Andrew Loomes, ‘Claims To Refugee Protection On The Basis Of Sexual Orientation: Time To Change The Definition?’, 2021 UNSWLJ Student Series No 21-33

Abstract

In the past 30 years, a growing body of literature has critically reviewed the distinct challenges faced by asylum seekers when claiming protection from persecution on the basis of their sexual orientation (‘SO claimants’). A small number of comprehensive studies have reviewed the published reasons for refugee status determinations (‘RSDs’), often in appeal decisions, in five core jurisdictions including Australia, New Zealand, Canada, the United Kingdom, and the United States of America.[1] A growing number of smaller studies from a range of non-legal disciplines have also revealed the broader psychological and sociological implications of seeking refuge from persecution, including SO claims in Turkey,[2] France,[3] Germany,[4] and Brazil and Spain.[5] Collectively, these studies have identified a raft of distinct challenges faced by SO claimants that make it disproportionately difficult to gain protection, and make RSD a needlessly uncomfortable and inequitable experience. Given that the definition of a ‘refugee’ in the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’) does not explicitly refer to sexual orientation as a reason for seeking protection,[6] this article examines whether this definitional silence is the root of the challenges faced by SO claimants, and whether amending the definition would be an effective solution.

Most of the comprehensive studies that revealed the extent of challenges faced by SO claimants are now outdated by more than ten years. Therefore, there is a current and constant need to review up-to-date decision-making to assess the challenges that SO claimants currently face, and to track the development of identified issues against the responses launched to target them. This article responds to this need by examining 11 publicly available decisions from the Australian Administrative Appeals Tribunal,[7] handed down in the first six months of 2021. These decisions give a critical insight into current decision-making practices and issues facing SO claimants in Australia. This article argues that amending the refugee definition is not the most appropriate or targeted method of resolving the issues that SO claimants face, and instead may divert attention away from the poor and misguided decision-making that places SO claimants at greater risk of failing to secure protection.

This article will proceed as follows. After providing some contextual background and explaining the methodology of the study, this article examines on what grounds SO claimants commonly base their claims, given that sexual orientation is not mentioned in the refugee definition. Second, it discusses issues of credibility, with specific regard to the use of stereotypes, picture evidence, and the issues of inconsistency and delay. It then examines the challenge of meeting the definitional requirements of persecution and protection, and the issues of ‘discretion reasoning’ and country information. This article concludes with brief comments on the existing interpretive guidance available to decision-makers in assessing SO claims.