Dulloo, Romaan --- "Sexual Orientation And Gender Identity: Is It Time For An Updated Convention Definition?" [2021] UNSWLawJlStuS 27; (2021) UNSWLJ Student Series No 21-27

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SEXUAL ORIENTATION AND GENDER IDENTITY: IS IT TIME FOR AN UPDATED CONVENTION DEFINITION?

ROMAAN DULLOO

I INTRODUCTION

In response to discrimination and appalling human rights abuses worldwide, many members of the LGBTQI^[1] community have sought asylum in countries with stronger protective human rights frameworks and more progressive societal attitudes. A 2019 report by the United Nations identified anti-LGBTQI discrimination across multiple sectors of society such as education, employment, housing, health, religion, public spaces, and political discourse.^[2] In response to historical and modern discrimination, some States have sought to construe international refugee law and norms in a fashion that extends asylum and refugee protections to people fleeing persecution based on their sexual orientation and gender identity (‘SOGI’).^[3] While these developments are welcome, and have allowed for many people suffering from persecution a chance for resettlement - recognition and protection remains wholly inadequate at effectively addressing the needs of most LGBTQI asylum seekers and protecting them from persecution. The vast majority of refugee status determination (‘RSD’) processes across the world are informed by poor attitudes towards SOGI applicants and reflect a context of discrimination which inhibit their ability to provide asylum. Decision-making is hallmarked by discriminatory or ignorant attitudes that ignore the lived realities of LGBTQI asylum seekers^[4] and is made with reference to purely Western conceptions of gayness that are not easily compatible with the experiences of claimants generally coming from non-Western nations where there are more diffuse and different meanings of sexual orientation.^[5] As a result, there are many flaws which the current literature has already devoted scholarly attention to including but not limited to, the failure to consider different cultures and the public/private divide^[6], the difficulty in producing documentation^[7], expectations of concealment^[8], discrimination against bisexuals^[9] and the lack of legal infrastructure in certain jurisdictions.^[10]

One mooted solution to these systemic problems is to update the definition of refugee established by the 1951 Convention Relating to the Status of Refugees (‘Convention’)^[11] to include explicit reference to individuals from the LGBTI community as already exists for race, religion or nationality. This essay will investigate the effectiveness of this approach by determining its ability to protect LGBTI asylum seekers, recognising that in a context of limited resources and political capital, such an approach comes at the cost of viable alternatives. As such, this essay will first identify the current problems which affect LGBTQI asylum seekers who go through the process of RSD. Second, it will examine the costs and benefits of a formalised alteration to the Convention definition. Finally, it will conclude by evaluating the findings of that examination against the identified problems in order to determine whether this approach is the most suitable. Ultimately this essay determines that while there may be some merit in an updated Convention definition, such an approach fails to address the more meaningful barriers towards LGBTI people being granted asylum – and likely come at the cost of solutions which bolster protection more comprehensively.

The plight of individuals seeking asylum on the basis of SOGI is the subject of much scholarly work. Early analysis focused on highlighting the need to ensure people persecuted on these grounds were able to file successful claims for asylum and pushing against the narrowing of the definition by courts.^[12] Subsequent research has narrowed towards examining decisions by legal bodies in the RSD process, identifying problems in legal frameworks that have been mentioned above. However, scholarly attention regarding the expansion of the Convention definition has been confined to analysis of UNHCR Guidance Notes and Guidelines^[13] or expanding the definition of ‘persecution’ within this context.^[14] This essay seeks to fill a gap in the literature by analysing the viability of an expanded Convention definition, through a comparative analysis of solutions to the identified problems with SOGI claims.

II FLAWS IN THE INTERNATIONAL REFUGEE LAW REGIME^[15]

This section of the essay seeks to explain the challenges and structural barriers which SOGI claimants face in courts and tribunals across multiple jurisdictions. Specifically, it will interrogate the distinctive challenges brought forward by a generally Westernised context^[16], the inability to satisfactorily prove credibility as well as the concepts of internal flight and concealment. Notably, none of these factors directly relate to the issue of eligibility under the Convention definition – but rather are more deeply ingrained within the RSD processes of jurisdictions worldwide and would likely exist irrespective of explicit recognition of sexual orientation and gender identity under the Convention definition. Finally, it is important to note that State’s implementation of the RSD process ought to be pursued in a uniform manner across jurisdictions so as to meet to the standard of allowing individuals seeking protection to be provided with it.^[17]

A Westernised Processes

The relationship between the modern international refugee law regime and queer migration is informed by regional and cultural attitudes towards SOGI applicants.^[18] In the majority of relevant cases to this essay, the process involves Western decision makers coming to grips with the experiences and culture of applicants from non-Western contexts and applying it to the international and domestic legal frameworks for refugee law.^[19] For the purposes of RSD across many States, SOGI status applicants are seen to meet the “membership of a social group” criterion outlined by the Convention.^[20] However, given the diffuse and divergent definitions of both sexual orientation and gender identity - for example in many nations gender identity is not viewed through the same lens as in Western nations^[21] - decision makers are prone to invoking their own - and often parochial - Western conceptions of sexuality and gender.^[22] This leaves applicants vulnerable to cultural misunderstandings, insensitivity, stereotyping and an inability to properly articulate their reasons for seeking asylum before courts and tribunals. In a 2016 case, a man seeking asylum in Australia on the basis of his sexual orientation noted that his lack of English skills prevented him from socialising with the non-Nepalese population, and that he was too afraid to ask members of the Nepalese community about the gay lifestyle in Australia.^[23] In a 2011 case, the High Court in Ireland declined the application of a Nigerian man by citing that while homosexual activity is criminalised in Nigeria, the lack of evidence of any prosecution against homosexual men, demonstrating inconsistency with the UNCHR guidelines.^[24] In a 2006 decision, a Canadian tribunal showed how stereotypes and cultural misunderstanding can impact decision making when it held that a Nigerian applicant could not be homosexual as it would be ‘highly improbable’ a homosexual could father two sons and have been married, before the decision was ultimately overturned by Federal Court of Canada.^[25] When compounded by other structural obstacles such as a lack of access to documentation, language barriers (often claimants will not speak the local language, and the use of interpreters can result in mistranslations) and the fact that the burden proof usually lays with the asylum seeker^[26] it is evident that non-Western applicants face a unique set of challenges in Western courts and tribunals in comparison to other asylum seekers.

