Past and Present: From Misunderstanding Sexuality to Misunderstanding Gender Identity in Australian Refugee Claims

Abstract

This paper analyses the past and present treatment of people applying for asylum on the grounds of their sexual orientation in Australia. Despite having relatively progressive legislative measures for lesbian, gay, bisexual, transgender, and intersex (LGBTI) citizens, the treatment of refugees applying for refugee status based on their sexual orientation has historically been dogged by questionable and biased decision-making. It is argued that early claims were initially plagued by a number of issues, notably the employment of discretion reasoning and errors in credibility assessment. The second section of this paper takes a deeper look at claims made in Australia between 2016 and mid-2018 to assess whether there has been any improvement in decision-making. It is argued that Australian decision-making for sexual orientation-based claims has demonstrably improved, encouraged by the introduction of new departmental guidelines for assessing such claims in 2016. However, it emerged in later claims that some decision-makers continue to confuse sexuality and gender identity, demonstrating that issues remain for applicants in Australia. Ultimately, it is argued that in order to continue to improve decision-making, the Australian Immigration Department and tribunals need to be more transparent about the development and implementation of decision-making guidelines.