Tag Archives: Amnesty International

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

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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 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

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

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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”.

No 5 Homosexuality Still Criminal in 77 Countries

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The past four posts have looked at one issue (marriage equality, both domestically and around the world) and gay rights in two specific countries, Russia and India.

The subject matter of each of these four posts has received significant media coverage – for some pretty obvious reasons. Same-sex couples seeking the right to marry provide both a ‘human interest’ story, and usually some compelling images to accompany it. Putin’s crackdown on LGBTI Russians has inevitably received widespread attention, particularly in the lead-up to the Winter Olympics. And it is pretty hard to ignore the re-criminalisation of homosexuality in a country with more than 1.2 billion people.

But, comparatively, it has been much easier for the media to ignore the ongoing criminalisation of homosexuality in 77 countries across the world (including India after the recent Supreme Court decision, but excluding Russia where, despite the anti-propaganda law homosexuality itself remains legal).

To put that figure into perspective, that is five times the number of countries that have full marriage equality (or more than four times the number of countries including those where some parts have adopted marriage equality, like the United States). So, while some parts of Europe and North and South America (together with South Africa and New Zealand), push forwards towards full equality, more than a third of countries around the world still treat homosexuality as a criminal offence.

This includes 38 countries in Africa, while 41 countries come from the Commonwealth (which is pretty extraordinary when you consider there are only 53 member states in total).

Tragically, the are five countries – Iran, Mauritania, Saudi Arabia, Sudan and Yemen – where homosexuality attracts the death penalty, while capital punishment also applies in parts of Nigeria and Somalia.

Which is a scandalous state of affairs, and something that the media – including but not limited to the LGBTI media – should report, and reflect, more on.

There have been some encouraging recent signs – in terms of coverage, if not subject matter. Over the past week, moves to increase criminal penalties in Uganda and Nigeria have attracted attention globally. The murder of Eric Ohena Lembembe in Cameroon mid-year was also covered, as have, periodically, anti-gay developments in Zimbabwe, Iran and elsewhere.

What has also been encouraging during 2013 has been the debate, within the Australian LGBTI community, about the need for advocacy for global LGBTI rights. Sparked in part by the situation in Russia, there has finally been a discussion about the relative priority we give something like marriage equality, compared to decriminalisation around the globe.

After all, while we are fighting for the right to walk down the aisle, our LGBTI comrades elsewhere are fighting simply for the right to exist. I’m not suggesting that we have those priorities right – in fact far from it. But I get the feeling that we are closer to achieving a better balance at the end of 2013 than at the beginning.

Some of the organisations that have helped to promote the global push for decriminalisation include the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA: http://ilga.org), AllOut (https://www.allout.org), the Kaleidoscope Trust (http://kaleidoscopetrust.com), and of course Amnesty International (a link to the NSW LGBTQI Network here: http://www.amnesty.org.au/nsw/group/12065/). I would encourage you to support any or all of them.

One final point I would like to make is that there are things that the Australian Government can and should be doing with respect to this issue, not just raising it (diplomatically, in all senses of the word) through international forums and bilaterally, but also by providing aid to global campaigns for sexual orientation, gender identity and intersex status equality.

One special burden which falls upon Australia is its own responsibility for the criminal laws which still exist in our former ‘colony’, Papua New Guinea, which were in place before Independence in September 1975. Because of that fact, it is imperative that the Australian Government – and the Australian LGBTI population generally – helps to encourage moves in our closest neighbour to decriminalise homosexuality. Hopefully that day, not just in PNG but right across the South Pacific, is not too far away.