As Australia's High Court puts the controversial refugee swap deal with Malaysia on hold, questions remain on how Australia has and will treat LGBT refugees who arrive by boat.
Australia plans to send up to 800 asylum seekers to Malaysia in return for accepting 4,000 registered refugees from that country over four years under a deal supposedly designed to stop 'boat people' from landing in Australia.
Lawyers representing refugees who arrived on Christmas Island by boat last week told the court that because Malaysia is not a signatory to the UN Refugee Convention, Australia cannot guarantee the safety of people sent there. Malaysia does not have a statutory framework that recognises refugees. Amnesty International released a report in late 2010 reporting on numerous incidents of caning and congestion in detention facilities in Malaysia.
Last year we reported on the case of Leela Krishna, a Tamil refugee who had arrived by boat. Krishna said that he had experienced sexual harassment, bullying and physical assault in detention and has attempted suicide several times.
Refugee activist Andrew John Brent said:
"There is always lgbt boat people refugees ... Community Action Against Homophobia (CAAH) have been working with two men (partners) from Bangladesh, who are trying to prove their sexuality and relationship for immigration."An Australian Department of Immigration and Citizenship spokesman told us that:
"There will be no broad or blanket exemptions to transfer. Prior to transfer, individuals will undergo an assessment of their particular circumstances to ensure compliance with Australia’s international obligations."
"Where exceptional circumstances exist, such as in the case of particularly vulnerable individuals, a case-by-case assessment will be conducted to determine whether particular individuals should be transferred [to Malaysia]."Australian Immigration Minister Chris Bowen has repeatedly said that there will be 'no exceptions' to the policy of transfers.
Pressed on what guarantees LGBT refugees could receive if transferred to Malaysia the spokesman wrote:
"Protection visa claims will be processed by the United Nations High Commissioner for Refuges (UNHCR) in Malaysia."Homosexuality is illegal in Malaysia with sodomy attracting a possible 20 year prison sentence. The country has itself generated LGBT refugees.
Last year at least two Malaysian men and one transgender woman, Fatine Young, successfully claimed refugee status in the UK.
Fatine had received death threats in Malaysian on Facebook. An article in the Malay Mail spoke of claims she had "shamed Malaysia".
Another transgender woman from Malaysia was granted refugee status in Australia on the basis that being unable to change her identity documentation and access employment would result in her inability to subsist.
One refugee told us
"Whats wrong with [Australia]! There's no human right there?"Senthorun Raj, of Sydney's NSW Gay and Lesbian Rights Lobby, wrote that:
"How can the Malaysian government offer protection to refugee when they can't even protect their own people, especially lgbt? It will be worse if the refugee is lgbt. I can't imagine what will happen to them there."
"If we are committed to a more ethical and regional solution to processing asylum seekers, particularly those who flee on the basis of homophobia and transphobia, we must get things right here in Australia, and not try to outsource our international obligations to another country."David Manne from the Refugee and Immigration Legal Centre who had sought the High Court injunction stopping the refugee swap deal, argued that Australia did not have the right to deport 'boat people'.
“Australian law requires that their claims for refugee protection should be considered here in Australia instead of expelling them to Malaysia,” he told AFP.
“This is about life or death matters and our clients are challenging the government’s power to expel them to Malaysia where they fear they will not be protected and they are at real risk of harm,” he said.85% of asylum seekers arrive by plane. Those arriving by boat to Australia peaked at close to 7,000 in 2010, but closer to 2,000 'boat people' have arrived this year.