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Burdened by Proof: How the Australian Refugee Review Tribunal has Failed Lesbian and Gay Asylum Seekers

Published online by Cambridge University Press:  24 January 2025

Catherine Dauvergne  and
Jenni Millbank
Catherine Dauvergne
Affiliation:
Faculty of Law, University of British Columbia
Jenni Millbank
Affiliation:
Faculty of Law, University of Sydney
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Extract

Our argument in this paper is that the evidentiary practices and procedures that have been developed by the Australian Refugee Review Tribunal are operating at a routinely low standard. Such practices contribute to decisions that are manifestly unfair and potentially wrong in law. A recent working paper from the Office of the United Nations High Commissioner for Refugees ('the UNHCR') notes that evidentiary questions have been 'largely ignored in the academic literature.' Our conclusions are drawn from our detailed study of more than 300 refugee tribunal decisions made in Canada and Australia in response to asylum claims brought by lesbians and gay men. Our overall frame of inquiry in this study considers how the respective tribunals grapple with the issue of identity, the complex cluster of dilemmas around the public/private divide, the inability of many decision-makers to imagine the 'other' who stands before them in these claims, and the way this area of law encodes and reflects homophobic stereotyping.

Type
Research Article
Information
Federal Law Review , Volume 31 , Issue 2 , June 2003 , pp. 299 - 342
Copyright
Copyright © 2003 The Australian National University

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Footnotes

This project was supported by a grant from the University of Sydney Faculty of Law Legal Scholarship Support Fund.

An earlier version of this paper was presented at the Amnesty International Global Human Rights Conference, Sydney, 31 October 2002. Thanks to Tiffany Hambley for her research assistance on this paper, and to Arlie Loughnan and Georgina Perry for research assistance on earlier aspects of the project. For comments on an earlier draft, our thanks to Mary Crock and another reader.

References

1 Brian Gorlick, Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status (2002) UNHCR Working Paper 68, 2 <www.unhrc.ch> at 5 February 2003.

2 See Millbank, Jenni, 'Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia' (2002) 26 Melbourne University Law Review 144Google Scholar; Dauvergne, Catherine Millbank, Jenni, 'Before the High Court: Applicants S396/2002 and S395/2002, a Gay Refugee Couple from Bangladesh' (2003) 25 Sydney Law Review 97Google Scholar.

3 This paper includes qualitative analysis of Australian cases to 31 December 2002.

4 The legal definition of a refugee is a standard one, drawn from the Refugee Convention.Article 1A(2) of the Convention defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) ('the Convention').

5 In Canada, the first case to accept that sexual orientation constitutes an eligible social group was in 1991 (although note this case contained a sharp dissent): Re R (UW) [1991] CRDD No 501 (QL), IRB Reference U91-03331 (Rotman, Leistra, 7 October 1991). Several more cases were decided at tribunal level before this approach was confirmed at judicial level in obiter: Ward v Attorney-General (Canada) (1993) 2 SCR 689 [78]. Likewise in Australia, the first case was in 1994: RRT Reference N93/00593 (Unreported, Tsamenyi, 25 January 1994), and some years passed (during which cases usually referred to Ward) before this view was judicially confirmed, again in obiter: Applicant A v MIEA (1997) 190 CLR 225. In 1995, the UNHCR accepted that lesbians and gay men can constitute members of a 'particular social group' and be eligible for protection under the terms of the Convention: Amnesty International, Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment Based on Sexual Identity, 2001, 49 (available online at <www.amnesty.org>); see also UNHCR, Protecting Refugees: Questions and Answers (2001) <www.unhcr.ch> at 1 April 2002. Since then a number of European nations, such as Austria, Denmark, Germany, the Netherlands, Finland and Sweden have accepted lesbian and gay asylum seekers as members of a 'particular social group'. Amnesty notes that by 2001 at least 18 countries had granted asylum on the grounds of sexuality-related persecution: Amnesty International, above n 5. Note that the European Parliament ('EP') voted to broaden the draft European Commission Directive on the definition of a refugee. The EP added sexual orientation, gender identity and HIV status as elements of the particular social group category. The final decision remains with the European Council of Ministers, but if passed would cover all 25 member nations; see 'Justice and Home Affairs: European Parliament Backs a Broader Definition of Refugee' European Report (Brussels) 23 October 2002, 472.

6 This step has been undertaken in a very cursory fashion in the Australian cases: see Dauvergne and Millbank, 'Before the High Court', above n 2.

7 Russ, John, 'The Gap Between Asylum Ideals and Domestic Reality: Evaluating Human Rights Conditions for Gay Americans by the United States' Own Progressive Asylum Standards' (1998) 4 UC Davis International Journal of Law and Policy 29, 55Google Scholar.

8 For a discussion of the early Canadian case law, see Nicole LaViolette, 'The Immutable Refugee: Sexual Orientation in Canada (AG) v Ward' (1997) 55 University of Toronto Faculty of Law Review 1. On early Australian case law, see Jenni Millbank, 'Fear of Persecution or Just a Queer Feeling? Refugee Status and Sexual Orientation in Australia' (1995) 20 Alternative Law Journal 261, and Walker, Kristen, 'The Importance of Being Out: Sexuality and Refugee Status' (1996) 18 Sydney Law Review 568Google Scholar. For an overview of the social group category and sexuality in the UK, Canada, United States of America ('US'), New Zealand and Australia, see Walker, Kristen, 'Sexuality and Refugee Status in Australia' (2000) 12 International Journal of Refugee Law 175CrossRefGoogle Scholar. Note that the UK was comparatively late, with conflicting decisions at administrative level through the mid 90s and judicial acceptance only in 1999: see Walker 'Sexuality and Refugee Status in Australia' 183, n 39; McGhee, Derek, 'Persecution and Social Group Status: Homosexual Refugees in the 1990s' (2001) 14 Journal of Refugee Studies 20CrossRefGoogle Scholar.

9 Canada issued 13 decisions in 1991-93 period, but it was from 1994 onwards that most claims were heard in a settled post Ward period of decided eligibility.

10 See Macklin, Audrey 'Cross-Border Shopping for Ideas: A Critical Review of United States, Canadian, and Australian Approaches to Gender-Related Asylum Claims' (1998) 13 Georgetown Immigration Law Journal 25Google Scholar. The most important distinction is that the refugee determination tribunal in Canada makes the decision at first instance whereas the Australian Tribunal conducts a merit review. This distinction is less significant than it seems at first because the acceptance rates at first instance in Australia are very low (8 per cent) and a majority of those who are rejected seek a merits review in the RRT. In addition, the RRT is a full merits review and thus the issues are canvassed in a similar way in each tribunal.

11 Based on all available cases on Australian Legal Information Institute ('Austlii') between May 2000 and December 2002.

12 Australia had a higher proportion of cases from Asia, while Canada had more cases from Southern and Central America.

13 So, for example, in cases concerning Malaysia, where similar country information was utilised, Australia considered six claims and rejected all of them(5 men and 1 woman) while Canada considered two (both from men) and accepted both. See also later discussion of applicants from Iran.

14 The ability to seek judicial review has been continually circumscribed in Australia in recent years, see Crock, Mary, 'Making Sense of the Rule of Law: Trends in Judicial Review of Migration Decisions' (2002) 8 Immigration Review 9Google Scholar. In Canada, leave must be sought from the Federal Court.

15 Plus one successful claim on HIV status: Kuthyar v MIMA [2000] FCA 110.

16 See, eg:The country information consulted by the RRT suggested that the Iranian authorities do not actively seek out homosexuals and the risk of prosecution for homosexuality is minimal so long as the activities are carried out discreetly. This evidence may or may not be correct. However, it was before the RRT and the RRT formed the view that it was appropriate to rely on it. That essentially is a question for the RRT, being a question of fact and degree as to the relative weight to be given to the assertions by the applicant and the independent country evidence which is referred to in the decision.

Gholami v MIMA [2001] FCA 1091 [14] (emphasis added). See also n 182 below.

