:

“A gay asylum seeker said, “I have not come to stay in Manus, a country where it’s possible [for a gay man] to be jailed for 14 years. If I wanted to live like this I would have stayed in Iran and gone to prison, been released, and then sent to prison again.”

“Another said, “Everyone leaves me. No one considers me a friend. Those few men who do are only with me because they want to take advantage of me sexually. They become my friends and after they use me they leave. And make fun of me. It’s very hard here.””[x]

And from The Guardian article[xi]:

“Author Karim writes:

“In this camp I suffer a lot. For example about four month ago I had to protect myself from a vicious man who tried to rape me, I lodged a complaint against the man, but I’ve got no reply yet.

“Life in the camp became harder because after that incident everyone stopped talking to me, I am completely alone, they are bullying and humiliating me at all time.

“I asked the psychologists to help me, but I’ve been ignored.”

“[Another author] Ahmed continues:

“I have to hide my sexuality because in this country, like Iran, there are a lot of people – fanatics – whom if they find out anyone is gay they would harass them and maybe even try to kill them.

“I have to hide my personality once again. I have to lie as someone else.

“It feels like this is a disease that is consuming me for all these years and society will never leave me alone. It feels like the universe doesn’t want you to live in the serenity of one moment, I don’t know what I have done to the universe, or what it has against me.

“I can’t live one moment without anxiety stress and sadness, it doesn’t let me live happily with anyone who I love or feel love, I don’t know what is my crime that I have to be punished so harshly.”

And from Omid (also in The Guardian article):

“I couldn’t return to Iran and be executed by the Iranian government. Hence living in PNG was not any better, because being gay is considered a crime in PNG as well, and the punishment for such crime is 14 years imprisonment.

“I am so sorry that I was born gay. I never meant to hurt you, mum.

“I wish our boat had sunk in the ocean and stopped me living the most painful year of my life.

“I thought Australia and its people would be my protector, but they taught me otherwise.”

These are the tragic lessons that we, as a country, are teaching LGBTI people seeking asylum by detaining, processing and resettling them in countries that criminalise homosexuality.

Another direct and very real consequence of the threat of criminalisation is the associated failure to provide proper sexual health education and services to LGBTI people seeking asylum.

Leaving aside the claims that people seeking asylum on Manus Island have been denied access to condoms (which the February 2014 letter rejected, but which is difficult to verify in the absence of independent monitoring), it is highly questionable whether appropriate and inclusive sexual health education is provided to all people seeking asylum who are held, including lesbian, gay, bisexual, transgender and intersex people.

But it is beyond doubt that LGBTI people seeking asylum are forced to exercise extreme caution when attempting to access sexual health services given doing so may expose them to criminal sanction. Criminalisation in this context, as in many other areas, directly jeopardises public health outcomes, and specifically increases the risks of HIV transmission.

Indeed, as the United Nations Human Rights Committee wrote more than two decades ago in relation to Toonen:

“The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalisation of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Second, the Committee notes that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of the HIV/AIDS virus.”

Thus, in addition to breaching the human rights of LGBTI people seeking asylum under international and Australian law by detaining them in countries that criminalise homosexuality, the Australian Government is also increasing the risks of those same people seeking asylum contracting a virus that, while manageable with access to appropriate care and treatment, nevertheless still killed 1.5 million people worldwide in 2013 alone[xii].

Before concluding this submission, I would like to make two final observations.

First, the Committee will note that throughout I have referred to lesbian, gay, bisexual, transgender and intersex people seeking asylum. I have done so even while I acknowledge that for some members of this community – including lesbians, bisexual women and some transgender and some intersex people – the criminal laws against male homosexual activity in both Nauru and PNG will not technically apply.

Nevertheless, I believe that the unsafe situation created by these laws does apply to all LGBTI people seeking asylum who are detained there. By retaining laws against male homosexuality, both Governments effectively encourage discrimination across all of these population groups.

The consequence of this is that even for lesbians, bisexual women and those transgender and intersex people, they remain at increased risk of harassment and abuse (by both other people seeking asylum and detention centre employees), and sexual assault, as well as being denied access to appropriate and inclusive sexual health education and related services.

Second, I note that in both the June 2013 and February 2014 letters the Labor and Liberal-National Governments indicated that, were an LGBTI person seeking asylum to lodge an objection to being detained on either Nauru or PNG because of their laws against homosexuality, there is some possibility that they may not be sent to either place.

From the June 2013 letter:

“Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC [Regional Processing Centre] to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

“Where a person raises concerns against a designated RPC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments[xiii], to assess if those charges are credible. If the person makes credible claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.”

From the February 2014 letter:

“Any claims made against Nauru and PNG by an IMA [Illegal Maritime Arrival][xiv], including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration of exemption from transfer.”

While this process may appear to offer a small glimmer of hope to an even smaller number of LGBTI people seeking asylum, there are significant problems with any process that requires people to raise these concerns before being sent to either Nauru or Manus Island.

Imposing this requirement presupposes that the LGBTI person seeking asylum involved is aware that they are likely to be sent to one of these two countries, and that they also have knowledge of the criminal laws in both potentially applying to them.

It also requires them to be aware of the process involved in making such a claim (which is highly unlikely, especially in the absence of legal representation), and that they have the ability to raise it, with an appropriate Government representative, in the increasingly short period of time between detention by the Australian Government and transfer.

And it forces an LGBTI person seeking asylum to make this claim in an environment where they may be travelling with family members and friends (to whom they may not be ‘out’), or other members of their community that may not be accepting of different sexual orientations, gender identities or intersex people.

Finally, the June 2013 letter itself acknowledges that there may be some delay between a person seeking asylum protection from the Australian Government, and them making a claim on the basis of their LGBTI status. From that letter:

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applicants may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision-makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Given this, it makes absolutely no sense to limit the ability of LGBTI people seeking asylum to make claims for protection against their detention on either Nauru or Manus Island, PNG to prior to their detention there – they should be able to make such a claim, and request transfer from these facilities (preferably to be processed in Australia), at any point.

