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.