Another common invocation utilised against applicants is that their account of their experiences and personal history are ‘inconsistent with a homosexual narrative’.^[27] Berg and Millbank note the dangers of the calcification of this approach amongst western decision-makers, arguing that ‘Western understandings of minority sexual identity development have been deeply influenced by the idea of a linear process of self-knowledge moving from denial or confusion to ‘coming out’ as a self-actualised lesbian or gay man’.^[28] Crucially, models of sexual identity and development that are centred around Western experiences and contexts do not translate to other cultural contexts around the world.^[29] The vast majority of scholarly work conducted in this space focuses on white middle class men from the United States and gives little consideration to people of colour, women or any other non-Western expressions of minority sexualities.^[30] In RSD processes Berg and Millbank ‘found numerous instances of decision-makers drawing conclusions about the claimants’ sexuality based on over-generalisations’ including the notion that it is generally typical for gay men and lesbians to become aware of their sexuality during adolescence.^[31] Perhaps even more troublingly, it is impossible to demarcate the extent to which these Western norms impact decision-makers, as often these biases are completely subconscious and are unlikely to be clearly discernible from the reasons given by decision-makers courts and tribunals.

Similarly, for transgender applicants there is a pressure to identify as transgender from the outset of the RSD process even though they themselves are often in the nascent stages of processing their own transgender status.^[32] In a 2018 Australian case, a transgender child indicated that they ‘felt equally male and female on a gender slider test’ which resulted in the tribunal decision maker interpreting them as not transgender due to ‘fluctuation’ in their feelings.^[33] Bach notes that transgender asylum seekers attempting to resettle in the United Kingdom can often be unfamiliar with British transgender terminology and therefore are unable to properly describe themselves to the UK Border Agency, even with the assistance of interpreters.^[34] It is likely that as transgender identities gain greater cultural and legal recognition in Western nations, decision-makers will come to expect transgender applicants to be familiar with and utilise similar terminology and language in their own appeals despite not having been exposed to those identities and terminology themselves.

Western governments have long struggled to implement legal frameworks that are sensitive and understanding of different cultures and experiences which differ from entrenched Western norms. For SOGI applicants, this inability to create culturally sensitive legal institutions is combined with the prevalence of dominant norms regarding sexuality and gender to severely hamper their ability to access these institutions and RSD processes in a fair and equitable manner.

B Credibility Determination

The nature of determining both membership of a social group and the well-founded fear of persecution is extremely complex. For LGBTQI applicants, they face unique challenges with their testimonies that make their asylum claims potentially even more difficult.^[35] This stems from the difficulty associated with proving membership of a group of people for which only self-identification is required. Credibility can often be determinative for applicants, because a ‘weakened’ credibility can result in the ability for decision-makers to completely ignore any corroborating evidence presented by applicants^[36] such as, expert evidence, medical reports and witness testimony.^[37] Credibility determination can often be ignorant of the fact that SOGI applicants have a greater potential for inconsistencies in their stories due to ‘the necessity to be secretive and feelings of shame’.^[38] The UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity (‘SOGI Guidance Note’)^[39] notes that applicants can be reluctant to talk about intimate matters, particularly due to attitudes towards their sexual orientation in their country of origin, which may inhibit their ability to speak freely or accurately when giving an account of their experiences.^[40]

Consistency is perceived as one of the main indicators of credibility during SOGI applications by courts and tribunals. Inconsistency in an applicants’ recounting of their story and experiences can result in adverse findings against them, and their ability to demonstrate their sexual orientation as happened in a 2015 Australian case, where an applicant was deemed to have given significantly different accounts of their homosexual relationships in Nepal.^[41] A 2014 South African case, in which a Malawian national who had initially applied for asylum for economic reasons before later arguing that she was persecuted on the basis of her sexual orientation, considered whether she had been lying in her original claim and therefore would have to ‘live with that lie.’^[42] During the hearing the applicant stated she had ‘hid the real reason as I feared facing the same homophobic persecution in South Africa that I had suffered in Malawi.’^[43] Ultimately, the High Court decided that the Department of Home Affairs was required to re-interview the applicant so that they could determine the validity of her new asylum claim.^[44] The ruling in this case demonstrates that capacity of legal institutions to acknowledge the plight of many SOGI applicants and how it impacts their ability to deliver consistent accounts of their experiences. Yet the high level of consistency required in most Western contexts when it comes to recounting experiences and stories stands in stark contrast to this and is ultimately problematic for SOGI applicants as they have often been punished for non-conforming behaviour in the past, making them reluctant to share their experiences in a completely accurate, open and consistent manner. Applicants who have experienced high levels of trauma in the past are also victims of disassociation or post-traumatic stress disorder which can trigger memory loss in a high intensity environment such as what is found in the RSD process – especially when considering the high rates of sexual assault amongst SOGI applicants.^[45]

The tendency of administrative decision-makers in courts and tribunals to place a high value upon consistency when determining the credibility of applicants places a massive disadvantage upon SOGI applicants due to their unique backgrounds and experiences. It reflects the inability of Western legal institutions to be sensitive and accommodating of trauma, culture and lived experiences of oppression – and presents a continuing barrier to applicants seeking asylum.