17 Guo Ping Gui v MIMA [1998] FCA 1592 (the applicant was successful at first instance, but the decision was overturned on appeal to a Full Court of the Federal Court): MIMA v Gui [1999] FCA 1496. See also MIMA v Guan [2000] FCA 1033 (unsuccessful appeal by Minister). Note that in the June 2001-March 2003 period, outside of our pool, ten applications for judicial review from claims based on sexual orientation went to the Federal Court, of which only one was successful. See Gautam v MIMA [2000] FCA 1367; Khanmeeri v MIMA [2002] FCA 625; Khalili v MIMA [2001] FCA 1404, the appeal to a Full Court of the Federal Court reported as SAAF v MIMA [2002] FCA 343; Kabir v MIMA [2001] FCA 968, and on appeal to a Full Court of the Federal Court: Kabir v MIMA [2002] FCAFC 20; SAAM v MIMA [2002] FCA 444; Nezhadian v MIMA [2001] FCA 1415, and on appeal to a Full Court of the Federal Court reported as WABR v MIMA [2002] FCAFC 124; WAAG v MIMIA [2002] FMCA 191 (successful review by Federal Magistrate on the ground of bias) overturned on appeal to a Full Court of the Federal Court in MIMIA v SBAN [2002] FCAFC 431; NAIQ of 2002 v MIMIA [2002] FCA 1075, and on appeal to a Full Court of the Federal Court: NAIQ of 2002 v MIMIA [2002] FCAFC 408; NAKX of 2002 v MIMIA [2002] FCA 1488; NAFP v MIMIA [2003] FCA 241. The only appeal upheld was W133/01A [2002] FCA 395. Note that when this case was returned to the Tribunal and reheard by a new member, the claim was refused on the new ground that the Tribunal did not accept that the applicant was gay (despite finding in the original case that the applicant was gay, but did not have a well- founded fear because he could avoid danger by 'discretely' hiding that fact). An appeal from this latter decision was dismissed by the Federal Magistrates Court: WAIH v MIMIA [2003] FMCA 40. In a recent article John McMillan argues that Federal Court judges in Australia have exercised 'overly-thorough judicial scrutiny' and in a 'self-styled judicial emphasis on human rights protection' over-reached their powers in immigration decisions: McMillan, John, 'Judicial Restraint and Activism in Administrative Law' (2002) 30 Federal Law Review 335, 352 and 354CrossRefGoogle Scholar. This point is demonstrably not borne out in Federal Court decisions on sexual orientation.

18 See Kessels, Ron Glass, Arthur, 'The Privative Clause and Judicial Review' (2002) 1 Immigration Review 10Google Scholar; Evans, Simon, 'Protection Visas and Privative Clause Decisions: Hickman and the Migration Act 1958 (Cth)' (2002) 9 Australian Journal of Administrative Law 49Google Scholar. The application of the privative clause was recently read down by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

19 This differs from the Canadian hearing format where the claimant is usually represented by a lawyer and a Refugee Hearing Officer, charged with assisting the tribunal, also participates in the hearing. Under the new Canadian rules, the relevant Minister also has a right to participate in refugee determination hearings.

20 For a critique of the Canadian process see Rousseau, Cécile et al, 'The Complexity of Determining Refugeehood: A Multi-Disciplinary Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board' (2002) 15 Journal of Refugee Studies 43CrossRefGoogle Scholar.

21 Furthermore, while tribunals do administer oaths before hearing the applicant's story, the role which the oath plays is considerably diminished, at least symbolically, in a setting such as the RRT where the form of the Christian oath is simply translated into a variety of languages and the applicant is then asked to read it — without an inquiry into whether oath swearing or affirming is at all culturally or religiously translatable in this simple way. As early as 1744 in Omychund v Barker 26 ER 15, 31 (Willes LCJ), the English Court of Appeal impugned the practice of having non-Christians swear Christian oaths:

it would be absurd for him to swear according to the Christian oath, which he does not believe; and therefore, out of necessity, he must be allowed to swear according to his own notion of an oath.

22 Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees ( 2nd ed, 1988) 47, [197].

23 Ibid 48, [203].

24 Migration Act 1958 (Cth) s 420(2)(a); Immigration and Refugee Protection Act SC 2001 c 27,s 170(g); which carries on the provision of the Immigration Act RSC 1985 c I-2, s 68(3) which controlled the IRB during the timeframe of our study.

25 Section 420(1) of the Migration Act 1958 (Cth) states '[t]he Tribunal, in carrying out its function under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.'

26 Applicants in the RRT are not entitled to be 'represented' by any other person under s 427(6) of the Migration Act 1951 (Cth). While lawyers may attend RRT hearing to 'assist', they are only allowed to contribute to the discussion at the presiding tribunal member's discretion. See Refugee Review Tribunal, General Practice Directions (2003) 14, [21], online at<http://www.rrt.gov.au/practice.htm> at 23 July 2003. While claimants may be legally assisted in preparing their cases, legal aid is limited to appeal matters, and only available if there is a legal question over which judicial opinion is not settled: see, for example, Legal Aid Commission of NSW, Civil Law (Commonwealth): Guidelines (2002)<http://www.legalaid.nsw.gov.au/lac/lac.nsf/pages/ccvguide> at 16 December 2002.

27 Re MIMA;Ex Parte Epeabaka (2001) 206 CLR 128, 150, [63].

28 Migration Act 1958 (Cth) s 420(2)(b).

29 For example, the RRT has the power to take evidence on oath or affirmation, to summons persons to give evidence, Migration Act 1958 (Cth) s 427. It can also authorize that evidence be taken elsewhere on its behalf, s 428; take evidence by telephone or using other means of communication, s 429A; and penalize those who do not comply with its evidentiary requests, ss 433 and 434.

30 Migration Act 1958 (Cth) ss 424, 424B, 426.

31 Migration Act 1958 (Cth) s 430(1).

32 Cho v MIMA (1998) 55 ALD 487, 501 (Madgwick J). His Honour continues,in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; at 256, Evatt J said: 'Some stress has been laid by the present respondents upon the provision that the tribunal is not, in the hearing of appeals, “bound by any rules of evidence”. Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice”: at 501.

Justice Madgwick concludes with respect to the RRT that, [i]f there is no licence for an ultimate abandonment of any logical connection between the material and the decision, there is no better reason to assume that the Act was intended to authorise the partial or intermediate abandonment of such connections. It is with that concept, rather than with a merely qualitative assessment of the degree of acceptability of a judgment rationally available to the Tribunal, that I have been concerned: at 501-2.

33 Tapper, Colin, Cross and Tapper on Evidence (9th ed, 1999) 18-19Google Scholar.

34 Gorlick, above n 1, 5 (emphasis added).

35 See Migration Act 1958 (Cth) s 424(2).

36 The central inquiry regarding persecution is necessarily a future looking one, in which past persecution is to be treated as only one indicator: Chan Yee Kin v MIEA (1989) 169 CLR 379.

37 This perception was at the core of a bias claims concerning an RRT member who had

published on his personal website his view that refugee claimants often 'lie through their teeth': in MIMA v Epeabaka [1999] FCA 1 [13]; see also Re MIMA; Ex parte Epeabaka (2001) 206 CLR 128.

38 Australia, like Canada, considers that its immigration program ought to be selecting the best and the brightest from around the world to bolster Australia's economy. Since 1996, Australia has granted economic category migration priority over family category migration, and recent changes have been directed towards making recruiting wealthy, skilled, English speaking migrants easier. See Philip Ruddock, 'Opening Speech' (Speech delivered at the Migration: Benefiting Australia Conference, 7 May 2002)<http://www.minister.immi.gov.au/media/transcripts/transcripts02/migration_conf.htm> at 18 December 2002.

39 Chan Yin Kin v MIEA (1989) 169 CLR 379; Applicant A v MIEA (1997) 190 CLR 225.

40 One hundred and nineteen of 331 cases. Of these, Reuters is the source most often cited, in 19 of the cases.

41 Forty-nine of 204 cases. The complete list of sources we coded for is: academic sources, AIDS activist groups, queer activist groups, human rights civic organizations, local (Australian or Canadian) press, local queer press, international gay and lesbian press, international mainstream commercial press, DFAT, Canadian Immigration and Refugee Board Documentation Centre responses to specific information requests, other government sources, consular sources, country of origin press, country of origin legal sources, internet, Lonely Planet guidebooks, Reuters, medical sources, Spartacus, Third Pink Book, US State Department country reports, UN Sources, Encyclopedia of Homosexuality and religious or church sources.

42 LaViolette, Nicole, 'Proving a Well-Founded Fear' in Sydney Levy (ed), Asylum Based on Sexual Orientation: A Resource Guide (1996)Google Scholar.

