Burdened by Proof: How the Australian Refugee Review Tribunal has Failed Lesbian and Gay Asylum Seekers

Abstract

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