C Internal Flight and Concealment

The final barrier to SOGI applicants which this essay interrogates is the relevance of the internal flight alternative and concealment approach in such claims. Güler describes the internal flight or relocation alterative as ‘a concept which entails that an asylum seeker can safely return to another part of his or her country where the risk of being persecuted would not be well-founded.’^[46] The 2012 UNHCR Guidelines on Claims to Refugee Status based on Sexual Orientation and/or Gender Identity (‘SOGI Guidelines)^[47] note that protection must be available to applicants in a ‘genuine and meaningful’ way.^[48] The concealment approach suggests that if SOGI applicants kept their sexuality or gender identity a secret and out of the public limelight then it should be considered they do not face a well-founded fear of persecution. However, as per both the SOGI Guidance Note (in paragraph 12) and the SOGI Guidelines (in paragraphs 31-32) States cannot ask asylum seekers to change or conceal their identity so as to avoid persecution.^[49]

In assessments of the internal flight alternative, country of origin information (‘COI’) is heavily relied upon by courts and tribunals. Worryingly, in Australia it is ‘well established that the selection of country information and weight placed on it are matters for the Tribunal’.^[50] This is a practice which has facilitated the selective and discriminatory application of COI by decision makers against SOGI applicants.^[51] In 1501021 (Refugee)^[52] a tribunal held that a Nepalese applicant did not face serious or significant harm on return to Nepal from anti-gay Maoists because of decisions made by Nepal’s Supreme Court, the drafting of new laws guaranteeing equal rights for sexual minorities and the formation of a committee to merely consider the implications of legalising same-sex marriage in the new Constitution.^[53] This information was deemed to outweigh the poor historical attitudes of Maoist rebels and current illiberal attitudes held by Maoist guerrillas which the applicant claimed put him at serious risk of persecution should he return home to Nepal.^[54] A similar reliance on ‘changing societal attitudes’ can be found in SZSVC v Minister for Immigration and Border Protection^[55] where a decision-maker was heavily influenced by ‘a considerable weight of country information which indicated a shift in conservative values in India’ despite the applicant stating that he had been beaten, harassed and threatened with a heterosexual arranged marriage because of his homosexuality.^[56] The concept of the internal flight alternative is applied widely by States^[57], and often allows for decision makers to deny SOGI applicants from claiming asylum due to the belief that they may seek refuge in urban locations within their country of origin. Berthelot argues that SOGI applicants face uniquely high evidential burdens in proving the unavailability of state protection and are subject to stereotypical assumptions about the ubiquitous presence of a gay urban lifestyle in their country of origin.^[58]

In respect to concealment, a case study conducted by Güler revealed that 14 of 15 cases across a number of Western jurisdictions were consistent with the SOGI Guidelines.^[59] However, it is worth noting that the Refugee Status Appeals Authority in New Zealand held that as long as a person acted discretely, they would not face any real risk of persecution because entering into a civil union with a man in New Zealand could be easily concealed from family and friends in his country of origin, Egypt.^[60] This highlights that the amount of discretion afforded to decision-makers in courts and tribunals allows for them to construct narratives and legal reasoning which acts to the detriment of SOGI applicants.

This section of the essay has sought to explore some of the major challenges that SOGI applicants face in the RSD process. It explains that these challenges are deeply ingrained within Western legal institutions, by recognising cultural divides, the discretion of decision-makers in contexts that are seeking to deny as many claims as possible, the prevalence of stereotyping and the difficulty of establishing credibility and maintaining consistent testimony. Through highlighting the core issues facing asylum seekers, it helps to establish the systemic problems an expanded Convention definition must curb in order to be deemed an effective solution.

III THE NECESSITY AND EFFECTIVENESS OF DEFINITIONAL AMENDMENT

Having established a set of prominent concerns which any proposed solution in this space must address, this section of the essay will interrogate the merits of amending the Convention to make explicit reference to SOGI applicants as a protected group. Therefore, this section will explore the extent to which SOGI applicants are already accounted for by the existing definition as applied by Western legal institutions, map out of the international political context in which such a solution is being proposed and identify the likely costs and benefits of adopting this approach.

A Existing Definitional Coverage

The Convention definition provides that individuals persecuted due to their ‘membership of a particular social group’ are eligible for refugee status. This purposely broad language has allowed for the definition to expand and develop over the passage of time without having to be constantly redrafted. Persecution on account of sexual orientation as grounds for recognition as a refugee was first held by a court in 1981.^[61] Weßels notes that ‘sexual orientation was accepted as the basis for a particular social group claim in most major refugee receiving nations by the mid-1990s.’^[62] The UNHCR Guidelines on Membership of Particular Social Group published in 2002 note that, ‘the term membership of a particular social group should be read in an evolutionary manner.’^[63] However, it took until 2008 for the UNHCR to directly tackle the issue when they released the SOGI Guidance Note which was then replaced by the SOGI Guidelines.

