Sexuality and Refugee Status in Australia

Abstract

In the last few years there has been a dramatic increase in claims for refugee status in Australia based on sexuality, particularly by gay men and lesbians. This article seeks to assess the development of Australian jurisprudence in this area, taking account also of jurisprudence from the UK, the US, Canada and New Zealand. The article focuses on two key issues: "membership of a particular social group" as a basis for claiming refugee status; and the meaning of "persecution". Part 1 describes the Australian legal framework, Part 2 considers whether "queer identity" can constitute a particular social group within the meaning of the 1951 Convention, and Part 3 examines persecution in the context of claims based on these grounds. After reviewing relevant factors and issues, the author concludes that, although the recognition by the courts and the Refugee Review Tribunal (RRT) that sexual minorities may constitute particular social groups is appropriate, the treatment of the concept of persecution has, in many cases, been problematic. The author offers a number of suggestions as to how the question of persecution should be approached in the future.