Burdened by Proof: How the Australian Refugee Review Tribunal has Failed Lesbian and Gay Asylum Seekers
| Author | Catherine Dauvergne,Jenni Millbank |
| Published date | 01 June 2003 |
| Date | 01 June 2003 |
| DOI | http://doi.org/10.22145/flr.31.2.2 |
| Subject Matter | Article |
BURDENED BY PROOF:
HOW THE AUSTRALIAN REFUGEE REVIEW TRIBUNAL
HAS FAILED LESBIAN AND GAY ASYLUM SEEKERS
Catherine Dauvergne
∗
∗∗
∗
and Jenni Millbank**
Our argument in this paper is that the evidentiary practices and procedures that have
been developed by the Australian Refugee Review Tribunal are operating at a
routinely low standard. Such practices contribute to decisions that are manifestly
unfair and potentially wrong in law. A recent working paper from the Office of the
United Nations High Commissioner for Refugees ('the UNHCR') notes that evidentiary
questions have been 'largely ignored in the academic literature.'1 Our conclusions are
drawn from our detailed study of more than 300 refugee tribunal decisions made in
Canada and Australia in response to asylum claims brought by lesbians and gay men.
Our overall frame of inquiry in this study considers how the respective tribunals
grapple with the issue of identity, the complex cluster of dilemmas around the
public/private divide, the inability of many decision-makers to imagine the 'other'
who stands before them in these claims, and the way this area of law encodes and
reflects homophobic stereotyping.2 In developing these conclusions, and in particular
in examining the marked differences we found between the Australian and the
Canadian decisions, we found that the role played by evidentiary practices of the
respective tribunals was vital. This article focuses upon how evidence is dealt with in
the Australian Tribunal. The comparative data from our study forms a back drop to the
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∗ Canada Research Chair in Migration Law, Associate Professor, Faculty of Law, University
of British Columbia. This project was supported by a grant from the University of Sydney
Faculty of Law Legal Scholarship Support Fund.
** Senior Lecturer, Faculty of Law, University of Sydney. An earlier version of this paper was
presented at the Amnesty International Global Human Rights Conference, Sydney, 31 October
2002. Thanks to Tiffany Hambley for her research assistance on this paper, and to Arlie
Loughnan and Georgina Perry for research assistance on earlier aspects of the project. For
comments on an earlier draft, our thanks to Mary Crock and another reader.
1 Brian Gorlick, Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee
Status (2002) UNHCR Working Paper 68, 2 <www.unhrc.ch> at 5 February 2003.
2 See Jenni Millbank, 'Imagining Otherness: Refugee Claims on the Basis of Sexuality in
Canada and Australia' (2002) 26 Melbourne University Law Review 144; Catherine Dauvergne
and Jenni Millbank, 'Before the High Court: Applicants S396/2002 and S395/2002, a Gay
Refugee Couple from Bangladesh' (2003) 25 Sydney Law Review 97.
300 Federal Law Review Volume 31
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analysis in this paper, which is focused specifically on the Australian decisions to
date.3
We develop our argument first by considering the place of evidence in a refugee
determination context. We then look at the range of evidence considered by the
Refugee Review Tribunal ('RRT') and discuss the unique and problematic role played
by evidence provided by Australia's Department of Foreign Affairs and Trade ('DFAT')
and evidence taken from the Spartacus International Gay Guide ('Spartacus'). The
following section of the paper moves on from considering what is used as evidence to
an analysis of inappropriate uses of evidence in the decision-making process.
Inappropriate uses of evidence included: a markedly gender-blind approach to
evidence, selective use of available evidence, and an indiscriminate approach to
questions of weight and relevance of evidence. We then explore alternative approaches
to evidence in a detailed study of decisions on a select group of countries. The final
section of the paper outlines a series of recommendations for improving the
evidentiary practices of the RRT.
Questions of evidence may nevertheless be second order concerns in refugee claims
on the basis of sexual orientation. Even if decision-makers had access to the best
available independent evidence and weighed it in the most judicious fashion, lesbians
and gay men would still face formidable hurdles in the refugee decision-making
process. One of the reasons for writing about evidentiary concerns, however, is that the
issues that arise in the use of evidence are both glaring and solvable. Without
undertaking fundamental reform or investing considerably more resources, the RRT
could do a significantly better job with available evidence. The Canadian Tribunal
provides an example of a decision-making process that produces markedly different,
and demonstrably fairer, results in a substantially similar setting. The Canadian
evidentiary databases are available to Australian decision-makers, as are Canadian
lessons about evidentiary procedures such as 'credibility testing'. One of our aims here
is to strongly argue the case for better grounded refugee decision-making in Australia.