Despite this level of recognition, the question of whether LGBTQI individuals comprise a particular social group under the Convention still remains an issue. The UK Home Office argued that absent persecution, gay people cannot constitute a social group because they are not cohesive.^[64] In the case of transgender applicants, Berthelot notes that courts have narrowly conceived of gender identity which has resulted in a way which has delegitimised their lived experiences.^[65] Problematically, applicants that have expressed or demonstrated the willingness to medically transition are more likely to be successful in their claims – leaving doubt as to whether genderqueer or gender non-conforming people are covered underneath the Convention definition.^[66]

Weßels argues that the interpretation of ‘persecution’ is more relevant aspect of the Convention for SOGI applicants than the interpretation of ‘particular social group’.^[67] There are inconsistencies between countries as to how they construe persecution, which bears a large impact upon SOGI applicants. Saxena outlines the school of thought in the United States which requires an applicant to show persecutory intent, compared to other jurisdictions such as Canada and New Zealand which have a less onerous definition of a failure of governmental protection.^[68] Importantly, this issue concerns interpretation of a different term within the Convention and likely would not be addressed by the expansion of explicitly protected groups.

This section has sought explore the expansion of the refugee definition in relation to SOGI applicants within both international and domestic legal frameworks – and assess the implications towards the building of an effective protection framework. It is of particular importance to note the breadth of recognition amongst States of an evolutionary definition which incorporates claims based on SOGI.

B Contemporary International Political Context

Having traced the development of the definition and demonstrated the scope of a definition including SOGI – it is important to map out the contemporary international context. It is important to understand that different jurisdictions approach RSD through different methods, and that these differing approaches have notable practical implications upon the decisions made by asylum seekers.^[69] Furthermore, this discussion will be couched within a context where there is little appetite amongst many states around the world to expand the Convention or increase their total intake of refugees.^[70]

Perhaps the most influential factor in explaining shortcomings within the legal framework of Western nations is the general lack of political will and capital for increasing refugee intakes. The instances of discretion utilised by decision-makers highlighted above which have gone against the interests of claimants exist in a context where decision-makers are aware that their governments (often the ones who appointed them in the first place) are not in favour of taking in larger numbers of refugees. Recent developments in countries like Australia^[71], the UK^[72], Denmark^[73] and Sweden^[74] highlight the growing trend amongst previously high refugee intake Western nations to express a desire against higher intakes moving forward. For example, the recent toppling of the Afghanistan government by the Taliban is creating an immediate refugee crisis and is going to result in a number of LGBTQI people needing to seek immediate resettlement in order to escape persecution from the new extremist regime.^[75] However, given the apprehension of Western states towards increasing refugee intakes and the potential for high levels of scepticism of their claims by decisions-makers doubting their credibility due to the incentive to claim SOGI status may result in many LGBTQI individuals being forced to remain in Afghanistan and fearing for their lives.

Further, to compound the problems faced by SOGI applicants – their ability to escape persecution is inherently limited as compared to other asylum seekers because of restrictive laws and regressive attitudes towards LGBTQI individuals amongst many of the signatories to the Convention. Turkey, the nation which currently hosts the largest number of displaced persons in the world according to the UNHCR^[76], holds a regressive attitude towards LGBTQI rights exemplified by recent bans on Pride parades in Ankara and Istanbul^[77], and growing government hostility towards LGBTQI individuals who have migrated from the Middle East to Turkey.^[78] Other nations in the top five for displaced persons include Pakistan and Uganda, both of whom hold over 1 million displaced persons, nations that have very regressive LGBTQI laws. In Pakistan it is currently illegal to identify as LGBTQI and in Uganda violence, torture and execution of LGBTQI individuals is tolerated by the government.^[79] Currently, 71 jurisdictions criminalise same-sexual activity many of which are signatories to the Convention.^[80] All of this information serves to highlight that for SOGI applicants options are inherently limited, and that any amendment to the Convention which explicitly references LGBTQI individuals could have ramifications for asylum seekers beyond just SOGI applicants.

Finally, another problem with the current international political context is that the apprehension identified above amongst even ostensibly ‘LGBTQI friendly’ nations manifests into a lack of desire amongst signatories for any amendment to the Convention which will make it easier for asylum seekers to put forward successful claims. McAdam notes that a reason to not amend the Convention to include climate refugees is that it will ‘likely result in a far weaker protection framework, with less protection for all – including those it currently protects.’^[81] A similar rationale can be applied to this context, as will be further elaborated upon below.

C Costs and Benefits

Armed with a deeper understanding of the most significant problems faced by SOGI applicants, the current extent of coverage by the Convention definition and the international political context it is possible to evaluate the effectiveness of amending the definition to explicitly reference LGBTQI individuals. The first notable benefit would be the symbolic nature of such an amendment, and the impact that it may have upon the normative framework which exists across jurisdictions. Normative frameworks play a significant role in our society, shaping laws, attitudes and decisions and are often advanced through international treaties such as the Convention.^[82] By expanding the groups referenced in the definition, it has the potential to have a major signalling effect to countries, shift the Overton window and contribute towards strengthening the international framework in a fashion which increases protections for LGBTQI individuals. The next benefit to note, is that it could allow for a greater uniformity amongst signatory nations in the way they approach RSD – preventing countries from carving out their own interpretations of the ‘particular social group’. This again could lead to more determinations going in favour of SOGI applications. For example, this may allow for transgender applicants to be given greater recognition and acceptance by jurisdictions that have previously been hesitant about adopting an expansive definition of trans identity.

