“Everyone wants you when you’re bi…”

That’s what Living Colour said in a song a few years back. But it seems that they might have been wrong.

I was surprised by the account of a recent decision of the Refugee Review Tribunal (discovered via Anonymous Lefty). Ali Humayun sought asylum on the basis that he was a bisexual Christian and would be persecuted if he was returned to Pakistan. He had commenced a relationship with a Mr Lorenzo after being detained in the Villawood detention centre.

Giles Short, the Refugee Review Tribunal member found:

… I do not accept that the Applicant is in fact bisexual in sexual orientation as he claims. I consider that his relationship with Mr Lorenzo is simply the product of the situation where only partners of the same sex are available and says nothing about his sexual orientation. I am not satisfied that the Applicant’s conduct in telling his family in Pakistan about his claimed bisexuality and his claimed relationship with Mr Lorenzo was engaged in otherwise than for the purpose of strengthening his claim to be a refugee… Since I do not accept that the Applicant is in fact bisexual in sexual orientation, as he claims … I do not accept that, if the Applicant returns to Pakistan now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his actual or perceived membership of the particular social group of homosexuals or bisexuals in Pakistan.

Huh? The Member accepted that Mr Humayun has had sexual relationships with both men and women, but then refused to accept that he was “really” bisexual? Seems a little illogical to me. Does it matter that the cause of Mr Humayun’s relationship with Mr Lorenzo is his incarceration? Does it matter that Mr Humayun’s relationship with Mr Lorenzo may be simply a casual one? I would suggest that neither of these things are relevant. What is important is whether Mr Humayun would be persecuted for entering into a relationship with Mr Lorenzo when he returns to Pakistan (regardless of the cause of the relationship and the duration and seriousness of it).

The concern seems to be that refugees should be deterred from entering into short term homosexual relationships simply to gain refugee status.

I have since looked at the decision of the Federal Magistrates’ Court which reviewed and upheld Mr Short’s determination, and it sheds more light on the real reasons behind the decision.

First, Mr Humayun also made an unconvincing argument that he had converted to Christianity after 9/11, but showed no knowledge of the Christian faith, and he did not realise that homosexuality was frowned upon by the church of which he claimed to be a member. Therefore, it seems that his credibility was limited. Secondly, Mr Humayun is a heroin addict.

It seems to me that Mr Short should have concluded either:

(a) that Mr Humayun had entered into a supposed homosexual relationship as a sham to gain refugee status, and his lack of credibility on the issue of his conversion to Christianity also cast doubt on his evidence with respect to his relationship with Mr Lorenzo; or

(b) that Mr Humayun was bisexual, but had over-emphasised the seriousness of his relationship with Mr Lorenzo for the purposes of his application.

If the conclusion is (b), even if Mr Humayun’s relationship with Mr Lorenzo is a casual one created by the circumstances of incarceration, there remains a question of whether he would be persecuted in Pakistan because of the relationship. You can’t say “He is bisexual, but it’s not “real” bisexuality, even though he has had a sexual relationship with a man.” It’s just a matter of definition.

The other question which springs to mind is – if the relationship was caused by the circumstances of incarceration, could Mr Humayun argue that the Australian government had “caused” his bisexuality and thus ought to wear the consequences…?

If I were a refugee who had been genuinely persecuted because of my homosexuality, I would be angry if Mr Humayun had cynically claimed to be bisexual and had entered into a relationship with Mr Lorenzo solely for the purposes of getting refugee status. On the other hand, if he was in a relationship with Mr Lorenzo for more genuine reasons (even if those reasons were created by circumstance) and he would be persecuted for it when he returned home, I would want to see him protected from persecution.

If the Australian government wants to give a message that false claims with regard to sexuality will not be tolerated, it would be better to just say it outright.

Advertisements

14 Comments

Filed under immigration, law, sex, sexuality, tolerance

14 responses to ““Everyone wants you when you’re bi…”

  1. This seems to me to be rather like the instances of marriages of convenience to me. As you point out the chap in question does seem to have some serious credibility issues though.

  2. As you say, Iain, if it’s simply a “marriage of convenience”, it should be treated as such!

  3. fairlane

    I see this as a Catch 22. On one hand it reminds me of how some Christians, here in the States, “decided” that “all” gay people are not “really” gay. How do you tell someone who they are or who they are not? Even in Mr. Humayun’s case, sometimes liars tell the truth.