**********

Overall, I believe that the actions of successive Australian Governments, in sending lesbian, gay, bisexual, transgender and intersex (LGBTI) people seeking asylum to Nauru and PNG, both countries that criminalise male homosexuality, is a fundamental breach of international human rights law.

This breach has flow-on consequences, by leading to increased harassment and abuse of LGBTI people seeking asylum, including by other people seeking asylum and by detention centre employees, and exposing them to sexual assault, as well as denying them access to appropriate and inclusive sexual health education and related services, increasing their risk of contracting HIV.

I submit that, instead of detaining, processing and resettling LGBTI people seeking asylum on Nauru and Manus Island, PNG, the Australian Government must instead ensure that the claims of these people are processed in Australia, where they are not criminalised and where they can be provided with access to appropriate support services.

Thank you for taking this submission into account as part of this Inquiry. If the Committee would like additional information about any of the above, or to clarify any part of this submission, please do not hesitate to contact me at the details provided.

Sincerely,

Alastair Lawrie

**********

Appendix A

Dear Mr Lawrie,

Thank you for your email of 7 September 2012 to the former Minister for Immigration and Citizenship, the Hon Chris Bowen MP, concerning the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers. Your letter has been referred to me for a reply. I apologise for the delay in responding.

The Australian Government’s commitment to removing discrimination was demonstrated by its reforms to remove discrimination from 85 Commonwealth laws. These reforms, which passed in 2009, removed discrimination and equalised treatment for same-sex couples in areas of taxation, social security, health, aged care, superannuation, immigration, child support and family law.

The Government is also proceeding with introducing long overdue protections against discrimination on the basis of sexual orientation, gender identity and intersex status. On 21 March 2013, the Attorney-General introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013. This Bill will ensure that protections from discrimination for people who are gay, lesbian, bisexual, transgender and intersex are put in place as soon as practicable.

Concerning the transfer of post-13 August 2012 irregular maritime arrivals (IMAs) to Regional Processing Countries (RPC) and the treatment of LGBTI asylum seekers, as a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugee Convention), Australia takes its international obligations seriously and is committed to providing protection to refugees consistent with the obligations set out in the Refugees Convention and other human rights treaties to which Australia is a party. Any person has the right to seek protection in Australia from persecution in their home country.

The Government has signed Memoranda of Understanding (MoU) with the Governments of Nauru and Papua New Guinea which permit people who arrived irregularly by boat on or after 13 August 2012 to be taken to Nauru or Papua New Guinea (Manus Island) for assessment of their claims against the Refugee Convention. Changes to the Migration Act 1958 (the Act) which give effect to regional processing arrangements were passed by the Australian Parliament and became law on 18 August 2012.

The MoU signed with Nauru and Papua new Guinea reaffirms the commitment of both countries to the Refugee Convention, with people transferred to the Regional Processing Country (RPC) to be treated with dignity and respect in line with human rights standards.

The Department of Immigration and Citizenship recognises that human rights abuses and gender-related persecution can also be experienced by people on the basis of their sexual orientation and/or gender identity. As such, an applicant’s gender-related claims may include claims relating to their
sexual orientation and/or gender identity.

In the guidelines set out in the Departmental Procedures Advice Manual 3 (PAM3), for the guidance of interviewing officers, they are advised that

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applications may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

Pre-Transfer Assessment is undertaken prior to a person’s transfer to an RPC to consider whether there are specific circumstances or special needs that mean it is not reasonably practicable to transfer an asylum seeker to an RPC at this time.

Where a person raises concerns against a designated RC, the Departmental officer refers to relevant country information, as well as the assurances received by Australia from the RPC governments, to assess if those charges are credible. If the person makes credible protection claims against all RPCs, the case is brought to the Minister’s attention in accordance with his guidelines for considering the exercise of his power under section 198AE of the Migration Act 1958 to exempt that person from transfer.

A copy of the Minister’s s198AE guidelines and the Pre-Transfer Assessment form and guidelines can be found at the Department’s website at: www.immi.gov.au/visas/humanitarian/whatsnew.htm

Also for your information, I attach a copy of the relevant sections of PAM3 regarding gender and sexual orientation. For a full interactive copy of that document you may need to contact your nearest public library which should be able to provide free access.

Thank you for writing about this matter and I apologise again for the delay in respond.

Yours sincerely

[Name withheld]

Director

Protection Policy Section

6 June 2013

**********

Appendix B

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for your letter of 2 February 2014 to the Hon Scott Morrison MP, Minister for Immigration and Border Protection, concerning the treatment of homosexual, bisexual, transgender and intersex asylum seekers. The Minister appreciates the time you have taken to bring these matters to his attention and has asked that I reply on his behalf. I regret the delay in responding.

As a party to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), Australia takes its international obligations seriously. Australia is committed to treating asylum seekers fairly and humanely, and providing protection to refugees consistent with the obligations set out in the Refugees Convention, and other relevant international treaties to which Australia is a party.

The Australian Government has taken a number of measures to deter people smuggling and to ensure that people do not take the dangerous journey to Australia in boats organised by people smugglers. Under Australian domestic law, all illegal maritime arrivals (IMAs) entering Australia by sea without a visa will be liable for transfer to Nauru and Papua New Guinea (PNG) where any asylum claims they may have will be assessed, and if found to be a refugee, they will be resettled in Nauru and PNG or in another country.

Any claims made against Nauru and PNG by an IMA, including claims concerning the treatment of homosexuals, bisexual, transgender and intersex asylum seekers in either country, are considered prior to transfer. Where an IMA makes such a claim, consideration is given to whether the IMA can be transferred to the proposed country, or an alternative country, or whether the IMA’s case should be referred to the Minister for consideration or exemption from transfer.