However, while these benefits may result in some minor victories, they are significantly outweighed by the harms of pursuing this approach. First, these benefits do little to address the most significant problems facing SOGI applicants in the RSD process – establishing credibility, Westernised processes, internal flight alternatives and stereotyping. Given the international context established above, pursuing this policy would likely require the expenditure of a significant amount of political capital by LGBTQI advocates and therefore likely come at the expense of other potential solutions to the identified problems. Second, when considering the number of signatories that have regressive attitudes and laws towards LGBTQI individuals there is the potential for at best, many countries to formally express a reservation to any such amendment and in the worst-case scenario, completely withdraw from the Convention all together. Many countries and their governments would face significant domestic political and religious pressure to not support this amendment which may result in them opting to lodge a reservation with the treaty. Reservations constitute a declaration by a State which reserves the right to not abide by certain provisions contained within a treaty. However, reservations are defined by Article 2.1(d) of the 1969 Vienna Convention on the Law of Treaties^[83] which notes that ‘reservations cannot be incompatible with the object and purpose of the treaty’.^[84] If it was determined that a reservation of this nature was incompatible with the object and purpose of the treaty (which is not out of the question given the purpose of the treaty is to increase protection of those seeking asylum from persecution) it could result in a number of countries opting to leave the treaty when faced with the prospect of having to ratify such an amendment. The results of this would be catastrophic for asylum seekers and the international refugee law regime as the Convention represents the cornerstone of the regime and facilitates the ability of persecuted individuals to seek asylum. This would have impacts not just on SOGI applicants, but all applicants looking to seek asylum for any reason – greatly increasing the scale of harm created by this approach. Finally, the public discourse which would surround such a proposal and the debate could result in serious harms to LGBTQI populations around the world. For example, the discourse which surrounded the 2016 same-sex marriage postal survey resulted in severe damage to the mental health of LGBTQI Australians.^[85] Similar outcomes are likely to result from the anti-LGBTQI discourse which will inevitably come from a push for this proposal, but in this instance the harms to LGBTQI individuals would be on a worldwide scale.

IV CONCLUSION

Directly addressing the major issues identified above through alternative solutions such as the mandating of greater diversity amongst decision-makers, lowering the reliance on COI by courts and tribunals and increasing access to legal representation for applicants would likely bolster protections for SOGI applicants during the RSD process in a more meaningful way than an amendment to the Convention. All of these solutions require the time, resources and effort on behalf of advocates which is otherwise taken up by pursuing an amendment to the Convention. When simply weighing up the benefits of the respective approaches, and their respective ability to directly address the most salient concerns identified in this response it is clear that not pursuing an amendment is likely optimal. However, when factoring in the additional harms created by pursuing an amendment the answer is made clearer. In fact, the potential risks and harm generated by an such an amendment are so great, that it is a likely better option to do nothing at all. By highlighting the likely decision-making of signatories with regressive LGBTQI laws and attitudes, the potential mental health impacts on LGBTQI populations, the mass expenditure of political capital, the tightening of refugee legal frameworks and the continuing presence of structural barriers within the RSD process this essay has explained comprehensively why updating the Convention to include explicit reference to sexual orientation and gender identity is not something those with the interests of the LGBTQI community in mind ought to advocate for. A change to the definition would be a pyrrhic victory, failing to gain any meaningful protections for LGBTI asylum seekers while creating serious unintended consequences which would impact all asylum seekers around the world.

V BIBLIOGRAPHY

A Articles/Books/Reports

Bach, Jhana, ‘Assessing Transgender Asylum Claims’ (2013) Forced Migration Review 34

Berg, Laurie and Jenni Millbank, ‘Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants’ (2009) 22(2) Journal of Refugee Studies 195

Berger, Miriam, ‘U.K. wants to send asylum seekers to offshore centers after Denmark passes similar law’ Washington Post (online, June 28 2020) <https://www.washingtonpost.com/world/2021/06/28/uk-wants-send-asylum-seekers-offshore-centers-after-denmark-passes-similar-law/>

Berthelot, William, ‘Sexual Orientation and Gender Identity As A Basis For Refugee Claims In Australia’ [2020] UNSW Law Journal Student Series No 20-01.

Coggan, Maggie, ‘Australia’s borders are shut, so where does that leave refugees?’ Pro Bono Australia (online, 28 July 2020), < https://probonoaustralia.com.au/news/2020/07/australias-borders-are-shut-so-where-does-that-leave-refugees/>

Cooper, Alex, ‘LGBTQ asylum-seekers subjugated to stereotyping and humiliation, rights group says’, NBC News (online, 30 November 2018) <https://www.nbcnews.com/feature/nbc-out/lgbtq-asylum-seekers-europe-subjected-stereotyping-humiliation-rights-group-says-n940216>

Fahim, Kareem and Antonia Noori Farzan, ‘Turkish police break up Pride parade with tear gas’ Washington Post (online, 26 June 2021) <https://www.washingtonpost.com/world/2021/06/26/istanbul-pride/>.