    And I can see why he’d lie about being Christian. Australia is a predominatly Christian nation. And also Muslims are not real popular at this moment.

    But what if he turned out to be a terrorist?

    This “War on Terror” has created quite a moral pickle.

  4. Hey, just wanted to say welcome to WordPress – I think it’s a great package. The site looks good. If you’re not using it yet I strongly recommend the Akismet spam plugin – it is pretty well 100% effective in weeding out spam in comments and trackbacks.

    Alas due to my, er, employment situation, I can’t really comment on the above story…

  5. Fairlane,

    My feeling is that they don’t want this guy out because of his religious background or because he might be a terrorist. They want him out merely because he overstayed his visa (doesn’t matter what creed or colour you are, you’ll be out on your butt unless you’ve got a good reason to stay).

    However, the fact that he’s a drug addict certainly wouldn’t add to his case – from a pragmatic point of view, the government would want to get him out of here and let his home country deal with his problems instead…

    You’re right, though, the “war on terror” does present some pretty moral pickles. How far do you infringe on some individual freedoms to protect other individual and societal freedoms?

    LE

  6. Paul,

    Thanks!

    The new set up is great. Still have to do some tinkering. I do have Akismet set up.

    I still can’t really comment on some things if I think it might embarrass my former or present employers.

    I don’t have much experience of the Federal jurisdiction. When it comes to State law, however…let’s just say that one of my colleagues used to call me “The Walking Supreme Court Rule Book”…what a sad, sad compliment to receive.

  7. Pingback: Club Troppo » Missing Link - Budget Edition

  8. OTT

    hmm – how does one go about making a finding of fact when the fact relates to an individual’s sexuality?

    I do not understand why Mr Short had to make a finding about Mr Humayun’s sexual orientation at all, if (1) the fact of Mr Humayun’s past sexual relationships showed him to have had relations with women and men or (2) the real issue was his credibility or heroin addiction (ie. character).

  9. OTT,

    I agree totally. Why didn’t he just decide that Mr Humayun’s credibility was limited and leave it at that?

    LE

  10. Ali is gay. The RRT is homophobic. If a refugee were to form a heterosexual relationship in detention, would this be judged to be “situational heterosexuality”, and that deep down they are really gay? Of course not.

    For more information on the long history of homophobia in the Refugee Review Tribunal, see the paper “Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia”

    http://www.austlii.edu.au/au/journals/MULR/2002/7.html

    He has to stay in Australia because if he is deported to Pakistan he will be murdered. He has to get out of detention because it is injurious to his mental health. There is no other route but to free him and all the refugees.

  11. marcellous

    I first learnt of Mr Humayun’s case when he took it to Community Action Against Homophobia and published his story (well, some of his story) on a website run by people who visit Villawood. It was only when the story reached the Fairfax press, however, that I linked it to the judgment of the Federal Magistrates Court which includes details of the Refugee Review Tribunal’s decision.

    Mr Short might be right about Mr Humayan, he might be wrong. I am not crazy about the Refugee Review Tribunal. They have no security of tenure and it is a reasonable surmise that any members who show signs of being “softies” will not be re-appointed. However, Anonymous lefty’s barb, that Mr Short apparently has a “gaydar so powerful that it can determine a person’s sexual orientation before they know it themselves” assumes that Mr Humayan was telling the truth, but this overlooks the unfortunate truth that Mr Humayan had every reason to lie.

    Reaction like this led me to belatedly write about it myself at: http://marcellous.wordpress.com/2007/05/18/humayun/

    That link contains a little more background information than your entry, which is why I have been so shameless as to give the link.

    I agree with you that Mr Humayan’s real problem is that he was not believed in relation a number of his claims.

    I’m not quite sure, though, what you mean by saying:

    “If the Australian government wants to give a message that false claims with regard to sexuality will not be tolerated, it would be better to just say it outright.”

    What else can the government say other than say: if your claim is genuine, you get to stay; if it isn’t, you don’t? That’s what they do say.

