RefugeesArePeople Perth walk. Flickr/Louise Coghill. Some rights reserved.It’s no secret that Australia’s policy of mandatory and indefinite offshore detention is harming asylum seekers. Men detained in the Manus processing centre have died. Women and children detained on Nauru have been abused. The United Nations have repeatedly assessed conditions in the camps as in violation of basic standards of human rights.

But what makes these policies even crueller is their inflexible application. Gay asylum seekers face particular dangers under these policies: for example, gay men have been sent to Papua New Guinea, a country which has criminalised consensual homosexual sex between males.

Australian law now mandates that all asylum seekers arriving by boat should either be sent to Nauru or PNG’s Manus Island for processing. While families, women and children have been sent to Nauru, over 1000 single adult men have been transferred to Manus Island. If they are found to be refugees, they may then be resettled in PNG. Yet PNG’s criminal code makes it a serious criminal offence for a man to have consensual sex with another man, an act deemed to be ‘against the order of nature’. The penalty for such an offence is imprisonment of up to 14 years.

Young Liberty for Law Reform recently hosted an event at Melbourne’s Midsumma Festival to draw attention to the plight of Lesbian, Gay, Bisexual, Trangender, Queer and Intersex (LGBTQI) asylum seekers under Australia’s current mandatory offshore processing and resettlement policy.

Police remove Christians from prayer sit-in for asylum seekers. Flickr/Jeff Tan. Some rights reserved.Determining refugee claims on the basis of sexuality-based persecution is a challenging and complex process at the best of times. According to LGBTQI rights advocate Senthorun Raj and barrister Kristen Walker SC, Australia’s form in determining sexuality-based refugee claims isn’t great because of decision makers’ failure to understand the complexity, fluidity and diverse nature of cultural and sexual identity. Decision makers have often relied on western-centric homosexual stereotypes to assess applications. Applicants have been questioned about their knowledge of the gay club scene in their country of origin or the music of ‘gay icons’ like Madonna.

The complex process for determining sexuality-based refugee claims is made infinitely more challenging because PNG criminalises conduct which may need to be disclosed in the course of substantiating such claim. Same-sex attracted asylum seekers sent to PNG for processing are caught in a catch-22 situation. Those who wish to make a claim for refugee status on the basis of their sexual orientation need to disclose it. However they face the possibility of discrimination and persecution under PNG’s laws if they do so. 

On arrival to Manus Island, all asylum seekers are made aware of the attitudes of the PNG government towards consensual sex between men. For instance, The Guardian reported last year that an orientation given to newly arrived asylum seekers at Manus Island contained an image of two men kissing with a large red cross through it accompanied by a warning that “homosexuality is illegal in Papua New Guinea. People have been imprisoned or killed for performing homosexual acts.”

Citizens for Refugees Banner. Flickr/Cheryl Howard. Some rights reserved.Such warnings are clearly not conducive to men – indefinitely detained on a remote island in harsh conditions – fully, frankly and persuasively disclosing conduct which they’ve just been told is a crime. Nevertheless, the outcome of the refugee claim, and indeed their lives, may well depend on them doing so.

Dame Carol Kidu – a former PNG Member of Parliament and chair of PNG’s expert panel on refugee resettlement policy – reported that while PNG’s anti-homosexual laws are rarely used, they may still be abused. The mere existence of such laws means that asylum seekers and resettled refugees may face intimidation, threats, fear and violence, with no real recourse to authorities due to the possibility of facing prison time.

The resettlement of refugees in PNG will already be challenging. Dame Carol noted that while many parts of Papuan civil society – such as local churches and community groups – expressed their willingness to try and support the integration of refugees into PNG society, negative stereotypes are still widespread. Many Papuans still consider asylum seekers to be ‘terrorists’, while many of the asylum seekers view the Papuans as ‘cannibals’. Given PNG's criminalisation of homosexuality, the situation will be even worse for LGBTQI refugees, making any chance of successful resettlement extremely unlikely.

Processing and resettling gay men in a country that continues to persecute people on the basis of this very attribute is not only cruel and unnecessary, it is also a breach of international law. As a signatory to the Refugee Convention and other important human rights treaties, Australia is bound to not return a person to a state where their lives or freedom may be threatened. This is exactly what we are doing by sending gay men to a country that criminalises consensual sex between men.