When claiming to be gay, lesbian or bi for immigration purposes, make sure you have evidence

When claiming to be gay, lesbian or bi for immigration purposes, make sure you have evidence

There have been a number of recent cases where people have sought to be refugees in Australia on the basis that they are gay, lesbian or bisexual and that if they are returned home then they will be persecuted.

The problem that a number of these claimants have had is that the evidence sometimes is either non-existent or indeed points the other way- either the person does not have the claimed orientation, or there is no real risk of persecution.

Case 1: The Filipino Muslim Gay

In SZHSS v Minister for Immigration and Citizenship, the claimant appealed to the Federal Court, having been unsuccessful before the Refugee Review Tribunal or the Federal Magistrates Court.

The Tribunal accepted he had experienced the following:

• His family tried to dissuade him from being homosexual by withholding family allowances and ostracising him (continuous).
• His family teased, mocked and gave him “constant annoyance” (continuous).
• His brother made him cut his long hair by threatening to cut off his allowance (1996).
• His family tried to force him to marry a woman and when he refused they cut off his allowance (1998).
• The Moro Islamic Liberation Front (MILF) invited him to join them and threatened him when he refused leading to him resigning from his job and losing his college accommodation (1998).
• While walking home he was stopped by three Muslim men whose faces were covered by handkerchiefs. They cut off his pony tails and said that if he kept on “doing this”, by which he understood them to mean “being gay”, they would “cut [his] belly” (2005).

The Tribunal was not satisfied that the family’s treatment of the appellant amounted to persecution. As the appellant had had no further problems with the members of the MILF since 1998 (more than six years before claiming asylum), the Tribunal was satisfied that they had “lost interest in him”. The Tribunal found that the 2005 assault was an isolated event and it was unable to establish whether it occurred for a Convention reason. It also found, based on independent information about homosexuals in the Philippines, that the appellant could reasonably be expected to relocate within the Philippines. For these reasons, the Tribunal found that the appellant did not have a well-founded fear of Convention-related persecution.

On his application for review in the Federal Magistrates Court, the claimant raised the following grounds:
1. The Tribunal is satisfied that the MILF lost interest of me because they don’t cause me problems some six years ago. And the tribunal further mentioned that the fact that I had no further contact with those three men who cut my hair during my final three months in the town suggests that it was an isolated event which will not be repeated even if I return to my town.
2. The tribunal accepted I do not have a good relationship with my brothers. But the tribunal is not satisfied I suffered any serious harm as a result.
3. The Tribunal accepted that I am a homosexual, but the tribunal never further mentioned or accepted in the findings and reasons that homosexuals are a taboo in a Muslim society.

Justice Gyles remitted the matter for further consideration to the Tribunal on the basis that the tribunal had not considered the key question of the effect on the claimant of being both a Muslim and a homosexual living in the Philippines, and not merely being homosexual.

Case 2: The Chinese Lesbian

In SZHEV v Minister for Immigration and Citizenship, the claimant claimed that she participated in the 1989 pro-democracy movement and supported the students by helping distribute propaganda materials and collecting donations. The appellant claimed that she had been in Beijing during the Tiananmen Massacre, and that her aunt had been accidentally killed by the government who then forced the appellant to sign a statement indicating her aunt and uncle were rioters. Since then the appellant has been regarded as a political dissident. The appellant had to attend brainwashing classes, and in 1990 was dismissed from her job. She claimed to have difficulty finding employment due to her blemished record. She claimed to have been required to participate in brainwashing classes and regularly detained on the anniversary of the Tiananmen Square massacre.

The claimant claimed to also have been targeted by the authorities for being a lesbian. She claimed that in 1987 she formed a sexual relationship with a co-worker, that she had been regularly investigated and monitored by the Public Security Bureau (‘PSB’), and that she had been thrown out of her dormitory. The appellant claimed that during the brainwashing classes she met other lesbians and they formed an organisation in 2003 called ‘The Association of Love’, which distributed propaganda materials asking for freedom, human rights and respect. She claimed she was elected chairman of the organisation and that in 2004 she was interrogated by police. She claimed that since January 2005 many members of the Association of Love had been arrested, and her partner had been interrogated. She claimed the PSB searched her home and found she was the founder and leader of the Association of Love.

The Tribunal decision

The Tribunal did not accept the appellant was a political activist and consequently found she was not a credible witness. The Tribunal accepted that the appellant was in Beijing at the time of the 1989 pro-democracy movement and that her aunt and uncle were inadvertently shot. The Tribunal accepted the appellant had been detained for 20 to 24 days in 1989 and that she was required to sign documents confessing her aunt and uncle were rioters. However, the Tribunal found the appellant had provided no evidence to support her claim that she was regarded as a political dissident or that her dismissal from her job was related to the pro-democracy movement. The Tribunal was not able to satisfy itself the appellant was then, or subsequently regarded, as a political activist or dissident; the appellant had not been in a leadership role and the actions of the PSB were not to incriminate the appellant but were to justify the shooting of her aunt.

