From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom

Abstract

In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim for refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could ‘expect’ refugee applicants to ‘co-operate in their own protection’ by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by ‘choice’. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicant's claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and Westernised notions of ‘gayness’ as a template against which the applicants were judged.