Nauru and PNG are also both parties to the Refugee Convention. The Memoranda of Understanding (MOU) they have signed with Australia on the offshore processing arrangements reaffirm their commitment to the Refugees Convention and to treating people transferred with dignity and respect in accordance with human rights standards.

The enforcement of PNG domestic law is a matter for the Government of PNG. The government is aware of laws relating to homosexual activity in PNG and understands that there have been no recent reports of prosecution under those laws.

If homosexual activity should occur in the OPC, there is no mandatory obligation under PNG domestic law for Australian officers or contracted services providers to report such activity to the PNG Government or police.

The department notes the release of the reports by both the United Nations High Commissioner for Refugees (UNHCR) and Amnesty International on the Manus OPC. Any reports received by the department will be reviewed, and observations or comments verified. Where reports make practical observations that can be implemented and would improve the operations of the centres, the government will address these in partnership with Nauru and PNG to address any deficiencies in good faith.

Any claims of mistreatment at the Manus OPC would be primarily a matter for the Administrator of the OPC. The Manus OPC is administered by PNG under PNG law, with support from Australia. The PNG Minister for Foreign Affairs and Immigration appoints the Administrator of the Centre (a PNG national) under section 15D of the Papua New Guinea Migration Act 1978 (the Act). The Administrator, who, under the Act has control and management of the Centre (currently the Chief Migration Officer, Head of the PNG Immigration and Citizenship Service Authority) has an Operations Manager at the OPC reporting to him, who has oversight of the day-to-day operations of the OPC.

To assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met, including through the provision of health and welfare services. Transferees can report any concerns to OPC staff.

Regarding the distribution of condoms, I can assure you that condoms are available at the Manus OPC, and the department’s contracted health service provider, International Health and Medical Service, conduct regular health information sessions on safe sex practices.

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

**********

Footnotes

[i] Attempt to commit unnatural offences is also an offence under section 209, with a maximum penalty of 7 years imprisonment.

[ii] Article 17: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.

[iii] Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

[iv] From an article in New Matilda, celebrating the 20^th anniversary of the Toonen decision (20 Years Since Toonen Changed the World, 11 April 2014): “Perhaps most dramatic of all has been the impact of the Tasmanian UN decision around the world. The Tasmanian decision was the first time the UN had recognised the equal rights of LGBTI people. When the Indian High Court overruled that country’s anti-gay laws in 2009 it was on the basis of the Tasmanian decision. When the UN Secretary-General Ban Ki Moon successfully urged the President of Malawi to release men gaoled for being gay, he cited the Tasmanian decision.In 2011 the UN Human Rights Commissioner, Navi Pillay, described the Tasmanian decision as a “watershed with wide-ranging implications for the human rights of millions of people.”

[v] Letter to Chris Bowen on LGBTI Asylum Seekers

[vi] A copy of the This is Breaking People report can be found here.

[vii] Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees sent to Manus Island, PNG

[viii] Guardian Australia, ‘Gay asylum seekers on Manus island write of fear of persecution in PNG’, September 24 2014.

[ix] Human Rights Watch, ‘Australia/Papua New Guinea: The Pacific Non-Solution’, July 15 2015.

[x] Ibid.

[xi] Op cit, Guardian Australia, September 24 2014.

[xii] World Health Organisation Global Health Observatory data.

[xiii] Based on the principles of the Toonen UNHRC decision, these assurances are irrelevant – the continued existence of laws criminalising male homosexuality should be sufficient to prevent the transfer of LGBTI people seeking asylum to these countries.

[xiv] This is the term used in the letter, not one that I would personally use or approve.

Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees Sent to Manus Island, PNG

Posted on February 2, 2014 by Alastair Lawrie

UPDATE: Sunday 20 July 2014

On Friday 18 July, I received the following response from the Department of Immigration and Border Protection, to my correspondence about the treatment of LGBTI asylum seekers and refugees:

Dear Mr Lawrie

Treatment of homosexual, bisexual, transgender and intersex asylum seekers

Thank you for bringing your concerns to the Minister’s attention.

Yours sincerely

[Name withheld]

Acting Assistant Secretary

Community Programmes Services Branch

9 / 7 / 2014

Some quick thoughts on the above:

Even though we are more than a decade into our post-Tampa nightmare of refugee policy in Australia, it is still shocking to see people simply seeking asylum in Australia described, by government officials, as Illegal Maritime Arrivals (IMAs). And it is probably almost as shocking realising that the same government official doesn’t even need to spell out what an OPC is anymore, instead it is taken as a given.

While the letter acknowledges there is no mandatory reporting of homosexual activity under PNG law, it explicitly does not state that there is no reporting of homosexual activity to PNG Police, or refute the claim that asylum seekers have been told they will be reported if found to engage in such activity.

It is difficult to accept the statement that “[t]o assist PNG in the implementation of the MOU, the government has contracted appropriately trained and experienced service providers to ensure that transferees’ needs are adequately met” from the same Government that is responsible for the death, in custody, of Reza Berati just over two weeks after I wrote my initial letter.

It is obviously welcome that, at least on paper, the Government claims it makes condoms available to asylum seekers on Manus Island – although whether they are made available in reality would be difficult to verify (given the shroud of secrecy surrounding, and lack of journalist access to, the detention facilities in PNG and Nauru).

The main problem remains however, and that is there is no firm commitment not to send LGBTI asylum seekers for ‘processing’ to countries which criminalise homosexuality, and no commitment that LGBTI refugees will not be permanently resettled in countries where they are liable to punishment merely for sexual intercourse.

The process outlined in the letter – that an asylum seeker must make a claim against the laws of PNG or Nauru prior to their transfer, is farcical given what we know about the current way asylum seekers are being assessed: while they are detained on navy or customs vessels, on the open sea, through a short interview (with as few as four questions by some reports) via teleconference to officials in mainland Australia. It is outrageous to suggest that the only way a gay asylum seeker can avoid being sent to another country which criminalises their sexual orientation is to declare their sexual orientation at short notice, whilst intimidated by naval or customs personnel (and potentially while intimidated by other asylum seekers, including possible family members), and to specifically claim protection against countries which they may not even be aware they are being taken to, and may not know criminalise homosexuality.