The Tribunal found the appellant’s claims on a range of matters were inconsistent (such as her employment record) and did not accept that her record had been blemished. Further, the appellant had not been involved in anti-government demonstrations or other activity in Australia. It found that if she had strong views on human rights she would have been involved in such activity in Australia.

The Tribunal was also not satisfied that the appellant had been subjected to serious harm for being a lesbian. The Tribunal was not satisfied the essential and significant reason the appellant had been dismissed from her job was a Convention reason. The Tribunal noted that the appellant gave evidence that her partner had not been evicted from the dormitory nor had been dismissed from her employment for being a lesbian. The Tribunal did not accept the appellant and her partner would have had such significantly different treatment.

The appellant gave evidence that she was legally issued with a passport in March 2004, was allowed to leave for Europe (and return to China) and then to Australia without difficulties. The Tribunal gave consideration to country information and found that if the appellant had been a known lesbian and had been regarded as a political dissident since 1989 she would not have been legally issued with a passport. Further, if the appellant had suffered persecution, she would not have returned to China in 2004 but rather would have sought asylum in Europe. If the authorities had been interested in the appellant because of her involvement in the Association of Love, the appellant would not have been able to leave China in 2005.

Although the Tribunal accepted the appellant was a lesbian and had met with other lesbians, it found that their organisation was a small group of friends rather than an illegal organisation pursuing human rights. It found that she had embellished her claims in relation to the Association of Love. The Tribunal considered country information and found that lesbians and homosexuals were not persecuted in China, and that the appellant did not have a well-founded fear of persecution for her involvement with such an organisation.

Federal Court

Justice Middleton held:

On the question of evidence, in written submissions …the appellant submitted
that the Tribunal failed to consider important evidence upon which the appellant
relied. However, in each of the instances given, the Tribunal did in fact refer
to and consider the evidence, but rejected the claims. Therefore, this is not a
case of failing to consider the evidence or the claims, but a case where each of
the claims was considered but rejected.

Justice Middleton then dismissed the appeal.

Case 3: The Indian “Lesbian”

In SZKRV v Minister for Immigration and Citizenship, the claimant alleged that was from India, was a lesbian, had been persecuted by her family because she was a lesbian, and was thrown out of her political party because she was a lesbian.

The Refugee Review Tribunal did not believe her, and its view was upheld on appeal. The Tribunal held:

As I do not accept the applicant is a witness of truth, I do not accept the
applicant is a lesbian or is or was in a lesbian relationship with [S]. It
follows I do not accept she and/or [S] were dismissed from the Trinamul Congress
Party or that she was taunted or harmed by her family or by society or that the
police refused to assist her.

Case 4: The Mongol Gay

In SZLAY v Minister for Immigration and Citizenship, the claimant was a gay man from Mongolia. He unsuccessfully claimed to the Refugee Review Tribunal that he would be persecuted for being gay in Mongolia, and then delayed his appeal in the Federal Court, ultimately withdrawing it.

Justice Weinberg held:

He did not at any stage argue that he faced persecution in Mongolia by reason of
any legal strictures against homosexuality that operated in that country. Quite
to the contrary. His case had always been presented on the basis that, although
there were no laws against homosexual acts as such in Mongolia, conduct of that
nature would be subject to social opprobrium.
11 The appellant did not
provide any adequate explanation as to why counsel could not have been retained
at an earlier stage to argue this point. His solicitor, appearing before me,
conceded that he had been considering the new ground for several days, but
claimed that he had been unable to retain counsel to argue it in the time
available. I am not persuaded by that explanation.
12 There is nothing in the
material before the RRT, which suggests that, as a matter of practical reality,
homosexuals in Mongolia face prosecution under the Penal Code. Indeed, such
evidence as there was before the RRT suggested quite the contrary. Importantly,
that was the appellant’s own position in answer to questions put to him during
the course of the hearing.

Case 5: The Indian “Bisexual” and his wife

In SZLGN v Minister for Immigration and Citizenship, a husband and wife sought refugee status. The husband claimed, amongst other things, that he was bisexual and would be persecuted in India.

The Tribunal was not satisfied that the husband was, or would be regarded in India as, a “male homosexual”, a “male bisexual’, a “male who has, or is disposed to sexual relations with other men” or anything relevantly similar. The Tribunal did not, therefore, accept that the husband was a member of any “particular social groups”.

The Tribunal held that the husband had given no credible evidence of having suffered treatment amounting to serious harm such as could reasonably be regarded as persecution and was not satisfied that the husband had a well-founded fear of being persecuted in India for a Convention-related reason. It affirmed the delegate’s decision not to grant the appellants protection visas.

The Federal Court upheld the earlier decisions.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544

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