Fox, Katherine, ‘Implementing Hostility and Acceptance: LGBTQ Persecution, Rights, and Mobility in the Context of Western Moral Entrepreneurship’ in Arzu Güler et al. (eds), LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective (Springer, 2019) 11

Ghráinne, Brid Ní, ‘Safe Zones and the Internal Protection Alternative’ 69(2) International and Comparative Law Quarterly 33

Godfrey, Peter C., ‘Defining the Social Group In Asylum Proceedings: The Expansion Of The Social Group To Include A Broader Class Of Refugees’ (1994) 3(1) Journal of Law and Policy 257

Green, Duncan, How Change Happens (Oxford University Press, 2016)

Güler, Arzu, ‘Refugee Status Determination Process for LGBTI Asylum Seekers: (In) Consistencies of States’ Implementations with UNCHR’s Authorative Guidelines’ in Arzu Güler et al. (eds), LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective (Springer, 2019) 117

Gunes, Gokan , ‘Targeted by Erdogan, Turkey’s LGBT community face ‘tsunami of hate’ Yahoo News (online, 23 February 2021) < https://au.news.yahoo.com/targeted-erdogan-turkeys-lgbt-community-025332899.html>

Harrell-Bond, Barbara, ‘Building the infrastructure for the observance of refugee rights in the Global South’ (2008), 25(2), Refuge 1

Hooper, Louise and Livio Zilli, Refugee Status Claims Based on Sexual Orientation and Gender Identity (International Commission of Jurists., 2016)

LaViolette, Nicole, ‘UNHCR Guidance Note on Refugee Claims Relating to a Sexual Orientation and Gender Identity: A Critical Commentary’ (2010) 22(2) International Journal of Refugee Law 173

Madrigal-Borloz, Victor, Report on socio-cultural and economic inclusion of LGBT people (Report, No 6, 17 July 2019)

McAdam, Jane, ‘Seven reasons the UN Refugee Convention should not include climate refugees’, Sydney Morning Herald (online, 6 June 2017) < https://www.smh.com.au/opinion/seven-reasons-the-un-refugee-convention-should-not-include-climate-refugees-20170606-gwl8b4.html>

Millbank, Jenni, ‘A Preoccupation With Perversion: The British Response To Refugee Claims On The Basis Of Sexual Orientation, 1989-2003’ (2005) 14(1) Social & Legal Studies 115

Millbank, Jenni, ‘Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia’ [2002] MelbULawRw 7; (2002) 26 Melbourne University Law Review 144

Murray, David A.B., ‘Queer Forms: Producing Documentation in Sexual Orientation Refugee Cases’ (2016) 89(2) Anthropological Quarterly 465

Okporo, Edafe, ‘The Dire Plight of LGBTQ+ Afghan Refugees’ The Advocate (online, 16 August 2020) <https://www.advocate.com/commentary/2021/8/16/dire-plight-lgbtq-afghan-refugees>

Payton, Naith, ‘Uganda’s leading gay activist: We live in fear of violence, blackmail and extortion’ Pink News (online, 3 December 2014) <https://www.pinknews.co.uk/2014/12/03/ugandas-leading-gay-activist-we-live-in-fear-of-violence-blackmail-and-extortion/>

Rehaag, Sean, ‘Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada’ (2008) 53(1) McGill Law Journal 59

Saxena, Monica, ‘More Than Mere Semantics: The Case for an Expansive Definition of Persecution in Sexual Minority Asylum Claims’ (2006) 12(2) Michigan Journal of Gender & Law 331

Skydsgaard, Nikolaj, ‘Denmark passes law to process asylum seekers outside Europe’ Reuters (online, June 3 2021) <‘https://www.reuters.com/world/europe/denmark-agrees-law-deport-asylum-seekers-outside-europe-2021-06-03/>

Spijkerboer, Thomas, ‘Foreword’ in Arzu Güler et al (eds), LGBTI Asylum Seekers and Refugees from a Local and Political Perspective (2019, Springer)

Valentine, David, Imagining Transgender: An Ethnography of a Category (Duke University Press, 2007) 352

Verrelli, Stefano, et al, ‘Minority stress, social support, and the mental health of lesbian, gay, and bisexual Australians during the Australian Marriage Law Postal Survey’ (2019) 54(4) Australian Psychologist 336

Vogler, Stefan, ‘Determining Transgender: Adjudicating Gender Identity in U.S. Asylum Law’ (2019) 33(3) Gender & Society 440

Weßels, Janna , Sexual orientation in Refugee Status Determination (Refugee Studies Centre Working Paper Series No 74, April 2011) 8

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B Cases

1415903 (Refugee) [2015] AATA 3601

1501021 (Refugee) [2017] AATA 2224

1502512 (Refugee) [2016] AATA 4367

1506440 (Refugee) [2018] AATA 3216

1718354 (Refugee) [2021] AATA 1859

BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94

E v Refugee Appeals Tribunal [2011] IEHC 149

Esnat Maureen Makumba v. The Minister of Home Affairs and others [2014] SA 6183 (High Court)

Leke v Canada (Minister of Citizenship and Immigration) [2007] FC 848

NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10

Re Struk [2005] ScotsCS SCOH 30

Refugee Appeal No. 76566 [2010] Refugee Status Appeals Authority

SZSVC v Minister for Immigration and Border Protection [2014] FCCA 917

C Treaties

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1A(2) (‘Convention’) as amended by the Protocol Relating to the Status of Refugees, opened for signature 19 December 1966, entered into force 4 October 1967) 606 UNTS 267

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

D Other

D’epifanio, Marta ‘Credibility issues of LGBTI Asylum-Seekers in the refugee status determination’ (Master’s Thesis, Istanbul Bilgi University, 2011) 49

Map of Countries that Criminalise LGBT People’, Human Dignity Trust (Web Page) <https://www.humandignitytrust.org/lgbt-the-law/map-of-criminalisation>

‘Refugee Data Finder’, UNHCR (Web Page) < https://www.unhcr.org/refugee-statistics/

UNHCR, UNCHR Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity (2008)

UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (2002)

UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (2012)

UNCHR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1992)

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^[1] In this essay, ‘LGBTQI’ refers to individuals who identify as, or engage in practices often associated with lesbian, gay, bisexual, transgender and/or intersex identity.