While I certainly wasn’t expecting to take much comfort from this response from the Department of Immigration and Border Protection, it is still depressing to realise that, yet again, so little solace is to be found.

ORIGINAL LETTER

The Hon Scott Morrison MP

Minister for Immigration and Border Protection

PO Box 6022

House of Representatives

Parliament House

CANBERRA ACT 2600

Sunday 2 February 2014

Dear Minister

TREATMENT OF LGBTI ASYLUM SEEKERS AND REFUGEES SENT TO MANUS ISLAND, PAPUA NEW GUINEA

I am writing regarding the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers and refugees sent to Manus Island, Papua New Guinea, both for offshore processing and permanent resettlement.

In particular, I am writing about concerning allegations raised in the Amnesty International Report This is Breaking People: Human rights violations at Australia’s asylum seeker processing centre on Manus Island, Papua New Guinea, which was released on 11 December 2013.

Chapter 8 of that report, titled ‘Asylum claims on the basis of sexual orientation’ (pages 73-75), details a range of serious allegations about the mistreatment of LGBTI asylum seekers sent to Manus Island for processing.

Specifically, Amnesty International found that:

Section 210 of the PNG Penal Code, which makes male-male penetrative sexual intercourse a criminal offence punishable by up to 14 years’ imprisonment, applies to asylum seekers detained on Manus Island
Section 212 of the PNG Penal Code, which makes other sexual activity between men, termed ‘gross indecency’, a criminal offence carrying a maximum penalty of 3 years’ imprisonment, also applies to asylum seekers detained there
Asylum seekers held on Manus Island have been informed that if they are found to have engaged in male-male sexual intercourse, they will be reported to PNG Police (despite no requirement for mandatory reporting)
Gay asylum seekers have reported being subject to bullying and harassment from other detainees and staff, including physical and verbal abuse and attempted molestation, but are not reporting this abuse because of fear of prosecution for their homosexuality
Interviewees have indicated that some gay asylum seekers have changed or are considering changing their asylum claim, from persecution on the basis of sexual orientation to persecution on another ground, in order to avoid prosecution (thereby jeopardising the chances of their claim ultimately being accepted)
Interviewees have indicated that some gay asylum seekers have chosen to return home, despite the risks involved to the personal safety/liberty, rather than be subjected to ongoing mistreatment because of their sexual orientation on Manus Island and
Condom distribution has been banned within the Manus Island detention facility, despite the risk of HIV transmission.

In these circumstances, it is perhaps unsurprising that Ms Renate Croker, the senior official from the Department of Immigration & Border Protection located at the Manus Island detention facility, told Amnesty International that “she was unaware of any asylum claims being made on the basis of LGBTI identity.”

Not only is this contradicted by the Amnesty Report – which interviewed a man who reported that his claim was based on persecution due to his sexual orientation, and who expressed concern about being transferred to Manus Island for this reason – it also ignores the fact that some gay asylum seekers may have changed their claims to other grounds (for the reasons outlined above), or that some asylum seekers may happen to be LGBTI but their claim is in fact based on persecution on other grounds (for example, race or religion).

Irrespective of how their claim is being dealt with, the Australian Government has a responsibility to protect the human rights of any and all LGBTI asylum seekers who have sought protection in Australia. This includes the right to freedom from prosecution on the basis of sexual orientation, gender identity or intersex status, the right to claim asylum and the right to health.

From the information contained in the This is Breaking People report, it seems the Australian Government is falling well short of its obligations in this area.

I should note at this point that I am strongly opposed to the offshore processing and permanent resettlement of any asylum seekers by the Australian Government. This policy does not constitute a humane response, nor does it live up to our international humanitarian and legal responsibilities.

However, the mistreatment of LGBTI asylum seekers and refugees raises particular problems, problems that do not appear to be recognized by the Australian Government. Nor does there appear to be any evidence the Government is taking action to remedy them.

Even if the offshore processing and permanent resettlement of refugees continues, this must not include the processing and resettlement of LGBTI asylum seekers and refugees in countries which criminalise homosexuality (which both PNG and Nauru currently do).

If you, as Minister for Immigration and Border Protection and therefore Minister responsible for the welfare of asylum seekers and refugees, cannot guarantee that sections 210 and 212 of the PNG Penal Code do not apply to detainees on Manus Island, then you cannot send LGBTI people there in good conscience.

If you, as Minister for Immigration and Border Protection, cannot guarantee that LGBTI asylum seekers and refugees will not be subject to homophobic bullying and harassment, and will be free to lodge claims for protection on the basis of persecution due to their sexual orientation, gender identity or intersex status, then you must not detain them in such facilities.

If you, as Minister for Immigration and Border Protection, cannot guarantee that all asylum seekers and refugees, including but not limited to LGBTI people, have access to condoms, then you are potentially endangering their lives and you should be held accountable for any health problems which occur as a result (noting that HIV continues to be life-threatening in the absence of treatment).

It has been clear since the reintroduction of offshore processing of asylum seekers in Nauru and Papua New Guinea, passed by the previous Labor Government and supported by the Liberal-National Opposition in mid-2012, that the criminalisation of homosexuality in these countries constituted a significant threat to the human rights of LGBTI asylum seekers sent there.

Indeed, I wrote to you as Shadow Minister for Immigration expressing my concerns about this exact issue in September 2012. I did not receive a response addressing the subject of LGBTI asylum seekers prior to your assumption of the role of Minister for Immigration and Border Protection in September 2013.

I sincerely hope, now that you are the person directly responsible for the health and wellbeing of asylum seekers and refugees, and especially after the Amnesty International Report This is Breaking People has confirmed that these human rights abuses are real, that you take this issue, and your responsibilities, seriously.