43 See, eg, 'It is particularly difficult to prove a well-founded fear of persecution [in cases of sexuality] because there is relatively little documentation of anti-gay action by governments.' Suzanne Goldberg, Lambda Legal Defense and Education Fund, quoted in Keith Donoghue, 'INS Showing New Sympathy for Gay Refugees', The Recorder, 25 October 1995, 11. This may even extend to obtaining information from expatriates:

Arman will not disclose his last name or his hometown. 'Even abroad, gay Iranians can't cease being frightened for themselves and their families back in Iran,' explains Arman. 'Now this terror is a part of our body and psyche.'

Daniela Danna, 'Punishable by Death', The Advocate [no date], 60. Both foregoing sources are in the IGLHRC's Current Update Packet: Iran, on file with authors. The role of the IGLHRC in gathering country information is discussed below, in the section entitled 'An Alternative Approach to Independent Evidence'.

44 Peter Tatchell, 'The New Dark Ages', Homan, Issues 10 and 11, June 1996, 15. Reproduced in the IGLHRC's Country Packet: Iran #2.

45 LaViolette, 'Proving a Well-Founded Fear', above n 42, 5. LaViolette notes that Amnesty only recognised that lesbians and gay men were prisoners of conscience in 1991 and issued its first report on human rights abuses based on sexuality in 1994. Human Rights Watch first adopted a statement including lesbians and gay men within its mandate in 1994.

46 Amnesty International, Crimes of Hate above n 5, 49. This also applies to the receiving countries. Evidence in one Australian case on Nepal noted that 'the US State Department [human rights report on Nepal] makes no reference to homosexuality as it is outside the parameters of human rights reports.' Gautam v MIMA [2000] FCA 1367 (emphasis added).

47 See LaViolette, 'Proving a Well-Founded Fear' above n 42, 7.

48 See, eg, a case where the decision-maker acknowledged twice that none of the country information referred to concerned lesbians but then concluded,

[t]here have been no reports of lesbian women being harassed by the authorities or mistreated by society in general, whether in Shanghai, or indeed, anywhere else in China. ... The view I take of the evidence, as reviewed above, is that lesbian women do not face serious difficulties and discrimination in China today, even if they are found out.

RRT Reference N98/21640 (Unreported, Klintworth, 21 December 1998).

49 Billings, Peter, 'A Comparative Analysis of Administrative and Adjudicative Systems for Determining Asylum Claims' (2000) 52 Administrative Law Review 253, 299Google Scholar (emphasis in original).

50 The RRT's ordinary expenses totalled $19.1 million AUD for 2001-02. For 2002-03, the budget of the Canadian Refugee Protection Division (this division is the successor to the Convention Refugee Determination Division which is the relevant division of the IRB for our study) is $62.6 million Canadian dollars. See Commonwealth of Australia, Refugee Review Tribunal Annual Report 2000-2001 (2001) 41; Immigration and Refugee Board, 2002-2003 Estimates (2002) Pt III. While the RRT decides around 7000 cases per year, the IRB decides 40 000. The amount spent per case is roughly similar. The estimated cost per claim in Canada is $2590 ($2957 AUD), while there is a $2400 AUD per application finalised commitment in Australia.

51 Interview with Mark Mantle, Sydney, RRT Sydney, Head of Country Information Section, (19 February 2002).

52 Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. See, eg 364, [137] (Gleeson CJ). In the case of Mr Muin, Gleeson CJ, and Gaudron, McHugh and Kirby JJ held that this was not done with sufficient specificity.

53 Migration Act 1958 (Cth) s 424A.

54 The Canadian Research Information Requests ('RIRs') are typically one to two single-spaced pages long and include sections on references and also attachments. The information requested ranges from general (eg 'Tanzania: Treatment of homosexuals particularly in the city of Dar-es-Salaam, TZA32243.E') to specific (eg 'Update to EGY20206.E of 24 March 1995 on the treatment of homosexuals; whether the treatment of a Jewish homosexual would be different; and whether there are services available for persons who are HIV positive, April 1995 to January 1999; EGY31079.E'). A number of example RIRs provided to us in 2000 are in our Sydney files.

55 Forty-eight per cent of Australian cases used DFAT cables as a source of country information. Of these, 85 cases used DFAT evidence specific to sexuality, ie were about conditions for gay men (or rarely, lesbians) rather than on other more general issues. Later figures will be taken as a proportion of the sexuality centred evidence alone.

56 See Human Rights Watch, By Invitation Only: Australian Asylum Policy (2002) 14 (10C) Human Rights Watch , online at <http://www.hrw.org/asia/australia.php> at 19 December 2002.

57 See, eg, 'advice from academics and a health care professional (who is gay)' RRT Reference V97/06802 (Unreported, Wood, 30 September 1997). The decision-maker expressly held that the applicant's submissions on the 'issues of illegality of homosexuality and the mistreatment of gays in the military' were insufficient to 'rebut the information contained in the documents, about the absence of a culture of ”gay bashing per se”, in Lebanese society.' Ibid.

58 In RRT Reference N98/24600 (Unreported, Russell, 26 November, 1998).

59 In RRT Reference N95/10132 (Unreported, Griffin, 16 September 1997) and RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997).

60 RRT Reference N97/15062 (Unreported, Short, 17 November 1997); RRT Reference V97/07412 (Unreported, Haig, 24 December 1997) and RRT Reference N98/21139 (Unreported, Witton, 8 October 1998).

61 As it was in 72 cases of 85 where it was considered.

62 The success rate of 11 per cent is significantly lower even than the overall success rate of 22 per cent in Australia.

63 DFAT evidence on sexuality was not accepted in 13 cases; eight were successful and five were unsuccessful. This 62 per cent success rate is stunningly high in any aspect of the Australian case pool.

64 Despite noting the existence of Amnesty International evidence about prosecutions under

customary courts, the RRT concluded that there was 'no independent evidence' of punishment by salish courts because it preferred DFAT's stance (which had criticised the Amnesty information): RRT Reference N94/04854 (Unreported, Woodward, 21 July 1998) and RRT Reference N95/09552 (Unreported, Woodward, 4 September 1998).

65 RRT Reference N93/00846 (Unreported, Fordham, 8 March 1994), discussed below, at text accompanying nn 72 and 191.

66 37 cases in total.

67 See Millbank, 'Imagining Otherness'; Dauvergne and Millbank, 'Before the High Court', both above n 2.

68 S 114/2002 and S 115/2002, special leave granted by the High Court 11 October 2002. The transcript of the Leave to Appeal is online at: <http://www.austlii.edu.au/au/other/hca/transcripts/2002/S115/1.html> at 30 January 2003. The case, now renamed S 395/200 and S 396/2002, was heard on April 8 2002 and transcript of the hearing is available at <http://www.austlii.edu.au/au/other/hca/transcripts/2002/S396/1.html> at 15 April 2003.

69 RRT Reference N95/09584 (Unreported, Blair, 31 October 1996); RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997) and RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000).

70 RRT Reference N94/05400 (Unreported, Chan, 28 September 1995).

71 RRT Reference N97/14745 (Unreported, Hardy, 14 July 1998); RRT Reference N97/14489 (Unreported, Gutman, 23 July 1998) and RRT Reference N98/23955 (Unreported, Gutman, 24 September 1998).

72 RRT Reference V98/09602 (Unreported, Haig, 31 May 1999).

73 RRT Reference N98/21542 (Unreported, Zelinka, 25 August 1998) and RRT Reference N98/22269 (Unreported, Mathlin, 2 September 1998). The decision-maker again referred to this cable but omitted the 'like Australia' in RRT Reference N98/21044 (Unreported, Zelinka, 17 November 1998).

74 RRT Reference N95/10132 (Unreported, Griffin, 16 September 1997).

75 See, eg, RRT Reference N99/28009 (Unreported , Smidt, 19 June 2000).

76 See ibid; RRT Reference N00/36301 (Unreported, Rosser, 24 December 2001).

77 RRT Reference N98/21362 (Unreported, Kelleghan, 28 March 2002).

78 For example, DFAT evidence that wealth 'cushions' discrimination was used in a Lebanon case, RRT Reference N97/19504 (Unreported, Zelinka, 28 September 1998) and a Jordan case, RRT Reference N98/23813 (Unreported, Rosser, 8 January 1999).

79 Such cables may not be accessible to applicants as the database is not public. The Office of the UNHCR notes that:

In some national procedures, decision-makers commonly make use of sources of information which are not available to a refugee applicant including reports from diplomatic missions or fellow governments, or even in some cases reports from security intelligence agencies. Administrative law principles of natural justice and fairness provide that an applicant normally be permitted to know what evidence is being relied upon to reach a decision. The use of internal reports by decision- makers without providing the asylum applicant or his or her legal counsel disclosure of such information may actually prejudice an applicant, as they would be unable to refute the evidence or provide a full and informed explanation in case of perceived discrepancies.

