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Lesbian and gay refugees in Australia: now that 'acting discreetly' is no longer an option, will equality be forthcoming?

Kendall, C.N. (2003) Lesbian and gay refugees in Australia: now that 'acting discreetly' is no longer an option, will equality be forthcoming? International Journal of Refugee Law, 15 (4). pp. 715-749.

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This paper will analyse a recent decision of the Australian Refugee Review Tribunal in which a young gay Iranian man was denied refugee status on the basis that he could avoid persecution in Iran by `acting more discreetly' and by leading a less `public' sexual profile. Contrasting this decision with a recent decision of the High Court of Australia in which the `discretionary option' was explicitly rejected by a majority of the Court hearing the case of two gay Bangladeshi men, this paper will highlight that the reasoning used by the Tribunal misunderstands the nature of sexuality-based discrimination and offers a line of reasoning that is central to ensuring the types of inequalities and biases that are at the heart of sexuality-based discrimination and that perpetuate the inequalities which international human rights instruments seek to eradicate. While applauding the High Court's rejection of the `discretionary option' used by the Refugee Review Tribunal, this paper will argue that a much stronger understanding of the sex equality implications of the Tribunal's decisions in this regard is needed if lesbian and gay refugee claimants are to find real protection in Australia. Some have criticised the High Court's latest judgment on lesbian and gay refugees as `interventionist', even `radical'. These critics do so because they fail to recognise what homophobia is and what the demands of equality require of the Court in its interpretation of the Convention Relating to the Status of Refugees. Overall, it will be argued that, applying a sex equality analysis of anti-lesbian and anti-gay discrimination, it is clear that, while the High Court has now recognised the errors of discretion, it has yet to find the voice that true systemic equality demands.

Item Type: Journal Article
Publisher: Oxford University Press
Copyright: © 2003 Oxford University Press
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