I look forward to your response on this important issue.

Yours sincerely,

Alastair Lawrie

A copy of the Amnesty International Report This is Breaking People, can be found here: <http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf

No 1 Australia Sends LGBTI Refugees to Countries which Criminalise Homosexuality

Posted on December 27, 2013 by Alastair Lawrie

I wish that I could have finished this countdown with something more positive. Indeed, I was tempted to elevate the achievement of the Sex Discrimination Amendment Act 2013 to No 1, just so I could end on a high note.

Alas, Australia’s ongoing mistreatment of refugees, including the gross violation of their human rights, is simply too heinous to ignore, and too severe to downplay. And in 2013, these abuses reached a new low, with the then Rudd Government introducing, and the incoming Abbott Government retaining, a new policy to permanently resettle refugees who arrive by boat in Nauru and on Manus Island in Papua New Guinea.

More than just a fundamental breach of Australia’s international obligations, this policy is an attempt to permanently turn our backs to the humanity of people fleeing persecution in other countries, people who were seeking our compassion but, when they arrived, found none.

All of this is bad enough to attract the opprobrium of anyone interested in human rights, including LGBTI rights. But there is a special reason for LGBTI activists and advocates to oppose the resettlement of refugees in Nauru and Papua New Guinea – and that is that both countries continue to criminalise male homosexuality, by up to 14 years imprisonment.

While the letter of the law only applies to male homosexuality, any place which criminalises sex between people of the same-sex is not a safe environment to send refugees who are lesbian, gay, bisexual, transgender or intersex. The potential dangers of doing so were apparent when the then Gillard Government first announced that Nauru and Manus Island were to be re-opened as ‘offshore processing centres’ in mid-2012.

At the time I wrote to the Immigration Minister, Chris Bowen, asking him whether the Government supported the rights of LGBTI asylum-seekers, and whether they could guarantee that the laws criminalising homosexuality would not be applied to the people we sent there (original letter: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/). A similar letter was sent to then Opposition Immigration Spokesperson Scott Morrison.

It took almost ten months, and some harassment, for the Government to reply, and when they finally did, in June 2013, they did not answer the question – effectively conceding that the criminal laws of Nauru and Papua New Guinea do apply to LGBTI refugees we send there (response here: https://alastairlawrie.net/2013/06/30/lgbti-refugees-on-nauru-manus-island/).

In a sign of things to come, Mr Morrison never replied. All of which meant that I was completely unsurprised by the Amnesty International Report “This is Breaking People”, released on 11 December 2013, which spelled out just how awful the consequences of this policy are for LGBTI asylum seekers (report here: http://www.amnesty.org/en/library/asset/ASA12/002/2013/en/b2f135dc-3353-420d-b587-05d2b3db6e2f/asa120022013en.pdf see especially discussion on pages 73-75).

But just because I am unsurprised, does not mean I am not outraged – and you should be too. In short, gay refugees sent to Manus Island are:

Told that same-sex sexual activities are prohibited
Told that, if they engage in same-sex sexual activities, they will be reported to PNG Police (despite there being no legal onus for the operators to do so)
NOT provided with condoms (and with safe-sex education comprising a talk telling them not to have sex) and
Subject to bullying and harassment from other detainees on the basis of their sexual orientation.

In such circumstances, it is even less surprising that the senior Australian Government official at the camp, Renate Croker, said she was unaware of any person claiming asylum on the basis of persecution due to their LGBTI status.

Not only is this apparently incorrect – with Amnesty International interviewing several gay male asylum-seekers, including at least one quoted as saying he had made a claim on that basis – it also ignores the fact that people can be LGBTI but claim asylum because of persecution on other grounds (eg race, religion).

Indeed, one of the refugees interviewed claimed that other people have considered changing and/or changed their applications to be refer to other grounds, rather than be exposed to further bullying or harassment inside the camp, as well as to minimise the threat of being reported to PNG Police. He further “explained that some gay men have chosen to return to their home countries with IOM [International Organization for Migration]’s assistance, despite the risks they face upon return.”

All of which made the comments of Minister Morrison in response to the report all the more chilling. The following excerpt is taken from Oliver Laughland’s excellent article in the Guardian Australia on 13 December (titled Scott Morrison denies Amnesty report findings on Manus island detention):

Morrison said this [automatic reporting to PNG Police] was not the policy of the government but added all asylum seekers on Manus were provided with “clear advice” on “relevant laws” in Papua New Guinea. Homosexuality is illegal in PNG and can carry a 14-year sentence. Morrison was asked repeatedly by Guardian Australia if the “relevant laws” included those relating to homosexuality but he declined to go into detail, adding: “In these press conferences you get to ask the questions, you don’t get to give the responses as well.” Morrison added that the department was “unaware of any claims or declarations of homosexuality or of any reports of homosexuality being investigated by the police at the centre”. [full article here: http://www.theguardian.com/world/2013/dec/13/scott-morrison-denies-amnesty-report-findings-on-manus-island-detention).

In short, our current Immigration Minister has all-but confirmed that PNG laws criminalising homosexuality apply to LGBTI refugees sent there, as well as expressing a clear lack of understanding about the nature of sexual orientation, homophobia and the reasons why LGBTI refugees might not want to make a ‘declaration’, including but not limited to the risk of criminal punishment.

All-in-all, the situation confronting LGBTI refugees sent to Manus Island, and by extension, Nauru, is a nightmare. But it cannot be divorced from the broader nightmare that is Australia’s bipartisan ‘Pacific Solution Mark II’. The fact that we are sending any refugees to be processed, and permanently resettled, on Nauru and in PNG is a massive failure of our political system, and of the Australian people for allowing it to happen, for it to be done in our name.

