This week, Guardian Australia published the painful stories of gay Iranian men on Manus Island, who recounted being indefinitely detained in a place that criminalises homosexuality. Just yesterday, new legislation was passed that will radically reshape the lives of asylum seekers who arrived onshore after 13 August 2012. For lesbian, gay, bisexual, transgender, and intersex (LGBTI) people pursuing refugee claims, these new laws will be especially cruel.



For starters, the law will “fast track” asylum claims. Asylum seekers dealing with the shame, stigma, and secrecy associated with their sexuality or gender identity will now essentially be required to “come out” to immigration officials.

All of us need space to navigate our identities and many of us still struggle with telling others for fear of rejection or abuse. Yet, if refugees fail to do so immediately, they will be at risk of deportation.



Even when they disclose, the system demands that you prove your “gayness” in order to qualify for protection. If you had just a week or two, this requirement becomes even more cumbersome. What evidence can you gather? Do you butch or femme up for the interview? Do you quickly brush up on Lady Gaga? Do you have sex and have you or your partner(s) take photos during it?



Previous decisions reveal that asylum seekers are conscripted into answering questions about their sexual activities, their tastes in popular culture, and even their knowledge of gay bars in the countries from which they came. The department lacks comprehensive guidelines for assessing LGBTI claims, which means questions can be asked on a range of intrusive and inappropriate matters.

In the UK, the use of “fast tracking” has been criticised for failing to afford asylum seekers the time to demonstrate the truth of their claims. And denying merits review to fast-tracked asylum seekers just compounds their precarity. Some asylum seekers fail to disclose the identity aspects of their protection claim because they fear reprisal from their friends or family. This can often be revealed later on.

Under the new legislative scheme, such revelations will be deemed “unmeritorious.” While judicial review will remain, the grounds for reviewing a primary decision are narrowly circumscribed.

The creation of an alternative statutory body, the immigration assessment authority, provides little consolation. While it will review those decisions that are not already excluded, unlike the Refugee Review Tribunal, it will only review new material in “exceptional” circumstances and will not conduct hearings. Due process becomes a commodity traded for bureaucratic “efficiency.”



Much of the federal government’s border protection regime is based on the assumption that asylum seekers deliberately abuse the system. Yet, the system makes it difficult to prove the truth of complex claims, including those based on sexual desire.

The new legislation will also deny protection to refugees who could take “reasonable steps” to “modify” their behaviour. So-called “fundamental” aspects of identity will be excluded – but it remains unclear what exactly that will mean in terms of sexuality.

In 2003, a majority of judges on the High Court rejected the expectation that gay refugees should “cover up” or remain “discreet” about their sexual orientation to avoid persecution. Now shade has been cast over that landmark decision – one that set the scene in other countries for recognising LGBTI refugees.

If you are an intersex man who enjoys sex at a beat or a bisexual woman who organises queer social events, it will now be up to a bureaucrat to determine if your sexual and/or gender expressions can “reasonably” be modified.



Australia’s quite well precedented political assault on asylum seekers is hardly queer. From “saving lives” to “strong borders”, the increasingly punitive approach to managing forced displacement has precipitated the erosion of basic human rights and freedoms. It takes a twisted sense of logic to think you can “clarify” international law by removing references to it. For LGBTI refugees, who are among the most exposed to the violence endemic in our immigration detention system, Morrison’s “reforms” will be particularly devastating.