Gorlick, above n 1, 5.

80 See, eg, on Colombia: 'homosexuals are, at times, the target of [social cleansing] campaigns' DFAT Report 0152 10/5/99 cited in RRT Reference N98/21549 (Unreported, Kelleghan, 8 September 1999), versus 'as a group homosexuals do not appear to be deliberately targeted by police or other authorities for harassment' DFAT Cable CR1196 10/6/96 in RRT Reference N97/19649 (Unreported, McIllhatton, 22 April 1999). On Lebanon: '[i]f homosexuals are not officially tolerated, to my knowledge they do not suffer discrimination, ostracism, violence or death threats' DFAT Cable BI500123 of 25 September 1995 at CISNET CX11474 in RRT Reference N98/22311 (Unreported, Zelinka, 22 September 1998), compared with: 'DFAT advises that they know of claims of violence against gays in the military, none of which has been proven at law. DFAT advised, on the basis of discussions with academics and a gay health care professional, that … there is a “pattern of abuse/harassment by some elements of the armed forces of gays (both civilian and military)”, largely motivated by blackmail.' DFAT Cable BI3135 in RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997).

81 This is most clearly evidenced in the practice of repeating country information. In many cases concerning applicants from the same country, the entire section on country evidence was reproduced in full from one decision to the next over a period of months or even years. This was initially notable in cases concerning countries that were not generally accepted as persecutory regimes such as China and the Philippines but in recent years the routine use of 'slabs' of country information has extended to far more problematic countries such as Bangladesh and Iran. See discussion below n 152.

82 The Canadian Tribunal has approximately 177 decision-makers and expects to be faced with approximately 40,000 decisions. The Australian Tribunal has 55 decision-makers. It received 6545 applications in 2000-2001 and made 5969 decisions. See Refugee Review Tribunal Annual Report and Immigration and Refugee Board, 2002-2003 Estimates above n 49, 5, 24. The number of Canadian decision-makers is expected to rise to 197. These figures reflect the impact of Canada's 'expedited process' option, the role played by a hearing officer who prepares and presents evidence in the Canadian Tribunal and the fact that written reasons are only mandated in negative decisions.

83 Above n 50.

84 Ibid.

85 This 10 per cent success rate compared to an overall success rate of 22 per cent in the Australian decisions.

86 Spartacus International Gay Guide (24th ed, 1995). The RRT uses a number of editions of Spartacus, and we have compared with the specific edition where appropriate. The 24th edition is the one most commonly used in our data and thus we refer to it for general comparisons.

87 Ibid. Together the USA, UK, Netherlands, Germany, Spain, France and Australia occupy more than half of the guide. Approximately 20 per cent of page content is advertising.

88 The RRT did not appear to accept this very obvious limitation when it was pointed out. In a negative decision for a gay man from Pakistan, the Tribunal stated:

The Tribunal notes that the submission does not address the information read to and offered to the solicitor at the hearing from Sparticus International Gay Guide 95/96 on the laws regarding homosexuality and behaviour in Pakistan. In the hearing, the lawyer dismissed this information as applying only to visitors although the Tribunal pointed out that this was nowhere indicated in that Information

RRT Reference V97/06971 (Unreported, Ford, 1 February 1999).

89 Spartacus, above n 86, 145. Also note on file with the authors is the reasons of a minister's delegate from January 2002 rejecting the application of a gay man from China. The reasons state that there has been 'a shift in the government's position toward homosexuality' and cites as authority <www.gaychina.com>. This website, when visited (at 14 March 2003) featured 'Smooth & Horny Asian Boys!' with pornographic photos, videos, stories, chat rooms and sex shows accessible for a fee, as well as a message board that is freely available.

90 RRT Reference N97/13911 (Unreported, Blount, 10 December 1997).

91 RRT Reference N98/24600 (Unreported, Russell, 26 November 1998).

92 RRT Reference N95/10037 (Unreported, Hunt, 25 February 1997).

93 RRT Reference N98/21542 (Unreported, Zelinka, 25 August 1998).

94 RRT Reference V98/08356 (Unreported, Hudson, 28 October 1998).

95 RRT Reference N99/27818 (Unreported, Kelleghan, 29 June 1999).

96 RRT Reference N98/24600 (Unreported, Russell, 26 November 1998). Moreover, this case concerned a lesbian applicant; see discussion on gender-inappropriate use of Spartacus below, in the section entitled 'Gender-Blind Evidence: A Question of Relevance'.

97 RRT Reference N98/20912 (Unreported, Cristoffanini, 3 February 1999). The same thing occurred in a case concerning a lesbian from Ghana, where the Tribunal relied upon Spartacus in preference to the Third Pink Book (the latter stating that, in Ghana, 'homosexual behaviour is illegal ... In 1992, reports reached us of torture and imprisonment of gay men.'). Not only was Spactacus used in preference to this information, it was also relied upon by the Tribunal in this case as a source of law, stating that 'Spartacus, the gay travel guide published in 1998 says “In Ghana there are no laws prohibiting homosexuality.''' RRT Reference N98/24600 (Unreported, Russell, 26 November 1998).

98 Spartacus Guide, above n 86, 153, and cited verbatim earlier in the decision.

99 Ibid 155, punctuation in the original — furthermore, one of the areas listed is coded 'at your own risk.'

100 RRT Reference N98/24600 (Unreported, Russell, 26 November 1998) and RRT Reference N98/24718 (Unreported, Russell, 19 March 1999).

101 Hendriks, Aart et al (eds), The Third Pink Book: A Global View of Lesbian and Gay Liberation and Oppression (1993)Google Scholar.

102 RRT Reference N98/24186 (Unreported, Hardy, 28 January 2000), a successful claim by a gay man from Bangladesh. The Tribunal states:

The Tribunal finds the Spartacus Guide to be a quite comprehensive guide to respective levels of recognition, visibility and tolerance of homosexuals in a great many countries around the world. If one compares the UK or Denmark entry with that of Jamaica or the Cayman Islands, one may reasonably form the impression that there is a great difference in levels and forms of recognition, visibility and tolerance between the first two countries and the latter two. One may reasonably note that in Jamaica, say, the only places in which homosexuals may safely, if very discreetly, identify themselves are in private tourist-oriented establishments, not easily patronised, for reasons of cost and perhaps reputation, by members of the local population. One may reasonably form the impression that an entry in the Guide for a country that only includes little or nothing more than a short list of 'cruising' locations, say, in parks, remote beaches, toilets and other sites designed or deemed suitable for fairly anonymous ablution or excretion, is an entry for a country where homosexuals have to be much more on their guard for one reason or another.

...The Guide is quite arguably conceived and oriented for the consumption of Western gay travellers. Still, comparisons with Bangladesh are not invalid, not least of all because the Guide appears to essay towards comprehensiveness, as evidenced in its coverage of Thailand (20 pages), Vietnam (1 page), Sri Lanka (2 pages), India (2 pages) and largely Muslim Indonesia (8 pages). A survey of these countries supports the impression that the size of the countries' entries are not attributable to the respective countries' wealth or location along popular tourist trails, but, rather, to the extent to which taboos against homosexuality have either disappeared or were non-existent in the first place. Bangladesh, meanwhile, evidently maintains what may well be argued to be a statutory justification for continued discrimination against homosexuals and ill will towards them.

...However, it seems reasonable to form the view that if a country's only gay meeting places are anonymous 'pick-up' sites, there may be some form of pressure within society that forces homosexuals to deny their existence and identity to an extent not similarly or so thoroughgoingly enacted upon heterosexuals. Evidence to the effect that homosexuals in Bangladesh use public facilities like toilets instead of private accommodation like homes and apartments, or bars with names like 'Why Not', should not found the conclusion that homosexuals are comfortable fraternising in public places, let alone that this is indicative of a substantial degree of indifference to them as a class. The seemingly ironic expectation of being able to maintain anonymity in what is after all a public toilet, coupled with the equally ironic anticipation of meeting someone with common purpose in such places, would appear, from much of the evidence submitted by the Applicants, to have nothing to do with a lack of concern about being detected.