Tragically, as 2013 draws to a close, it is unclear how any of this is going to change. I would like to be able to end this article, and this countdown, by saying something like “Here’s hoping in 2014 we take the first steps towards a humane refugee assessment system.” But the pessimist in me, reflecting on all of the events of the past 12 to 18 months, wants to say instead “Please just don’t let it become any worse”.

LGBTI Refugees and the 2013 Federal Election

Posted on September 3, 2013 by Alastair Lawrie

It appears that my previous post on LGBTI asylum seekers was overly optimistic (well, to be perfectly honest it wasn’t that optimistic to begin with – it’s just that the reality has turned out to be even worse than the already dire situation).

After more than 9 months of trying to get an answer out of the Commonwealth Immigration Minister (first Chris Bowen, and then Brendan O’Connor), when I eventually received a response from the Immigration Department instead in June, it failed to answer whether the criminal laws against homosexuality of Nauru and Papua New Guinea applied to refugees in processing centres there.

This omission clearly implied that the criminal laws do in fact apply. However, the letter left open an interpretation that refugees who were LGBTI, and feared persecution (or prosecution) in these countries, could apply to the Minister to be transferred to Australia, on the basis that their rights could not be guaranteed in those countries.

Unfortunately, that no longer appears to be the case. In the time since that response the Prime Minister changed, and within a month of Rudd’s return he had announced the ‘PNG Solution’, with a similar deal with Nauru revealed shortly afterwards. These policies moved beyond offshore processing, to include the permanent ‘resettlement’ in those countries of any and all refugees who arrive in Australia by boat.

Now, let me say from the outset that I completely oppose these policies, and believe them to be unconscionable, inhumane, and probably contrary to international law. Australia should not be in the business of abrogating its responsibility to offer protection to people who are fleeing persecution by simply dumping these people in other countries. And my opposition applies to the ‘resettlement’ of all refugees, irrespective of the grounds of their persecution (eg race, religion, nationality etc).

However, as a gay man, and in particular as a passionate advocate for LGBTI rights, I find policies that involve the resettlement of LGBTI refugees in countries that criminalise homosexuality particularly abhorrent. That is exactly what Australia is doing – taking any LGBTI refugee who arrives by boat and sending them to countries which make male homosexuality a criminal offence, liable to up to 14 years’ imprisonment.

I know that many other people agree with me – in fact, the only pleasing thing arising from this horrible situation has been the emergence of a variety of voices condemning these policies. This has meant that the Labor Government has been unable to avoid questions on this particular topic (something which they had largely managed to successfully do in the previous 10 months).

But it doesn’t make the answers given by Government Ministers any easier to stomach. On 8 August, Serkan Ozturk of the Star Observer reported that the Attorney-General Mark Dreyfus (an intelligent man who really should know better): “confirmed the government intends to send all asylum seekers who arrive in Australia by boat without a visa – including LGBTI people fleeing persecution and people living with HIV – to Papua New Guinea (PNG) for processing and permanent resettlement despite laws criminalising homosexual sex, high rates of HIV infection and limited medical and social infrastructure on the impoverished island-nation…

When questioned by the Star Observer on whether LGBTI asylum seekers would be sent to PNG, Dreyfus was unequivocal.

“You’ve outlined an aspect of PNG law which is of general application but as I say we are not ruling out any group,” Dreyfus said.

“At the same time our Minister for Immigration, Tony Burke, has made it very clear that those transfers won’t occur until there is appropriate accommodation and appropriate circumstances for everyone who is sent.”

Pressed on whether that meant the Australian government would be placing pressure on PNG to reform legal codes, Dreyfus said he would not be drawn “giving a running commentary” on the laws of neighbouring countries, including PNG, Indonesia or Malaysia.

“We don’t think that’s necessary in order for Australia to comply with our international legal obligations and the obligations we have under the Migration Act.””

The fact that the Government is aware of this situation, and specifically the potential consequences of sending LGBTI refugees to these countries, but has continued on along this path irrespective of the dangers, is damning.

Sadly, the Foreign Minister, Senator Bob Carr, isn’t any better. On 6 August the ABC reported (from what I believe was a response to an oursay question from Senthorun Raj) that Senator Carr similarly confirmed that homosexual asylum seekers who arrive in Australia by boat will be resettled in PNG despite facing prison under local laws, even though those laws conflict with contemporary Australia values.

“I am concerned about… what we see as a grotesquely outdated, legal position applying in PNG. I understand – and I know this is little comfort – but there have been few if any charges laid or prosecutions made under laws prohibiting homosexual activity in PNG,” he said. You are right on one thing, Senator Carr: that is little comfort.

Tony Burke, the current Minister for Immigration (and the third person to hold that post this year), also believes that this policy is appropriate. However, in one of the most Orwellian moments of the 2013 federal election campaign (or indeed in recent Australian politics more generally), he stated that he had been advised that ‘no part of the caseload so far’ had arisen (ie no LGBTI person had been sent to Nauru or PNG so far).

The transcript, from a media conference on 1 August, is as follows:

Question: Sorry Minister, just to go out to Manus Island for a moment. Given that homosexuality is still considered a crime in PNG, but our government has pledged to transfer all asylum seekers regardless of their sexuality, what efforts have been undertaken to make sure that those transferred will not be persecuted for their sexuality, either as detainees, or if they are then settled in PNG?

Tony Burke: In the first instance we have no part of the caseload so far where this issue has arisen, no part of the caseload where this has arisen. In…

Question: So does that mean…

Tony Burke: Please, please, when other people were talking over you I made sure you got the run so allow me to answer your question.

I’ve been very careful throughout all of this to not carve out any exclusions from the policy. And I explained the implications of that with the specific reference to what the Opposition have attempted to do with women and children. There are very deep implications if we start carving people out. And if you do that, you are by no means taking a – I’m saying you, but anyone doing that is by no means taking a compassionate response because of the automatic reaction that people smugglers will engage in.

