When did clubbing and being sexually active become the reference points for measuring someone’s sexuality? Recent decisions by the Department of Immigration and Citizenship (DIAC) and the Refugee Review Tribunal (RRT) suggest that Western cultural stereotypes prevail in the determination of sexuality-based asylum claims.
The Refugee Convention 1951 outlines that asylum seekers must demonstrate a well-founded fear of persecution on the basis of a protected ground to be considered a refugee. The protected categories include ethnicity, nationality, religion, social group or political opinion. In Australian law, sexuality, or specifically "homosexuality", has been considered a protected identity under the category of "social group" since Morato’s case in the Federal Court in 1992.
Historically, claims made by sexual minorities have been met with resistance from decision-makers who have argued that persecution can be avoided if the asylum seeker chooses to remain "discreet". Stereotypes underlying the need for discretion are predicated on the assumption that gay men are excessively promiscuous, often seeking sex in public, and dangerous to the mores of society. These social imaginaries characterise any form of public affection as indicative of "overt sexual activity" that should be "rightly" condemned.
A 1999 case concerned a Chinese asylum seeker who was beaten and detained for three months for kissing another man in public. The Federal Court sought to dismiss the claim on the basis that Gui lacked appropriate discretion with respect to Chinese cultural norms and ought to have engaged in his display of homosexuality privately. In 2003 these discretion tests were rejected by the majority of the High Court — but the moralising rhetoric that underpins the so-called need for discretion continues to haunt current decisions.
Conversely, female applicants often face the opposite problem. Their claims are deemed to lack credibility because they do not conform to a highly visible stereotype of public promiscuity and consumption. In a 2008 case, a female applicant from Mongolia was questioned because her experiences of intimacy were not highly public or visible. The judge said:
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