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,

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