My language on this has not changed, which is people will be sent when we are confident they will be safe, when we are confident that appropriate accommodation and services are in place, and I’m not going to define it further than that.”

Which raises far more questions than it provides answers. It is possible that what he meant to say was that no-one sent to Manus Island has lodged a refugee claim on the basis of persecution of sexual orientation, gender identity or intersex status. But that doesn’t mean those claims won’t emerge at a later point (it is definitely possible that a LGBTI refugee will not disclose their status in the limited time after arrival in Australia and before transfer, but that it would instead emerge at a later point).

And it ignores the fact that someone who is seeking refugee protection on the basis of race, religion or other grounds can also be LGBTI (even if just as someone who has sexual intercourse with someone else of the same sex). This would not be immediately apparent to an interviewer and there are foreseeably several reasons why they would NOT disclose their particular circumstances (especially if fleeing as part of a family group where their family is unaware of their sexual orientation).

But the most obvious flaw in Minister Burke’s advice is that all refugees who arrive by boat, including children, are being ‘resettled’ in PNG and Nauru. Those children could grow up to be lesbian, gay, bisexual or transgender, or they may have been born intersex, and it may not be known to that child, their family or indeed anyone else at the time of resettlement. It does not make it any more acceptable that as a country we exposed that child to future criminal prosecution (or at the very least, societal discrimination), simply because we didn’t know of their status.

We DO know that this policy is wrong and should be stopped, which means that we are collectively responsible for what happens in the future as a result of it.

Unfortunately, while some of the positive reforms of the Rudd/Gillard/Rudd Labor Governments will be dismantled by the incoming Abbott Liberal-National Government it seems there is bipartisan agreement on the idea of resettling refugees in South Pacific countries. Opposition Leader Tony Abbott, and Shadow Minister for Immigration Scott Morrison, both appeared to welcome the announcement by Rudd of the PNG policy, while they have also announced their own plans to resettle refugees in Nauru (aka “tent city”).

It should also be pointed out that, last September, at the same time that I wrote to the Immigration Minister (and Prime Minister and Attorney-General), I also wrote to the Shadow Minister, Opposition Leader and Shadow Attorney-General, raising the same concerns about the processing or resettlement of LGBTI refugees in countries which criminalise homosexuality. No-one from the Opposition ever responded to these letters, which perhaps indicates how seriously they take those concerns.

The fact that, as it stands, both major parties endorse this policy means that, no matter who is elected on Saturday, the incoming Government will continue to abrogate its responsibilities to offer protection to all refugees, including refugees who are LGBTI. That it will inevitably continue to be cheered along by sections of the press will make it even harder to endure.

Perhaps the only ray of hope in this awful mess is that the High Court might do what the public should (but won’t) on Saturday – tell our MPs, from both the ALP and the Liberal-National Coalition, that resettling refugees in PNG and Nauru is unconscionable, inhumane, and, hopefully, unlawful. So, to our distinguished High Court Justices I say: no pressure, but it seems this is now entirely up to you.

LGBTI refugees on Nauru & Manus Island

Posted on June 30, 2013 by Alastair Lawrie

So, the past few weeks have been pretty busy (with the SDA Bill and my Change.org petition to help ensure the national Health & Physical Education curriculum is genuinely LGBTI-inclusive). One thing which happened earlier in June, which I had previously committed to place on my blog, is that I finally received a response to my letter to the then Minister for Immigration, Chris Bowen – which I first sent in September 2012!

It has only taken 9 months, including a follow up letter to Minister Bowen, a new message to Minister Brendan O’Connor, who was appointed in February, and then some ongoing twitter harassment/stalking. Even after all of this the response which I have received is not from the Minister himself (either of them) but rather from the Director of the relevant Branch in the Department.

I have included the full text of the letter below. But I have chosen to omit the name of the Branch Director, because as a former public servant I can only imagine that they were instructed to draft the letter in this particular way, and after all, this is about the Government’s policy and not an individual.

In my original letter (see: https://alastairlawrie.net/2012/09/07/letter-to-chris-bowen-on-lgbti-asylum-seekers/), amongst other questions, I asked whether the Government supported the rights of LGBTI people to seek asylum, as well as whether these asylum seekers would be subject to the laws of Nauru and Papua New Guinea (Manus Island) which still criminalise homosexuality.

The response to the first question appears to be yes – the letter at least accepts the fact that people can claim refugee status on the basis of sexual orientation and gender identity (although it is less clear that intersex status is accepted). How well Australia implements this commitment is, of course, a much longer discussion.

However, the letter refuses to answer the second key point. I can only assume that, based on the Director’s avoidance of this issue, the criminal offences relating to homosexuality in Nauru and Papua New Guinea do, at the very least, technically apply to the asylum seekers which we as a country distressingly continue to send to these places.

The letter then rather cryptically goes into detail about what individuals can do if they object to being transferred to a particular Regional Processing Country. While I would fully expect that the ‘Ministerial discretion’ which is alluded to would be exercised to override such concerns, I believe that the lawyers who represent LGBTI asylum seekers being sent to Nauru or Manus Island should at the very least raise their concerns under s198AE with the Minister (whoever that might be after the reshuffle tomorrow).

As an aside I don’t actually think that it matters whether the particular asylum seeker is seeking protection because of persecution on the basis of sexual orientation or gender identity (or intersex status), merely that they are LGBTI and fear persecution by the Governments of Nauru or Papua New Guinea because of their ongoing criminalisation of same-sex activity.

I will now endeavour to ensure that LGBTI and/or general refugee advocates are aware of this advice and can take any appropriate steps (noting that these applications may have already been made to, and rejected by, the Minister for Immigration since the detention centres were reopened last August).

Overall, of course, even if LGBTI asylum seekers were removed from Nauru and Manus Island, this would only be ‘fiddling at the edges’ of the revived Pacific Solution, a policy so awful that it brings shame to the entire Australian population, myself included. No asylum seeker, whether LGBTI or not, should ever be sent to such places, for an indefinite period, merely for exercising their fundamental right to seek protection from persecution.