103 Dyson Heydon, John, Cross on Evidence (6th Australian ed, 2000) 84Google Scholar. Heydon formulates the rule: 'All evidence which is sufficiently relevant to the issue before the court is admissible and all that is irrelevant, or insufficiently relevant, should be excluded.' This rule is encoded in the Evidence Act 1995 (Cth) s 56.

104 Ibid 88–46. See, also, Ron Delisle and Don Stuart, Evidence: Principles and Problems (6th ed,2001) 106–110. Section 55(1) of the Evidence Act 1995 (Cth) states that evidence is relevant if it '... could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.'

105 In the US, Federal Rules of Evidence, Rule 403 states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

106 Heydon, above n 102, 97.

107 RRT Reference N98/24600 (Unreported, Russell, 26 November 1998). For a more detailed discussion see Millbank, 'Imagining Otherness', above n 2.

108 Ibid.

109 RRT Reference N95/09552 (Unreported, Woodward, 4 September 1998).

110 For instance, although it contains many codes for nightclubs and other venues (denoting older crowd, leather etc) and includes a code for 'gay and lesbian mixed crowd' (GLM), all other codes refer implicitly to gay men and the 1995/96 edition of the guide did not even list a code indicating lesbian venues.

111 In two cases concerning lesbian applicants from the Philippines in 1997 and 1998, Spartacus is cited as 'confirming' that 'homosexual support groups are active in the Philippines'. In fact no support groups are listed in that edition of the guide, and of the 19 bars clubs and discos listed for Manilla only one of them was coded as catering to a mixed gay and lesbian clientele. RRT Reference N97/13911 (Unreported, Blount, 10 December 1997) and RRT Reference N97/19718 (Unreported, Rosser, 21 April 1998). Both cite 653 of the 1995/96 edition.

112 RRT Reference N97/17155 (Unreported, White, 23 September 1998); RRT Reference V98/09498 (Unreported, Wood, 30 March 1999) and RRT Reference V98/09501 (Unreported, Wood, 31 March 1999) all use this quote from the opening couple of sentences from the 1998/99 edition. In the 1995/96 edition this is worded slightly differently: 'The gradual reopening of China has also started to be noticed by gays. Slowly a gay scene seems to be emerging in Peking and Shanghai and gradually some people are becoming more tolerant', above n 86, 144.

113 In one of these cases, the Tribunal also refers to a gay sex/cruising internet site's reference to gay mens' bars and cruising spots as authority for the statement that Shanghai has a 'Visible gay community': see RRT Reference N99/27818 (Unreported, Kelleghan, 29 June 1999). Note also that the decision did not go on to record that the author of the quoted report went on to warn that it is illegal to take a same sex partner back to a hotel room and recommended that, if caught, one pays whatever bribe is asked.

114 RRT Reference N97/17155 (Unreported, White, 23 September 1998).

115 It is noteworthy that five months earlier, the Tribunal had refused protection to a gay man who had been arrested and bashed when he was caught cuddling his partner at just such a cruising area — on the basis that he was guilty of a public order offence and so was not being persecuted on the basis of his sexual orientation: see RRT Reference No N97/14768 (Unreported, Thomson, 29 April 1998). This decision was ultimately upheld by the Full Federal Court: MIMA v Gui [1999] FCA 1496 (Heerey, Carr and Tamberlin JJ).

116 In a 1999, case from Bolivia, the Tribunal used Spartacus to rebut earlier evidence that 'the attitude to homosexuality in Bolivia was hostile and there was no visible social support for gay and lesbian rights', by referring to it as evidence that there were 'gay venues in four Bolivian cities'. As in the examples from China, a listing of a small number of venues in the guide was used to support a very broad claim, and again, none of the venues listed were for women.

The Departmental decision noted that according to a 1993 source, homosexuality was not illegal but that the attitude to homosexuality in Bolivia was hostile and there was no visible social support for gay and lesbian rights. However, more recent sources refer to gay venues in four Bolivian cities ('Bolivia' Spartacus International Gay Guide 98/99 Gmünder B 1998 pp 90–91).

RRT Reference N98/23425 (Unreported, O'Brien, 28 April 1999). The 1995/96 has four cities listed, occupying less than a page in total, all with bars marked as exclusively gay or straight but 'of interest' to gays, and cruising areas. There is nothing listed for lesbians. Likewise, 'Spartacus, the gay travel guide published in 1998, says “In Ghana there are no laws prohibiting homosexuality”. The guide lists gay organisations in Accra and Nkawaw and a gay travel group in Accra. (Spartacus International Gay Guide 98/99, Bruno Gmünder Verlag, p 515)': RRT Reference N98/24600 (Unreported, Russell, 26 November 1998). In 1995/96 the organisations listed are 'clubs' with only postal addresses and no sense of what their purpose is; the bars are all coded as being for gay men only.

117 RRT Reference N98/21459 (Unreported, Kelleghan, 8 September 1999).

I also consider that the applicants could alleviate their troubles in Colombia by moving out of their family homes into a house of their own and pursuing a lesbian lifestyle independent of their families and cultivating new friends and support groups. They may do this in Medellin, their home city, where there are eight gay bars/ clubs, five gay discos, one gay restaurant, five cinemas and three gay baths and where a gay support group, Movimento de Liberacion Sexual, is based (see: Spartacus: International Gay Guide, '98/99, 27th edn, pub. Bruno Gmunder Verlag GMBH, RRT Library). I am not entirely satisfied with the credibility of their claim not to have known about these venues and the organisation in Medellin given that they had moved around with other lesbians and owned to have gone to a gay club on a particular occasion; perhaps they had not known about all the facilities available to them. I am confident that they would be able to find out more about these facilities without great difficulty and to avail themselves of the assistance offered by formal and informal support groups.

118 RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998). Other evidence used in this case to determine that Beirut was cosmopolitan and therefore safe was even more spurious:

I am of the opinion that she will be able to live in Beirut as a lesbian without undue interference if she adopts a discreet lifestyle. …. Beirut, with its sophisticated lifestyle (see eg: John McLauchlin's article, Eyes On Beirut, through American Express on the Internet, updated on September 1998: 'Beirut reputedly has the word's highest per capita consumption of both cigars and silicone Now, as gilded young exiles flood back [after the civil war] the city's nightlife has come alive again.') would offer her freedom from the eyes of her family and in-laws, with their conservative localised village power-base.

119 'If I were nevertheless to accept her evidence as being credible, I find that she would be able to relocate to Beirut and adopt a reasonably discreet lesbian lifestyle without the familial and village community harassment she had encountered previously.' RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998).

120 At 10 October 2001.

121 The 1995/96 edition of the guide lists one pornographic cinema, two saunas, a beach and seven cruising locales: see Spartacus International Gay Guide (24th ed, 1995) 557.

122 RRT Reference N98/23328 (Unreported, Hoysted, 27 November 1998).

123 Research Directorate Documentation, Information and Research Branch Immigration and Refugee Board Ottowa, Human Rights Brief: Women in the Islamic Republic of Iran (1994) and Amnesty International, Human Rights are Women's Right, Persecution on grounds of sexual orientation (1995): RRT Reference N98/22363 (Unreported, Morris, 9 June 1999).

124 For a very rare contrast, see extensive, detailed and thoughtful use of gendered evidence in a case concerning a lesbian applicant from India: RRT Reference N98/23844 (Unreported, Layton, 29 August 2000).

125 Gorlick, above n 1, 6 (emphasis in original).

126 RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998), discussed above n 116, using Spartacus.

127 RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998). All of these sites are coded as, 'At your own risk. Dangerous place with risk of personal attack and police activity'. In another case, the RRT quotes Spartacus 1995/96 651 saying, 'homosexuality is allowed on the Philippines and the age of consent is 18' and omits the following: 'presently we have disagreeing information. In the past, we were informed that situation for gays in the Philippines was not the rosiest because when the police were fighting against sex tourism and child prostitution they closed down gay establishments in the process'. RRT Reference N97/13911 (Unreported, Blount, 10 December 1997).

128 RRT Reference V98/09564 (Unreported, Vrachnas, 4 May 1999).

129 For example, RRT Reference V98/08938 (Unreported, Kissane, 2 November 1998) does include the first quote but omits the reference to police raids and the second quote; RRT Reference N97/19670 (Unreported, Holmes, 4 September 1998); RRT Reference N99/27818 (Unreported, Kelleghan, 29 June 1999); RRT Reference N99/26435 (Unreported, Hoysted, 31 May 1999); RRT Reference N98/25578 (Unreported, O'Brien, 2 March 1999); RRT Reference N97/19671 (Unreported, Kelleghan, 25 January 1999) and RRT Reference N97/20446 (Unreported, Zelinka, 11 March 1999) paraphrase elements.

