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When it comes to criticisms of the Tribunal, it's the treatment of gay refugees that really stands out, say its critics. Success rates for gay asylum seekers are pitifully low, according to Professor Jenni Millbank, of the University of Technology Sydney, who has researched the Tribunal's approach to sexuality cases for almost two decades. A 2003 study by Millbank showed that at most only 20 per cent of gay refugees succeed in receiving a protection visa. "There's a worldwide impulse with panels to fast-track and cost-save, rather than make sensible, thorough decisions," she says.

While no one is suggesting the Tribunal's job is straightforward – having to decide, for instance, whether the approximately 100 asylum seekers who apply for a protection visa each year on the basis that they're gay are telling the truth – there are criticisms about Tribunal officials' lack of qualifications and training in refugee issues. Tribunal officials have long been accused of judging applicants based on a slew of Western gay stereotypes, such as effeminate manner or dress. In one notorious case, an applicant was deemed not gay after failing questions about Madonna, Bette Midler, Oscar Wilde and Greco-Roman wrestling. The man barely spoke English and was mystified by the topics. "I don't understand it," he said to his interviewer. "I'm sorry."


When in 2004 his case came before the High Court on appeal (after the Federal Court had first ruled against the applicant), the justices were staggered by the line of questioning used by the Tribunal, describing it as very odd, and almost bordering on the bizarre. "Madonna, Bette Midler and so on are phenomena of Western culture," declared Justice Michael Kirby at the time. "In Iran, where there is death for some people who are homosexuals, these are not in the forefront of the mind. Survival is." (The applicant won the High Court case and was later granted asylum by the incoming Labor federal government.)


More recent cases don't give great reason for comfort. Last year, a man from Bangladesh was rejected in part because he was unable to correctly pronounce or spell the name of a Sydney gay club he'd visited called the Stonewall, according to Tribunal documents – which incorrectly referred to the nightclub as a "day venue". In a similar 2014 case, an asylum seeker was told he wasn't gay because, although he described having two monogamous relationships, he hadn't "explored his homosexuality" by going to Sydney's gay bars, and had little knowledge of Oxford Street.


Questions about sexual encounters can centre on who is the "top", and who is the "bottom", or the use of lubricant. Some desperate applicants even resort to offering videos or images of themselves having sex to prove their case. Some officials consider this material and others reject it. Because there are no guidelines for dealing with LGBTQI applicants, a Tribunal member is at liberty to ask pretty much any question they wish, for this is no court room.


Ahmer*, a gay refugee from Pakistan, spent more than a year preparing for his Tribunal hearing. His migration agent advised him to play up to promiscuous and party lifestyle stereotypes to boost his chances of success. "We collected a lot of evidence – I had to get lots of support letters from people; pictures that prove yes I am gay and I am not lying," he tells me over the phone. "Like, you know, at gay bars and that kind of stuff." The interview turned out to be even more intrusive than he expected. "They wanted to know a lot about the sex I have had, how and where, and with which persons. I felt they thought I was not having very much [sex] and this was asked about."


Ravi*, another gay refugee, revealed in a 2013 interview with the ABC that a migration agent suggested he have sex with an Australian man and get an affidavit from him to prove it. "That person I slept with gave me a letter that he was a well-established Australian citizen," he said at the time. "It was consensual sex but I never enjoyed it. Now if someone wanted to do a similar thing with me it would be comparing as a rape." Ravi said he was advised to "camp" it up in any way possible when he appeared before the Tribunal. "I have been advised to pierce my ears and wear the earrings so that I can show that I am different from other Muslim Bangladeshis," he said.


Poor English, limited finances and ongoing struggles with their sexuality can all contribute to many gay refugees having little, if any, involvement with gay organisations or nightlife. Yet without this kind of evidence, most are rejected by the Tribunal. Last year a man from Lebanon lost his bid for protection in part because, according to the Tribunal member's findings: "He knew little or nothing about Sydney's gay scene. His evidence about his homosexual lifestyle in Sydney was vague and unconvincing."


In another case a Tribunal member became so preoccupied with the asylum seeker's trip to a gay sauna that the hearing turned into a lengthy interrogation about the venue, which the applicant visited only once, late at night. His inability to describe the interior beyond the most basic details or go into detail about "what people did" there contributed to the rejection of his claim. Lawyer John Azzi, who later represented the refugee in the Federal Court, described the Tribunal questioning as "absurd".


An Egyptian asylum seeker was rejected by the Tribunal in part because he didn't look festive enough at Mardi Gras. "The applicant appears to be in normal street clothes, without a companion of his own, and there is no indication he is known to any of the people in the photos."


International expert Neil Grungras, head of the Organization for Refuge, Asylum and Migration in the US, which runs training courses for governments and non-government organisations on how to assess cases based on refugee sexuality, insists stereotypes just don't cut it. "If I have somebody who claims to be living a gay life in Sydney, but they don't know Mardi Gras, Oxford Street and gay bars, I don't assume they're not gay," he says in a Skype call from the US. "If you're an asylum seeker, you probably don't have money to go drinking at the bars and you may not have much or any English."


Ben Lumsdaine, a senior solicitor with the Refugee Advice and Casework Service in Sydney, echoes the sentiment. "A lot of gay culture is quite sophisticated; it's not something that you can just walk into from a foreign country, where you've had to hide your sexuality your whole life. You may be depressed, or suffering from some other mental health condition."


A former five-year veteran of the Tribunal, who does not want to be named, says the use of stereotypes is all the more dangerous because there are no safeguards to protect people from bad decisions, except an appeal to the Federal Court. "There are no checks or curbs on these assumptions, with members given free rein to indulge whatever personal views they may hold when making decisions that can mean life and death in the most extreme cases," he says.

Some members of the Tribunal have also struggled to accept that some gay people may have previously been married or had children, often using this information to make adverse findings against claimants' credibility. In a case from 2015, the Tribunal could not believe an Egyptian man was gay, even though it accepted he'd had sex with men, because he was in an arranged marriage with a woman.


Oddly enough, while some applicants have failed because they haven't convinced the Tribunal they're gay, a handful of heterosexual men have qualified because they've claimed persecution on the basis of their taste in fashion and hairstyles. A straight male from Iraq was given protection in 2014 because the Tribunal decided he was an "emo" (a goth-inspired look involving dyed black hair and skinny jeans).


"I accept that his physical appearance might readily be perceived to be feminine. I accept the applicant's evidence that, while in Iraq, he was harassed and called sissy because of his feminine appearance," a Tribunal member found. A Colombian activist who described himself as a "punk" told the Tribunal he faced problems because of the way he dressed. He was granted protection late last year. He was asked to name his favourite punk bands and what they meant to him as part of the Tribunal's assessment. One Bangladeshi couple, who fled their country in 1998 after being stoned by villagers, fought the Tribunal for 16 years through the courts, including a landmark High Court case. They were finally granted refugee protection in late 2015.



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Poor English, limited finances and ongoing struggles with their sexuality can all contribute to many gay refugees having little, if any, involvement with gay organisations or nightlife


uh, or just being a human being 


this article does a great job, but then writes a sentence like this, which shows how far it still has to go 

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