Most depressingly of all, the upcoming federal election doesn’t appear like it will change these policies – if anything, the probable election of Tony Abbott as Prime Minister, with Scott Morrison as Minister for Immigration, will make things substantially worse.

On that ‘glass-completely-empty’ note, here is the response from the Department which only took 9 months to conceive:

Dear Mr Lawrie,

In the guidelines set out in the Departmental Procedures Advice Manual 3 (PAM3), for the guidance of interviewing officers, they are advised that

“Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transsexual applications may, therefore, have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret. Interviewers and decision makers should, therefore, not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.”

A copy of the Minister’s s198AE guidelines and the Pre-Transfer Assessment form and guidelines can be found at the Department’s website at: www.immi.gov.au/visas/humanitarian/whatsnew.htm

Thank you for writing about this matter and I apologise again for the delay in respond.

Yours sincerely

[Name withheld]

Director

Protection Policy Section

6 June 2013

Letter to Chris Bowen/Brendan O’Connor on LGBTI Asylum Seekers

Posted on September 7, 2012 by Alastair Lawrie

Update 6 February 2013: So, this correspondence was never answered by Minister Bowen, before he left the portfolio in last week’s reshuffle. I don’t know for sure what that is a reflection of, but can only assume that not answering in 6 months means he was not open to scrutiny on the issue of LGBTI asylum-seekers and in particular their treatment on Nauru, Manus Island and, eventually, in Malaysia.

With the appointment of Brendan O’Connor as the new Minister for Immigration I have resent the original correspondence, including the questions below, to Minister O’Connor. If I have not received a response within 4-6 weeks it will be time to pursue this again but in a more public format. Thanks for reading.

Original Post: Like many Australians, I was appalled by the recent decision of the Australian Government to accept the recommendations of the Houston Report and send asylum seekers to Nauru and Papua New Guinea for indefinite periods (and by the Government’s refusal to rule out sending asylum seekers to Malaysia in the longer-term). I am also appalled by the potential consequence of this decision for LGBTI asylum seekers, and have written the following letter to Australia’s Immigration Minister, Mr Chris Bowen. I will of course write a similar letter to the Opposition’s Immigration spokesperson Scott Morrison, given the Liberal and National Parties supported the move to ‘offshore processing’. As always I will post any response received.

Dear Minister Bowen,

I am writing to express my disagreement and disappointment with the Australian Government’s decision to implement the offshore processing of asylum seekers.

I think that this decision is a failure of our human rights obligations under international law, not to mention a failure of our moral obligations as human beings to open our arms and our hearts to people fleeing persecution.

Given that your government has now committed to process asylum seekers in Nauru, Papua New Guinea and, in the medium term, through ‘regional processing’ in Malaysia, I am also writing with several questions which I would like answered about one particular issue – the treatment of lesbian, gay, bisexual, transgender and intersex (LGBTI) asylum seekers.

Do you acknowledge that there are many countries around the world where being LGBTI is illegal and/or subject to government harassment and intimidation?
Do you accept that LGBTI people have the right to seek asylum on the grounds of persecution of their sexual orientation or gender identity?
Do you agree that this means LGBTI asylum seekers should be accepted by countries like Australia, rather than be returned to their originating country and asked to ‘return to the closet’ or conceal their sexual orientation or gender identity? (Disturbingly, there have been some cases within Australia suggesting that LGBTI asylum seekers can be returned in such circumstances, something which is not required of people fleeing persecution on political, religious or other grounds. I am simply seeking your confirmation that you do not support this special and discriminatory imposition on LGBTI asylum seekers).
Do you support the right of LGBTI people to seek sexual companionship, form loving relationships and found families no matter where they are in the world? Are these fundamental rights which should be protected?
Do you agree that asylum seekers who are fleeing persecution on the grounds of sexual orientation or gender identity (or indeed who are fleeing on other grounds but are LGBTI), should not be sent to any country which criminalises or discriminates against LGBTI people?
Are you aware that homosexuality is currently illegal in all three countries to which the Australian Government currently intends to send asylum seekers?
Will the laws of these jurisdictions apply to asylum seekers being detained by the Australian government (or, in the case of Malaysia, to asylum seekers who may be living in the community)?
What representations have the Australian Government made to, and what agreements have the Australian Government sought with, the governments of Nauru, Papua New Guinea and Malaysia, on the specific treatment of LGBTI asylum seekers?
Do you agree that, if LGBTI asylum seekers are unable to seek sexual companionship, form loving relationships or found families in Nauru, Papua New Guinea and Malaysia, that this is a fundamental breach of their human rights?
As a fellow human being, are you comfortable that the Australian Government will reject someone who is fleeing the death penalty in another country for simply being who they are and instead send them to a third country where it remains a criminal offence to be who they are?

I have copied this letter to the Prime Minister, Foreign Affairs Minister and Attorney-General given these issues cut across several portfolios. I look forward to your prompt response.

Yours sincerely,

Alastair Lawrie

As an illustration of why there remain so many LGBTI refugees, the following map indicates the countries in which homosexuality remains illegal – while there has been significant progress over the past 50 years, there remains far too many countries shaded black, including of course Papua New Guinea:

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

Category Archives: Refugees

Australia’s (Mis)Treatment of LGBTI Refugees

Do you feel proud, Malcolm?

Submission to Senate Inquiry into Treatment of Asylum Seekers on Nauru & Manus Island

Letter to Scott Morrison about Treatment of LGBTI Asylum Seekers and Refugees Sent to Manus Island, PNG

No 1 Australia Sends LGBTI Refugees to Countries which Criminalise Homosexuality

LGBTI Refugees and the 2013 Federal Election

LGBTI refugees on Nauru & Manus Island

Letter to Chris Bowen/Brendan O’Connor on LGBTI Asylum Seekers