^[2] Victor Madrigal-Borloz, Report on socio-cultural and economic inclusion of LGBT people (Report, No 6, 17 July 2019) 3-10.

^[3] Nicola LaViolette, ‘UNHCR Guidance Note on Refugee Claims Relating to a Sexual Orientation and Gender Identity: A Critical Commentary’ (2010) 22(2) International Journal of Refugee Law 173, 174.

^[4] Alex Cooper, ‘LGBTQ asylum-seekers subjugated to stereotyping and humiliation, rights group says’, NBC News (online, 30 November 2018) <https://www.nbcnews.com/feature/nbc-out/lgbtq-asylum-seekers-europe-subjected-stereotyping-humiliation-rights-group-says-n940216>.

^[5] See Jenni Millbank, ‘Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia’ [2002] MelbULawRw 7; (2002) 26 Melbourne University Law Review 144 and William Berthelot, ‘Sexual Orientation and Gender Identity As A Basis For Refugee Claims In Australia’ [2020] UNSW Law Journal Student Series No 20-01.

^[6] Millbank (n 5) 144.

^[7] David A.B. Murray, ‘Queer Forms: Producing Documentation in Sexual Orientation Refugee Cases’ (2016) 89(2) Anthropological Quarterly 465.

^[8] Jenni Millbank, ‘A Preoccupation With Perversion: The British Response To Refugee Claims On The Basis Of Sexual Orientation, 1989-2003’ (2005) 14(1) Social & Legal Studies 115.

^[9] Sean Rehaag, ‘Patrolling the Borders of Sexual Orientation: Bisexual Refugee Claims in Canada’ (2008) 53(1) McGill Law Journal 59.

^[10] Barbara Harrell-Bond, ‘Building the infrastructure for the observance of refugee rights in the Global South’ (2008), 25(2), Refuge 12.

^[11] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1A(2) (‘Convention’) as amended by the Protocol Relating to the Status of Refugees, opened for signature 19 December 1966, entered into force 4 October 1967) 606 UNTS 267.

^[12] Peter C. Godfrey, ‘Defining the Social Group In Asylum Proceedings: The Expansion Of The Social Group To Include A Broader Class Of Refugees’ (1994) 3(1) Journal of Law and Policy 257, 257-8.

^[13] LaViolette (n 3).

^[14] Monica Saxena, ‘More Than Mere Semantics: The Case for an Expansive Definition of Persecution in Sexual Minority Asylum Claims’ (2006) 12(2) Michigan Journal of Gender & Law 331.

^[15] The international refugee law regime in this context refers to the 1951 Convention, the 1967 Protocol and the 2012 UNHCR Guidelines on Claims to Refugee Status based on Sexual Orientation and/or Gender Identity.

^[16] Although there may be cases where SOGI applicants are seeking asylum in non-Western countries, the focus of this essay relates to applicants who are attempting to migrate to Western countries in Europe, North America and Oceania.

^[17] Arzu Güler, ‘Refugee Status Determination Process for LGBTI Asylum Seekers: (In) Consistencies of States’ Implementations with UNCHR’s Authorative Guidelines’ in Arzu Güler et al. (eds), LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective (Springer, 2019) 117, 118.

^[18] Katherine Fox, ‘Implementing Hostility and Acceptance: LGBTQ Persecution, Rights, and Mobility in the Context of Western Moral Entrepreneurship’ in Arzu Güler et al. (eds), LGBTI Asylum Seekers and Refugees from a Legal and Political Perspective (Springer, 2019) 11.

^[19] Millbank (n 5) 144.

^[20] 1718354 (Refugee) [2021] AATA 1859.

^[21] David Valentine, Imagining Transgender: An Ethnography of a Category (Duke University Press, 2007) 352.

^[22] Berthelot (n 5) 6.

^[23] 1502512 (Refugee) [2016] AATA 4367.

^[24] E v Refugee Appeals Tribunal [2011] IEHC 149, [8].

^[25] Leke v Canada (Minister of Citizenship and Immigration) [2007] FC 848, 866.

^[26] UNCHR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1992).

^[27] Güler (n 17) 126.

^[28] Laurie Berg and Jenni Millbank, ‘Constructing the Personal Narratives of Lesbian, Gay and Bisexual Asylum Claimants’ (2009) 22(2) Journal of Refugee Studies 195, 208.

^[29] Ibid 209.

^[30] Ibid.

^[31] Ibid.

^[32] Jhana Bach, ‘Assessing Transgender Asylum Claims’ (2013) Forced Migration Review 34, 34-35.

^[33] 1506440 (Refugee) [2018] AATA 3216, [57].

^[34] Bach (n 31) 34.

^[35] Güler (n 17) 126.

^[36] BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [44].

^[37] Ibid [60].

^[38] Marta D’epifanio, ‘Credibility issues of LGBTI Asylum-Seekers in the refugee status determination’ (Master’s Thesis, Istanbul Bilgi University, 2011) 49.

^[39] UNHCR, UNCHR Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity (2008), (‘SOGI Guidance Note’).

^[40] Ibid 38.