    The sentence in the tribunal’s decision which has attracted the most criticism is the one you emphasise. Although it is not well expressed, I don’t really see the problem with the central point, which is that just the fact that a man has had sex with another man in a detention facility (or even a relationship) does not mean he is gay or bisexual in the necessary sense, which is that he would, when out of the detention facility and back in his home country, continue to be a person who has sex with men so that he would belong to a group which would face persecution.

    To this, Mr Humayun had two answers. First, that it wasn’t just sex, that he had a loving relationship with Mr Lorenzo. This the tribunal member did not accept; he found that the statements about the relationship were “contrived.” The fact that Mr Lorenzo, who is no longer in detention, still visits Mr Humayun might or might not lead you to think with the benefit of hindsight that the tribunal got that wrong, although it may say more about Mr Lorenzo than it does about Mr Humayun.

    Secondly, Mr Humayun said that he would now be persecuted because he had told his family about it. The tribunal member held that this was conduct by Mr Humayun which was designed to strengthen his claim to refugee status, which therefore had to be disregarded under section 98(3) of the Act. This section actually goes further than that, because it works the other way round. Conduct in Australia must be disregarded unless the person satisfies the Minister (or in this case, the Tribunal) that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. This is the section which really bites, because it means that a person really could now be facing persecution on his return, but if the person cannot establish that they have not created that situation by their own acts for the purpose of preventing their return, the law contemplates that they will still be sent back, absent a reconsideration on compassionate grounds by the minister. (Compare with the case of Chen Yonglin, the Chinese diplomat who was allowed to stay in China after making allegations about espionage in Australia by the Chinese government and its persecution of the Falun Gong.)

    OTT’s question: “how does one go about making a finding of fact when the fact relates to an individual’s sexuality?” is a good question. The problem is that if someone can claim to be a refugee by making a statement about their sexuality, somebody does have to make that finding of fact. Your solution, that Mr Short should simply have said that he didn’t believe Mr Humayun and left it at that, doesn’t really avoid this necessity. There was (presumably uncontrovertible) evidence that Mr Humayun did have a sexual relationship with Mr Lorenzo, and Mr Short had to consider what conclusion should be drawn from that.

  12. marcellous

    Correction: on checking, I see that Chen Yonglin did end up applying for a refugee visa, after his application for territorial asylum was rejected.

  13. Marcellous,

    Thank for explaining s 98(3) – that explains the context a lot better. I do not have an in-depth knowledge of migration law. Your post was good – it gave me more background on facts of the matter.

    To explain my comment: “If the Australian government wants to give a message that false claims with regard to sexuality will not be tolerated, it would be better to just say it outright.”

    I read the Tribunal’s decision as saying that Mr Humayun had a genuine relationship with Mr Lorenzo, but that it was created by “circumstance”, and was therefore not valid. I don’t see why the Member had to make the comment about the relationship being created by “circumstance”. Surely that’s irrelevant to the decision?

    All the Member had to do was consider whether it was a genuine relationship or a relationship entered into for the purpose of gaining refugee status. The decision should have stopped there. Mr Short should not have gone on to say: “I consider that his [Humayun’s] relationship with Mr Lorenzo is simply the product of the situation where only partners of the same sex are available and says nothing about his sexual orientation.”

    LE

  14. marcellous

    Mr Short did find that some of the evidence about the relationship and its seriousness was “contrived.” However, the problem is that the final question to be considered is not simply whether Mr Humayun had a genuine relationship with Mr Lorenzo, but whether that relationship is evidence of a sexual orientation which would lead to Mr Humayun being persecuted in Pakistan, subject to the twist that anything that he has done in Australia (such as telling his family about the relationship or now, of course, publicising his case) is to be disregarded unless he can satisfy the tribunal that he did not do that for the purpose of strengthening his refugee application.

    I agree that Mr Short should not have said what he said, because it is really entering into the territory of speculation and folk-psychology and implies a positive conclusion about Mr Humayun’s motivation in entering the relationship (there were no women available) whereas the real question was not why Mr Humayun entered into the relationship, but what that relationship said about whether Mr Humayun would face persecution in Pakistan (with the section 98(3) twist).

    Despite the famous judicial statement that “the state of a man’s mind is as much a fact as the state of his digestion” this is very difficult terrain.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s