Are homosexuals refugees if they can conceal their sexuality

Discussions, debates and support for and about the Gay, Lesbian, Bi, Trans punk rawk community.
xsfat
Posts: 6246
Joined: Tue Aug 20, 2002 5:58 pm
Location: Auckland

Are homosexuals refugees if they can conceal their sexuality

Postby xsfat » Thu Jul 22, 2010 12:14 am

http://www.nzlawyermagazine.co.nz/NZLaw ... fault.aspx
HJ and HT were homosexual men, from Iran and Cameroon respectively, who had sought asylum in the UK on the basis that they would face the risk of persecution on the grounds of sexual orientation if returned to their home countries. In both Iran and Cameroon, it is a criminal offence punishable by imprisonment (and in the case of Iran, by the death penalty) for consenting adults to engage in homosexual acts. The Secretary of State had refused asylum in both cases.
[...]
The Court of Appeal had found that if HJ and HT were returned to their home countries, they would conceal their sexual orientation in order to avoid the risk of being persecuted, and as such, they would not come to the attention of the State authorities, and so would not be at risk of persecution. Accordingly, said the Court of Appeal, neither HJ nor HT had a “well-founded fear of persecution” that entitled them to protection under the United Nations Convention Relating to the Status of Refugees
[...]
Lord Rodger summarised the Supreme Court’s view of the issue in question at [40]:
“A gay man applies for asylum in this country. The Secretary of State is satisfied that, if he returns to his country of nationality and lives openly as a homosexual, the applicant will face a real and continuing prospect of being beaten up, or flogged, or worse. But the Secretary of State is also satisfied that, if he returns, then, because of these dangers of living openly, he will actually carry on any homosexual relationships ‘discreetly’ and so not come to the notice of any thugs or of the authorities. Is the applicant a ‘refugee’ for purposes of the [Convention]? The answer is Yes.”
[...]
“The Convention does not permit, or indeed envisage, applicants being returned to the countries of their nationality ‘on condition’ that they take steps to avoid offending their persecutors,” said Lord Hope at [26].
[...]
“To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect – his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum … the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.”

User avatar
PertHJ
Inventor of 'LOAL'
Posts: 19696
Joined: Tue Aug 20, 2002 8:53 pm
Location: Milano

Re: Are homosexuals refugees if they can conceal their sexua

Postby PertHJ » Thu Jul 22, 2010 3:15 pm

That's messed up. People can seek asylum for religious beliefs right? surely they could just 'act discreetly' too
http://hungjurynz.bandcamp.com/
http://www.discogs.com/user/pertHJ

Drinking beers, hell yeah!! Smoking dope, KICK TO THROAT!!

User avatar
xSUSPECTx
argumentative cunt
Posts: 10959
Joined: Sat May 17, 2008 12:18 pm
Location: the straight edge

Re: Are homosexuals refugees if they can conceal their sexua

Postby xSUSPECTx » Thu Jul 22, 2010 6:05 pm

yeh thats pretty bullshit.
Carly Ngarotata-Simon wrote:U misd two commas u illiterate fuk. It should read...mainstream, whilst at the same time, ... Who da dumb cunt now. Im bilingual. I can txt speak n also write in 'proper' english havin bn a legal secretary 4 13 years. So im actualy fukn streams ahead in inteligence ova u. Plus i hav a life! I dnt waste my time typing evry leta out cos i have a life! Dum ass. Peace, im out. Hahahahaha

Spots2012 wrote:do animal rights activists vehemently oppose Maori eating pigs etc, or are they willing to let that one slide?

xsfat
Posts: 6246
Joined: Tue Aug 20, 2002 5:58 pm
Location: Auckland

Re: Are homosexuals refugees if they can conceal their sexua

Postby xsfat » Thu Jul 22, 2010 6:40 pm

Yeah, it is wrong as a matter of principle. As stated above, the Supreme Court has overruled that defective line of reasoning in the UK.
That defective line of reasoning has not been adopted in NZ for at least quite some time. I only posted the article because I thought it was a topic of interest.

For example, in the NZ case of Refugee Appeal No. 74665/03, decided in July 2004
It is difficult to see what value human rights would have in any context if the individual was required to surrender those rights in the face of discrimination or persecution. In our view the Refugee Convention protects certain rights because of their intrinsic importance. Such protection is not made contingent on whether those rights can be hidden. [para 81]
[...]
If the proposed action in the country of origin falls squarely within the ambit of that right the failure of the state of origin to protect the exercise of that right coupled with the infliction of serious harm should lead to the conclusion that the refugee claimant has established a risk of “being persecuted”. In these circumstances there is no duty to avoid the anticipated harm by not exercising the right, or by being “discreet” or “reasonable” as to its exercise.[para 82]
[...]
To avoid severe criminal penalties, extrajudicial beatings, societal disapproval, public humiliation, discrimination and unequal treatment, homosexuals in Iran must be “discreet”. They are denied a meaningful “private” life. For most their sexual orientation must be carefully hidden.[para 126]

The appellant wishes to escape this situation, particularly the denial of a private life, his unequal treatment and the potential judicial and extra-judicial consequences of exercising a fundamental human right. His claim to refugee status is based on well established principles of international human rights law, namely the right to privacy (Article 17 ICCPR) and the rights to equality and non-discrimination (Articles 2(1) and 26 of the ICCPR).[para 127]


Since I'm rambling on the topic, the following by the Constitutional Court of South Africa rings true on this topic too. National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 (1) SA 6:
In the case of gays, history and experience teach us that the scarring comes not from poverty or powerlessness, but from invisibility. It is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group. [para 127]

... Gays constitute a distinct though invisible section of the community that has been treated not only with disrespect or condescension but with disapproval and revulsion; they are not generally obvious as a group pressured by a society and the law to remain invisible; their identifying characteristic combines all the anxieties produced by sexuality with all the alienating effects resulting from difference; and they are seen as especially contagious or prone to corrupting others. None of these factors applies to other groups traditionally subject to discrimination, such as people of colour or women, each of whom, of course, have had to suffer their own specific forms of oppression.... [para 128]


Return to “Queer Topics”

Who is online

Users browsing this forum: No registered users and 1 guest