130 RRT Reference N98/26197 (Unreported, Gutman, 11 May 1999); RRT Reference N98/21640 (Unreported, Klintworth, 21 December 1998); RRT Reference N98/21178 (Unreported, Klintworth, 4 December 1998) and RRT Reference N98/21639 (Unreported, Klintworth, 21 December 1998).

131 See eg, RRT Reference N97/20090 (Unreported, Short, 8 March 1999); RRT Reference N97/14768 (Unreported, Thomson, 29 April 1998).

132 See RRT Reference N99/28009 (Unreported, Smidt, 19 June 2000) repeated verbatim in RRT Reference N00/36301 (Unreported, Rosser, 24 December 2001).

133 See eg, RRT Reference N98/21005 (Unreported, Thomson, 25 May 2000); RRT Reference N95/09552 (Unreported, Woodward, 4 September 1998); RRT Reference N98/20994 (Unreported, Rosser, 4 May 1998). In another case, it was cited only as evidence that there were places men could meet for sex: RRT Reference N98/21362 (Unreported, Kelleghan, 28 March 2002). Note that most of the country information utilised was around 5 years old. In direct contradiction to the Tribunal's repeated findings that Bangladesh is tolerant of male homosexual behaviour, more recent and more detailed evidence in a Naz Foundation study (of 124 Bangladeshi men who have sex with men) documented widespread violence and harassment. The study found that 64 per cent of respondents had faced police harassment, 48 per cent had been sexually assaulted by police and a further 65 per cent had been sexually assaulted by mastaans (thugs, who are often involved with the police through bribery and other practices) with 71 per cent reporting other forms of harassment such as extortion and bashings, by mastaans: see Naz Foundation, 'Social Justice, Human Rights and MSM', Briefing Paper No 7, 2002, online at <http://www.nazfoundint.com/home.html> Papers, Essays & Reports, Briefing Papers (at 13 December 2002). See, also, the range of information collated in International Gay and Lesbian Human Rights Commission (IGLHRC), Current Update Packet: Bangladesh, 2001.

134 RRT Reference N97/13911 (Unreported, Blount, 10 December 1997).

135 Spartacus, above n 85, 651–3.

136 The police and justice administration do not take active measures to investigate the existence of homosexuality, nor do they actively hunt homosexuals. All in all, the situation in practice in Iran is drastically different from the impression conveyed by the Shari'a inspired Penal Code. According to information from usually very reliable sources, no homosexuals have been executed in Iran for the last few years. In order to risk policiary sanctions, maltreatment or a short time in custody/jail, regardless of the fact that the penalty according to the law is death or whipping, a homosexual couple must behave with great indiscretion, almost provocatively, in a public place.

Quoted in RRT Reference N98/23824 (Unreported, Morris, 31 July 1998).

137 RRT Reference N97/14713 (Unreported, Hoysted, 3 September 1998). The New Zealand Refugee Status Appeals Authority noted of this information, 'While we accept that such information may well have some relevance, we consider that the experiences of diplomats may not truly reflect the experiences of an Iranian citizen': RSAA Refugee Appeal No 71185/98 (Unreported, Tremewan, Joe, 31 March 1999).

138 RRT Reference N98/24137 (Unreported, McIntosh, 13 October 1998); RRT Reference N98/23086 (Unreported, Rosser, 8 July 1998); F v MIMA [1999] FCA 947 (Unreported, Burchett J, 9 July 1999); RRT Reference N98/25900 (Unreported, Morris, 24 May 1999).

139 RRT Reference N01/37352 (Unreported, Witton, 24 April 2001); RRT Reference V01/12689 (Unreported, Kissane, 24 May 2001); RRT Reference N01/37891 (Unreported, Hardy, 16 October 2001); RRT Reference N01/40131 (Unreported, Keher, 5 November 2001).

140 W133/01A v MIMA [2002] FCA 395, (Unreported, Lee J, 5 April 2002) [18] (emphasis added).

141 Note that Luke Hardy makes this point about lists of beats: RRT Reference N98/24186 (Unreported, Hardy, 31 January 2000). See above n 102.

142 A DFAT cable quoting an unnamed 'highly-reliable lawyer' who alleged that while homosexuals were technically 'not tolerated', 'to my knowledge they do not suffer discrimination, ostracism, violence or death threats' was relied upon in RRT Reference N98/22311 (Unreported, Zelinka, 22 September 1998); RRT Reference N97/19504 (Unreported, Zelinka, 28 September 1998) and RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998).

143 RRT Reference N94/06450 (Unreported, Fergus, 26 July 1996); RRT Reference N95/09584 (Unreported, Blair, 31 October 1996); RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997); RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000). Although three of these cases predate the negative ones, the cable was demonstrably available as it dates from 1995 and is on the RRT database: DFAT cable no. BI500123 of 25 September 1995 CISNET CX11474.

144 RRT Reference N95/09584 (Unreported, Blair, 31 October 1996); RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997); RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000). A positive Canadian case also refers to this source: Re UJJ [1999] CRDD No 45, IRB References T94-07963 and T94-07973) (FTM transsexual and his mother).

145 RRT Reference N93/2240 (Unreported, Fergus, 21 February 1994); RRT Reference N98/23824 (Unreported, Morris, 31 July 1998); RRT Reference N98/24137 (Unreported, McIntosh, 13 October 1998); RRT Reference N98/25900 (Unreported, Morris, 24 May 1999).

146 RRT Reference N97/18050 (Unreported, Berkley, 27 April 1998); RRT Reference N98/23086 (Unreported, Rosser, 8 July 1998); RRT Reference N98/23328 (Unreported, Hoysted, 27 November 1998); F v MIMA [1999] FCA 947 (Unreported, Burchett J, 9 July 1999).

147 RRT Reference N98/23824 (Unreported, Morris, 31 July 1998). The applicant was successful.

148 RRT Reference N98/22363 (Unreported, Morris, 9 June 1999).

149 In RRT Reference N95/09584 (Unreported, Blair, 31 October 1996); RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997); RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000).

150 RRT Reference N98/22311 (Unreported, Zelinka, 22 September 1998); RRT Reference N97/19504 (Unreported, Zelinka, 28 September 1998).

151 Over a dozen decisions concerning applicants from China used virtually identical country information over a period of four years from 1996 to 1999: RRT Reference V96/04281 (Unreported, Billings, 27 June 1996) is identical to RRT Reference V96/04813 (Unreported, Smith, 29 May 1997) and RRT Reference N95/07313 (Unreported, Hardy, 27 June 1997). Then the information is updated somewhat and appears in: RRT Reference N98/21178 (Unreported, Klintworth, 4 December 1998); RRT Reference V98/09564 (Unreported, Vrachnas, 4 May 1999); RRT Reference N98/25853 & N98/25980 (Unreported, Cristoffanini, 11 May 1999); RRT Reference N97/19241 (Unreported, Herron, 9 February 1999); RRT Reference N97/20090 (Unreported, Short, 8 March 1999); RRT Reference N97/19671 (Unreported, Kelleghan, 25 January 1999); RRT Reference N98/25578 (Unreported, O'Brien, 2 March 1999); RRT Reference N98/23196 (Unreported, McIllhatton, 4 March 1999); RRT Reference N97/20446 (Unreported, Zelinka, 11 March 1999). In cases involving lesbian applicants from China, the country information used in RRT Reference N98/21639 (Unreported, Klintworth, 21 December 1998) is repeated verbatim in RRT Reference N98/21640 (Unreported, Klintworth, 21 December 1998). The same three page long slab of information is then cut and pasted (with acknowledgement) and used, unchanged in RRT Reference N98/26197 (Unreported, Gutman, 11 May 1999). For discussion see Millbank, 'Imagining Otherness', above n 2.

152 In one decision on Iran the Tribunal held that gay men could live 'discreet' and therefore safe lives by visiting a local park for sex. The applicant's evidence was that he had been arrested by the Basiji in that very park, detained and bashed: RRT Reference N01/37352 (Unreported, Witton, 24 April 2001). The Federal Court noted the manifest inconsistency of these findings in overturning the decision: W133/01A v MIMA [2002] FCA 395 (Unreported, Lee J, 5 April 2002). In another case the Tribunal held it was possible to conduct a lesbian relationship in Iran without coming to the attention of state or religious authorities. This was despite that fact that the basis of the applicant's claim was that when the relationship had broken up, her partner had publicly identified her as a lesbian, and that as a result she had begun receiving threats from the local community: RRT Reference N98/23328 (Unreported, Hoysted, 27 November 1998).