^[41] 1415903 (Refugee) [2015] AATA 3601, [40].

^[42] Esnat Maureen Makumba v. The Minister of Home Affairs and others [2014] SA 6183 (High Court), [11].

^[43] Ibid [3].

^[44] Güler (n 17) 130.

^[45] Berg and Millbank (n 27) 201.

^[46] Güler (n 17) 131.

^[47] UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (2012), (‘SOGI Guidelines’).

^[48] Ibid 51.

^[49] See UNHCR (n 39) 12 or UNHCR (n 47) 31-32.

^[50] NAHI v Minister for Immigration, Multicultural & Indigenous Affairs [2004] FCAFC 10, [11].

^[51] Berthelot (n 5) 15.

^[52] [2017] AATA 2224.

^[53] Ibid [102].

^[54] Ibid [102].

^[55] [2014] FCCA 917.

^[56] Ibid [27].

^[57] Brid Ní Ghráinne, ‘Safe Zones and the Internal Protection Alternative’ 69(2) International and Comparative Law Quarterly 335, 346.

^[58] Berthelot (n 5) 19.

^[59] Güler (n 17) 134.

^[60] Refugee Appeal No. 76566 [2010] Refugee Status Appeals Authority, [103].

^[61] Thomas Spijkerboer, ‘Foreword’ in Arzu Güler et al (eds), LGBTI Asylum Seekers and Refugees from a Local and Political Perspective (2019, Springer) vii.

^[62] Janna Weßels, Sexual orientation in Refugee Status Determination (Refugee Studies Centre Working Paper Series No 74, April 2011) 8.

^[63] UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (2002), (‘PSG Guidelines’).

^[64] Re Struk [2005] ScotsCS SCOH 30.

^[65] Berthelot (n 5) 6.

^[66] Stefan Vogler, ‘Determining Transgender: Adjudicating Gender Identity in U.S. Asylum Law’ (2019) 33(3) Gender & Society 440, 456.

^[67] Weßels (n 62) 13.

^[68] Saxena (n 14) 332.

^[69] Louise Hooper and Livio Zilli, Refugee Status Claims Based on Sexual Orientation and Gender Identity (International Commission of Jurists., 2016) ch 2.

^[70] Jane McAdam, ‘Seven reasons the UN Refugee Convention should not include climate refugees’, Sydney Morning Herald (online, 6 June 2017) < https://www.smh.com.au/opinion/seven-reasons-the-un-refugee-convention-should-not-include-climate-refugees-20170606-gwl8b4.html>.

^[71] See Maggie Coggan, ‘Australia’s borders are shut, so where does that leave refugees?’ Pro Bono Australia (online, 28 July 2020), < https://probonoaustralia.com.au/news/2020/07/australias-borders-are-shut-so-where-does-that-leave-refugees/>.

^[72] See Miriam Berger, ‘U.K. wants to send asylum seekers to offshore centers after Denmark passes similar law’ Washington Post (online, June 28 2020) <https://www.washingtonpost.com/world/2021/06/28/uk-wants-send-asylum-seekers-offshore-centers-after-denmark-passes-similar-law/>.

^[73] See Nikolaj Skydsgaard, ‘Denmark passes law to process asylum seekers outside Europe’ Reuters (online, June 3 2021) <‘https://www.reuters.com/world/europe/denmark-agrees-law-deport-asylum-seekers-outside-europe-2021-06-03/>.

^[74] See Anders Widfeldt, ‘Why Sweden is tightening its borders after years of welcoming migrants?’, The Conversation (online, January 12 2016) <https://theconversation.com/why-is-sweden-tightening-its-borders-after-years-of-welcoming-migrants-53000>.

^[75] Edafe Okporo, ‘The Dire Plight of LGBTQ+ Afghan Refugees’ The Advocate (online, 16 August 2020) <https://www.advocate.com/commentary/2021/8/16/dire-plight-lgbtq-afghan-refugees>.

^[76] ‘Refugee Data Finder’, UNHCR (Web Page) < https://www.unhcr.org/refugee-statistics/>.

^[77] Kareem Fahim and Antonia Noori Farzan, ‘Turkish police break up Pride parade with tear gas’ Washington Post (online, 26 June 2021) <https://www.washingtonpost.com/world/2021/06/26/istanbul-pride/>.

^[78] Gokan Gunes, ‘Targeted by Erdogan, Turkey’s LGBT community face ‘tsunami of hate’ Yahoo News (online, 23 February 2021) < https://au.news.yahoo.com/targeted-erdogan-turkeys-lgbt-community-025332899.html>.

^[79] Naith Payton, ‘Uganda’s leading gay activist: We live in fear of violence, blackmail and extortion’ Pink News (online, 3 December 2014) < https://www.pinknews.co.uk/2014/12/03/ugandas-leading-gay-activist-we-live-in-fear-of-violence-blackmail-and-extortion/>.

^[80] ‘Map of Countries that Criminalise LGBT People’, Human Dignity Trust (Web Page) <https://www.humandignitytrust.org/lgbt-the-law/map-of-criminalisation/>.

^[81] McAdam (n 70).

^[82] Duncan Green, How Change Happens (Oxford University Press, 2016) 48.

^[83] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

^[84] Ibid art 2.1(d).

^[85] Stefano Verrelli, et al, ‘Minority stress, social support, and the mental health of lesbian, gay, and bisexual Australians during the Australian Marriage Law Postal Survey’ (2019) 54(4) Australian Psychologist 336, 337.