Better evidence and better ways of managing the evidence available would make it
easier to craft solutions to the problems of flawed reasoning that are at the heart of the
dramatic and demonstrable failure by the RRT to grapple with claims on the basis of
sexual orientation.
THE PARAMETERS OF OUR COMPARATIVE STUDY
Since the mid 1990s, it has been accepted in many Western refugee-receiving nations
that lesbians and gay men may belong to a 'particular social group'4 and so are eligible
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3 This paper includes qualitative analysis of Australian cases to 31 December 2002.
4 The legal definition of a refugee is a standard one, drawn from the Refugee Convention.
Article 1A(2) of the Convention defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence, is unable or, owing to
such fear, is unwilling to return to it.
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS
150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of
2003 Burdened by Proof 301
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refugee claimants if they can demonstrate a well-founded fear of persecution based
upon that membership.5 The elements of decisions are thus deceptively simple: are
lesbians and gay men a particular social group in the sending country?6 Is the person
lesbian or gay? Are they, or will they be, in danger of persecution on that basis?
In light of Australia's reputation in refugee law — which is currently dominated by
mandatory detention of asylum seekers who have entered without valid visas and the
turning away of boats to non-signatory countries — it is hard to recall that Australia
had, until recently, a very positive humanitarian image. Canada and Australia have
previously been described as 'leading the way' in recognising asylum claims based on
sexual orientation.7 By the time the United Kingdom ('UK') had even accepted that
lesbians and gay men were eligible to apply for refugee status, Australia and Canada
had between them evaluated hundreds of c laims on the basis of sexual orientation.8
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Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October
1967) ('the Convention').
5 In Canada, the fi rst case to accept that sexual orientation constitutes a n eligible social group
was in 1991 (although note this case contained a sharp dissent): Re R (UW) [1991] CRDD
No 501 (QL), IRB Reference U91-03331 (Rotman, Leistra, 7 October 1991). Several more
cases were decided at tribunal level before this approach was confirmed at judicial level in
obiter: Ward v Attorney-General (Canada) (1993) 2 SCR 689 [78]. Likewise in Australia, the
first case was in 1994: RRT Reference N93/00593 (Unreported, Tsamenyi, 25 January 1994),
and some years passed (during which cases usually referred to Ward) before this view was
judicially confirmed, again in obiter: Applicant A v MIEA (1997) 190 CLR 225. In 1995, the
UNHCR accepted that lesbians and gay men can constitute members of a 'particular social
group' and be eligible for protection under the terms of the Convention: Amnesty
International, Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment Based on Sexual
Identity, 2001, 49 (available online at <www.amnesty.org>); see also UNHCR, Protecting
Refugees: Questions and Answers (2001) <www.unhcr.ch> at 1 April 2002. Since then a
number of European nations, such as Austria, Denmark, Germany, the Netherlands,
Finland and Sweden have accepted lesbian and gay asylum seekers as members of a
'particular social group'. Amnesty notes that by 2001 at least 18 countries had granted
asylum on the grounds of sexuality-related persecution: Amnesty International, above n 5.
Note that the European Parlia ment ('EP') voted to broaden the draft European Commis sion
Directive on the definition of a refugee. The EP added sexual orientation, gender identity
and HIV status as elements of the particular social group category. The final decision
remains with the European Council of Ministers, but if passed would cover all 25 member
nations; see 'Justice and Home Affairs: European Parliament Backs a Broader Definition of
Refugee' European Report (Brussels) 23 October 2002, 472.
6 This step has been undertaken in a very cursory fashion in the Australian cases: see
Dauvergne and Millbank, 'Before the High Court', above n 2.
7 John Russ, 'The Gap Between Asylum Ideals and Domestic Reality: Evaluating Human
Rights Conditions for Gay Americans by the United States' Own Progressive Asylum
Standards' (1998) 4 UC Davis International Journal of Law and Policy 29, 55.
8 For a discussion of the early Canadian case law, see Nicole LaViolette, 'The Immutable
Refugee: Sexual Orientation in Canada (AG) v Ward' (1997) 55 University of Toronto Faculty of
Law Review 1. On early Australian case law, see Jenni Millbank, 'Fear of Persecution or Just
a Queer Feeling? Refugee Status and Sexual Orientation in Australia' (1995) 20 Alternative
Law Journal 261, and Kristen Walker, 'The Importance of Being Out: Sexuality and Refugee
Status' (1996) 18 Sydney Law Review 568. For an overview of the social group category and
sexuality in the UK, Canada, United States of America ('US'), New Zealand and Australia,
see Kristen Walker, 'Sexuality and Refugee Status in Australia' (2000) 12 International
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