153 In the period 2000–02, four decisions on Iran are available, two of which fully reproduce country information without any re-wording by the Tribunal member: RRT Reference N01/40131 (Unreported, Keher, 5 November 2001) is a positive decision, identical country information appears in RRT Reference N01/37891 (Unreported, Hardy, 16 October 2001), a negative decision. The latter decision-maker includes an acknowledgement that he is 'quot[ing] here almost in full' from DIRB, but the former does not state this. In the same period, five decisions concerning applicants from Bangladesh appear, of which four reproduced country information. There were two identifiable boilerplates being used in these cases: RRT Reference N99/28400 (Unreported, Witton, 26 September 2001) was identical to RRT Reference N98/21005 (Unreported, Thomson, 25 May 2000). RRT Reference N00/36301 (Unreported, Rosser, 24 December 2001) used large sections of country evidence with minor re-phasing from RRT Reference N99/28009 (Unreported, Smidt, 19 June 2000). All four decisions on Bangladesh were negative.

154 Analysis that an applicant has been sexually active in the past and therefore is not disadvantaged by the 'discretion' requirement from RRT Reference N01/37352 (Unreported, Witton, 24 April 2001) appears to be very similar to the wording of Tribunal reasons quoted on appeal in Nezhadian v MIMA [2001] FCA 1415 (Unreported, Finn J, 18 October 2001) [4].

155 Migration Act 1958 (Cth) s 368.

156 The IRB considered eight cases from Iran — two failed on credibility grounds: Re FVY [1998] CRDD No 20 (QL), IRB Reference T97–01239 and Re TQB [1998] CRDD No 101 (QL),IRB Reference V97–01284.

157 Re WXV [1998] DSSR No 244 (QL), IRB Reference A98–00298.

158 The IGLHRC mission statement reads, '[f]ounded in 1990, the International Gay and Lesbian Human Rights Commission (IGLHRC) is a non-governmental, non-profit organization that seeks to defend and advance the human rights of all peoples and communities subject to discrimination or abuse on the basis of sexual orientation, gender identity, or HIV status. IGLHRC responds to human rights violations in partnership with constituencies throughout the world through documentation, advocacy, and public education, with usage of supporting strategies such as coalition building, networking, and technical assistance.' See IGLRHC website <http://www.iglhrc.org/> at 16 December 2002.

159 Prior to June 2002, this information covered approximately 20 countries. From June 2002 the scope of countries was reduced to: Brazil, Colombia, Egypt, India, Indonesia, Iran, Malaysia, Mexico, Nigeria, Pakistan, Uganda, Ukraine — and three thematic packets on the Islamic world, transgender issues, and lesbian issues respectively.

160 In this sense the packages are difficult to use as they do not attempt to provide a précis, but they also thereby avoid oversimplified or falsely coherent overviews such as are often found in DFAT cables.

161 See <http://www.iglhrc.org/asylum/rif.html> at 16 December 2002.

162 LaViolette, 'Proving a Well-Founded Fear' above n 42. Note that the IRB undertook training in 1995 and 1996 on sexual orientation and refugee determination. The training focused on sources of documentary evidence, including listings of what sources are available from lesbian and gay NGOs, and a presentation on the difficulties involved in obtaining documentation of abuses. The training also included material on the appropriate and sensitive questioning of applicants about their sexuality when assessing credibility: La Violette, 'Sexual Orientation and the Refugee Determination Process' above n 42, 14.

163 Re EYW [2000] CRDD No 116 (QL), IRB Reference T98-10333.

164 Mantle, above n 51.

165 Although there were a handful of references to other IGLHRC resources, such as published books on particular countries, or 'Action Alerts' on specific issues, many of these were in fact quoted from another primary source, see eg, RRT Reference N98/24702 (Unreported, Layton, 16 February 2000).

166 For example, some sources made reference to Lebanon being a 'puppet state' of Syria, and noted that the official Syrian stance on homosexuality was extremely hostile. See Kamal Tayeb Fiazi, 'Expert Declaration [on conditions for lesbians, gay men, bisexuals, and transgenders living in Lebanon]', IGLHRC Current Update Packet: Lebanon – Status of Sexual Minorities, 8 March 2001, 20.

167 See, eg, RRT Reference N94/06450 (Unreported, Fergus, 26 July 1996); RRT Reference N95/10132 (Unreported, Griffin, 16 September 1997); RRT Reference N98/22311 (Unreported, Zelinka, 22 September 1998); RRT Reference N97/19504 (Unreported, Zelinka, 28 September 1998) and RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998).

168 The IGLHRC materials make clear that there is a 70/30 split between Muslims and Christians and religious identity is of crucial importance as a social identifier.

169 There was little understanding in the RRT of the way the Lebanese judicial system operates. It was not clearly pointed out that the criminal code is inspired by religious perspectives on behaviour, including crimes of morality (the category into which homosexuality falls). Although one positive decision, RRT Reference N95/09584 (Unreported, Blair, 31 October 1996), made reference to the 'morality police' (police des mœurs), the operation of this force, a branch of the Internal Security Forces, was completely ignored by the RRT in virtually all other instances.

170 Also, unlike the Australian cases (both positive and negative), the decision noted the fact that the claimants had been subject to opprobrium and hateful intimidation tactics within the Arab community in Canada and extrapolated from this to say that claims of persecution on return to Lebanon were reinforced by this fact.

171 The DFAT evidence that prosecutions are 'rare' is contradicted by evidence in RRT Reference N95/09584 (Unreported, Blair, 31 October 1996); RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997); RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000) (in all of which the applicant succeeded) from the Beirut newspaper Al Nahar dating from 1992-94 detailing numerous arrests of homosexual men. This was the only use of country of origin media that occurred in any of the RRT decisions – in contrast, the IGLHRC used a great deal of such media, especially the Beirut Daily Star (the leading English-language newspaper in Lebanon).

172 See RRT Reference N98/22311 (Unreported, Zelinka, 22 September 1998) and RRT Reference N97/19504 (Unreported, Zelinka, 28 September 1998). There was no understanding of the difficulties faced by gay and lesbian applicants in finding sources to back up their claims. Specifically, the Tribunal did not acknowledge the virtual impossibility of using one's family to assist in providing documentary evidence supporting the claim to asylum – 'family members and often friends are terrified of the Lebanese authorities discovering that they have said anything negative about the Lebanese state — or worse, about Syria': Fiazi, above n 166.

173 RRT Reference N95/09584 (Unreported, Blair, 31 October 1996); RRT Reference N95/09483 (Unreported, Mathlin, 26 November 1997); RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000). The fourth, RRT Reference N94/06450 (Unreported, Fergus, 26 July 1996), focused only on the fact that homosexuality was illegal under the penal code.

174 However, the one positive lesbian case in Australia does so: see above, n 123.

175 'The independent evidence set out above ... suggests that there is a considerable difference between the explicit provisions of the Islamic Penal Code in relation to homosexuality and the situation in practice. The evidence indicates that the Iranian authorities do not actively seek out homosexuals and that the risk of prosecution for homosexuality is minimal as long as homosexual activities are carried out discreetly': RRT Reference N98/23086 (Unreported, Rosser, 8 July 1998).

176 Re VAC [1998] CRDD No 161 (QL), IRB Reference V96-03502 noted that the IRB had before it certain pieces of information suggesting that, even though the death sentence was rare in Iran, the authorities can use the fact that homosexuality is illegal in order to abuse and humiliate gay and lesbian Iranians. Further, Re CXS [1995] CRDD No 134 (QL), IRB Reference T94ă07573 and T95–02911 pointed out that the effect of the penal code's provisions was to 'set apart an identifiable class of individuals (homosexuals) and revile them because of their sexual orientation.'

177 RRT Reference N98/22311 (Unreported, Zelinka, 22 September 1998); RRT Reference N97/19504 (Unreported, Zelinka, 28 September 1998); RRT Reference N97/18897 (Unreported, Kelleghan, 13 November 1998).

178 The IGLHRC material states that internal flight is 'unlikely if not impossible'because of the close-knit nature of Lebanese society, and the fact that people are easily identified and tracked down by members of their community of origin. Only RRT Reference N99/28440 (Unreported, Mathlin, 20 January 2000) made this point — drawing upon IRB material.

