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Sexual identity goes under asylum-seeker spotlight at human rights forum

By Patrick Nelson

Jeswynn Yogaratnam … asks “Are we LGBTI enough for asylum?” Jeswynn Yogaratnam … asks “Are we LGBTI enough for asylum?”

A Charles Darwin University human rights law academic raised questions that struck at the heart of Australian societal attitudes towards sexual identity and asylum seeking at the Third Asia-Pacific Outgames in Darwin recently.

As a keynote speaker at the Power through Action human rights forum, law lecturer Jeswynn Yogaratnam reflected on the processes used to determine the refugee status of lesbian, gay, bisexual, transgender and intersex people (LGBTI) in Australia and other signatories of the Refugee Convention 1951.

“Establishing the gender identity and sexual orientation of LGBTI people, and assessing whether they are being persecuted, are two complex but nonetheless critical sub-issues that need to be resolved when an individual’s claim is being assessed,” Mr Yogaratnam said.

“With reference to the United Nations High Commissioner for Refugee Guidelines, and case law … I demonstrated how the law has been applied, and how words such as ‘serious harm’, ‘well-founded fear’, and ‘persecution’ have been interpreted in the context of various findings.”

In the presentation “Are we LGBTI enough for asylum?” Mr Yogaratnam argued that the disquiet among those who wrestle with their sexual orientation and live in fear of persecution for being LGBTI, does not end upon fleeing their country of origin.

“The discrimination from which they have fled takes on another complexion when one seeks asylum and has to establish that they are members of a particular social group and thereby risk being persecuted,” he said.

“This can be a result of a lack of LGBTI cultural training among the case officers who process such claims, compounded by an unreasonable expectation of evidence by the adjudicators to prove sexual identity and the disregard for the human security needs of LGBTI claimants placed in detention.

“For example, there is no safe space in an offshore processing centre where an LGBTI person can freely be who they want to be. They still have to conceal their sexual identity from others in the centre.

“On the matter of concealing sexual orientation, previous Australian High Court and UK Supreme Court decisions have ruled that even if refugee applicants choose to conceal their sexual orientation in their country of origin, the fact that they are not exposing themselves to the LGBTI lifestyle does not mean that they have a lesser claim.

“The psychological distress – what we refer to as endogenous harm – can also contribute to the well-founded fear of being persecuted.”

Fellow CDU law lecturer Felicity Gerry QC also participated in the three-day forum, leading a workshop that examined some of the homophobic rhetoric used in public discourse during the Sochi Winter Games.