179 Homosexuality has a culturally-specific meaning in Lebanon, and is intimately connected to strongly-held beliefs about gender. Western notions of sexual identity cannot be blindly pasted onto Lebanese society. Gay males tend to be conceived of as men 'wanting to be women' — an identity which is itself regarded as lowly. To be a homosexual male is to be reviled not only for having sex with men, but also for having been 'submissive' in the sex act. These understandings of homosexuality illustrate that it is not appropriate to substitute information specific to gay men in cases concerning lesbians. Fiazi, above n 166, 8-9.

180 Women who are perceived as lesbians or who are 'out' will likely 'be condemned by family, society and the security forces.' Thus, there is little protection in being 'discreet' – even being perceived as transgressing norms of feminine behaviour is potentially dangerous. Further, 'women who defy gender norms around sexual behaviour or identity are seen to bring shame on family honour.' Men have 'far-reaching power and control over their women relatives' — as a consequence, these women can be 'victim[s] of violence within as well as outside the family'. Ibid 9.

181 The IRB cases cite original sources rather than the IGLHRC. The sources cited are: 'The Trials and Tribulations of Lebanon's Young Gays', The Daily Star (Beirut), 26 October 1998 (Note 5); Decision Immigration Judge Elizabeth A Lamb, US Department of Justice Executive Office for Immigration Review, Immigration Court NY, May 5, 1997 (Note 7); and 'Homosexuality in Lebanon', extracted from the Third Pink Book, above n 101 (Note 5): Re UJJ [1999] CRDD No 45, IRB References T94-07963 and T94-07973) (FTM transsexual and his mother). All of these sources are in the IGLHRC Country Packet: Lebanon #2.

182 RRT Reference N98/23824 (Unreported, Morris, 31 July 1998). See also very similar comments by the RRT in a Bangladesh case soon to be heard by the High Court: 'it is not unusual to see two men holding hands in public, as this is not seen as homosexual affection but merely as physical contact', RRT Reference N99/28009 (Unreported, Smidt, 19 June 2000).

183 Conversely, in another claim from Iran, the Tribunal refused to believe that the applicant was gay on the basis that the applicant did not conform to its understanding of gay men's interests and cultural reference points, due to the fact that the applicant could not identify 'an[y] art, literature, song lyrics or popular culture icons [that] spoke to him'. The Tribunal while 'not demanding that the Applicant be a leading Gide scholar or even a Marilyn Monroe fan' or purporting to 'expect [that] all or any homosexual men in Iran … take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt's tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna' was nonetheless 'surprised to observe a comprehensive inability on the Applicant's part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him': quoted on appeal WAAG v Minister for Immigration [2002] FMCA 191 (Unreported, Raphael FM, 30 August 2002) [10]. While the decision was initially set aside in the Federal Magistrate's Court on the grounds of bias as revealing a 'closed mind' or 'pre-formed template into which the Tribunal considered all homosexuals males would fit', this conclusion on bias was overturned on appeal to the Full Federal Court in MIMIA v SBAN [2002] FCAFC 431 (Unreported, Heerey, Moore and Kiefel JJ, 18 December 2002). The Full Court reinstated the Tribunal decision as it held that there was no evidence of a 'template', stating at [65]: 'As a matter of common sense, this is a perfectly legitimate ... technique for an administrative decision-maker. To take an example removed from the ... present case, if an applicant claimed a fear of persecution on the grounds of being a Catholic, the RRT might test this assertion by enquiring as to the applicant's knowledge of matters of Catholic doctrine, ritual, traditional belief and the like.'

184 'Given societal habits in Bangladesh he can show affection for other men in terms of holding hands with them or hugging them without causing outrage and risking harm. (In passing, I make the point that in cultures such as Australia's where such acts are automatically identified with homosexuality there is less public tolerance of them than is the case in Asian cultures such as Bangladesh's.)' RRT Reference N98/21362 (Unreported, Kelleghan, 28 March 2002).

185 For instance, decisions about Iran sometimes cite the view that only the so-called 'passive'partner in anal sex is likely to be viewed as homosexual: see, eg, RRT Reference N97/14713 (Unreported, Hoysted, 3 September 1998). Such a conception might provide safety for one party to anal sex, but the danger of the other is not countenanced. In any case this interpretation is not borne out under the Iranian criminal provisions, which cover both parties as other cases have noted: see eg RRT Reference N98/23086 (Unreported, Rosser, 8 July 1998).

186 So, for example, in a 2001 case concerning a gay man from Iran the Tribunal considered evidence of a continuum of male-male sexual activity and concluded that, '[t]here is nothing in the evidence before the Tribunal to indicate that a homosexual man in Iran is at risk of attracting the attention of the authorities merely for being homosexual': RRT Reference N01/37352 (Unreported, Witton, 24 April 2001) [3].

187 Cultural codes that delineate some acceptable 'phase' of male-male sexual activity, taken in conjunction with social mores that inscribe fixed gender roles and prioritise marriage, suggest to us a heightened concern with preserving female pre-marriage chastity rather than accepting male bi- or homosexuality. It is noteworthy that in none of the cases was there any country evidence concerning an acceptable phase of female-female sexual activity.

188 In RRT Reference N98/24137 (Unreported, McIntosh, 13 October 1998), the applicant pointed out that all sexual relationships (whether homosexual or heterosexual) between individuals outside of marriage would be treated extremely harshly if revealed.

189 See, eg, RRT Reference N98/23086 (Unreported, Rosser, 8 July 1998), 'if anything, the independent evidence suggests that it is far easier for men to be publicly affectionate toward each other in Iran than it is for a man and a woman.' See also RRT Reference N01/37352 (Unreported, Witton, 24 April 2001).

190 Likewise decisions on forced marriage or pressure to marry in Bangladesh did not see this as in any way connected to sexual orientation. See, eg

the Tribunal finds that such social and traditional pressure would be one that is directed at all single Bangladesh males (and females) many of whom will be pressured to enter into marriages, often arranged by their parents, that are not to their liking. The Tribunal finds that any such pressure, even if it were some significant detriment or disadvantage of sufficient magnitude as to constitute persecution for the purposes of the Convention, would not be being caused for reason of the applicant's homosexuality. Rather it represents general pressure exerted upon all single adults in that society.

RRT Reference N99/28400 (Unreported, Witton, 26 September 2001). See also MMM v MIMA [1998] 1664 FCA (Unreported, Madgwick J, 22 December 1999), and contra RRT Reference N98/24186 (Unreported, Hardy, 31 January 2000).

191 Re VAC [1998] CRDD No 161 (QL), IRB Reference V96-03502 explicitly renounced this argument, saying that it was not 'reasonable' to demand that the applicant be clandestine: 'Why should he have to live a discreet life as a homosexual in any country, if homosexuality and his right to be a homosexual is something that is a basic fundamental human right for him?' Similarly, Re IPD [1997] CRDD No 296 (QL), IRB Reference T97- 02485 held that information stating that discreet homosexuals would be tolerated in Iran was not a satisfactory argument about their safety given that all sources agreed that open displays of homosexuality would not be permitted.

192 Migration Act 1958 (Cth) s 431.

193 Communications with Kristian Bolwell, RRT, 8 November 2002 and 13 December 2002. Hence the Tribunal refused to release the decision currently on appeal to the High Court: S 395/2002 and S 396/2002, see above n 68. In the period 2000–02, we located 11 Federal Court decisions, of which we were able to gain access to only two of the first instance decisions. This demonstrates that the Tribunal is releasing a fairly small proportion of its decisions, including those subject to judicial review.

194 In 1998 and 1999 for instance, we have 64 and 56 Tribunal decisions, while in 2000 the number drops to 23; to 21 in 2001; to 14 in 2002.

195 Recommendation 7, '[p]rotect refugees fleeing torture based on sexual identity' the following specific requirement, '[w]hen assessing claims, country-specific information should be actively sought from LGBT, women's and other human rights organizations which document torture, ill-treatment and other abuses against LGBT people.' Amnesty International, Crimes of Hate, above n 5, 63.

196 Recommendation 7, '[t]raining should include how to eliminate bias in interviewing, documenting and accessing country-specific information, and should involve LGBT rights groups': ibid 62.

197 Recommendation 7, '[g]uidelines should be issued to immigration officials and others involved in the asylum process for the sensitive handling of claims based on sexual orientation': ibid.