31420-nyi_44-2 Sheet No. 5 Side A 03/19/2012 11:22:47 R R R R R R R R (1990) ? . . 346 —the first LOSET 1 ** C ARM ARRANT ?...... 340 H W OBJOY EAL P R E B EHAVIOR ASON J B ISK NDOGENOUS R E PISTEMOLOGY OF THE (1999)), this paper does not seek to AND , E * 315 ...... 358 note 27. ROUBLE NTRODUCTION I ? ...... 371 T EDGWICK MPLAUSIBLE ATHAWAY ECOGNIZING I See infra OLLOWING FROM K. S R ENDER ...... 352 TATUS F VE , G E S C. H ...... 315 ISK AN AN VOID ...... 387 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER R C A Psychological Harm Privacy UTLER AMES J HY B OW OES EFUGEE B. R A. Addressing the refugee claims of two gay men Addressing the refugee a huge gulf has opened up in attitudes to and under- a huge gulf has opened up in attitudes societies . . . . It is standing of gay persons between UDITH I. H J * James E. and Sarah A. Degan Professor of Law and Director, Program 1. article as “queer” cases to We refer to the two cases discussed in this II. W ** Ph.D. candidate, Faculty of Law, University of Cambridge; Hauser III. D ONCLUSION NTRODUCTION engage the broader question of the validity of heteronormative discourse or engage the broader question of the validity other more theoretical concerns. Moreover, because the claimants in the cases under consideration did not themselves seek to challenge assimilation- ist assumptions (as, perhaps ironically, we believe that the courts did), we generally refer to them as individuals using more traditional labels such as “homosexual” or “gay.” in Refugee and Asylum Law, University of Michigan. The research assistance in Refugee and Asylum Law, University of Catherine Dauvergne, Michelle of Reta Bezak and the helpful comments Purcell, Hugo Storey, and Ralph Foster, Rodger Haines, Raza Husain, Kate Wilde are acknowledged with appreciation. University School of Law. Visiting Doctoral Researcher, New York the question of assimilationist as- emphasize that these decisions confront the overtly political challenge sumptions in refugee law in a way that echoes “queer” as a sign of resistance of activist groups that embraced the term against assimilationist politics. as a While “queer theory” has since emerged from the work of Michel Foucault form of critical theory drawing strength (see, for example, and C \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 1 8-MAR-12 9:05 I from Iran, facing the prospect of imprisonment and lashing the prospect of imprisonment from Iran, facing laws; the second under that country’s extreme anti-sodomy neighbors and assaulted by from Cameroon, terrorized by his partner—Lordpolice after he was seen kissing his Hope of the Court, observed that United Kingdom’s new Supreme 31420-nyi_44-2 Sheet No. 5 Side A 03/19/2012 11:22:47 A 03/19/2012 Sheet No. 5 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 5 Side B 03/19/2012 11:22:47 HE see T , ), [2010] . at 19; Id [Vol. 44:315 Resolution . N While not so 2 . 3 HJ and HT AND POLITICS most of the North has now moved to embrace most of the North INTERNATIONAL LAW 4 http://www.un.org/en/ga/third/65/docs/voting_sheets/ Gay Rights Row Breaks Out over Amended U Gay Rights Row Breaks Out over Amended , Dec. 21, 2010, http://www.guardian.co.uk/world/2010/dec/21/ There is little doubt that the “huge gulf” referred to by that the “huge gulf” referred There is little doubt one of the most demanding social issues of our time. of our social issues demanding of the most one what it can pledged to do government has Our own to grow but it seems likely the problem, to resolve for many years.remain with us and to In the are likely gays and lesbians more and more meantime is being here, as protection seek protection to have to by the state in their home countries. denied to them with that they are provided It is crucially important the they are entitled to under the protection that Convention—no if I may be permitted to coin more, but certainly no less. a well-known phrase, as a subversion. Senator Joseph McCarthy and his homosexual as- sistant, Roy Cohn, searched out and exposed ‘known homosexuals’ in government service, some of whom lost their jobs while others took their own lives. In an America in which homosexuals had be- 4. By the mid-twentieth century homosexual behavior was also seen 2. Dep’t ( HJ (Iran) v. Sec’y of State for the Home 3. when the Third Committee of This divide was made particularly clear Anita Snow, UARDIAN also L.65.pdf. a The United States and other developed countries spearheaded approved on December 21, 2010 by successful drive to reverse this decision, 71st plen. mtg. at 20, U.N. Doc. a vote of 93-55-27: U.N. GAOR, 65th Sess., A/65/PV.71 (Dec. 21, 2010).than Turkey, All OECD countries (other for sexual minorities. which did not vote), supported protection UKSC 31, [3], [2011] 1 A.C. 596, 619–20 (appeal taken from Eng. & Wales C.A.). 79-70-17 in favor of a motion by the United Nations General Assembly voted sexual minorities against extrajudi- Benin to delete a call for protection of cial, summary, or arbitrary resolutions. Third Recorded Vote, U.N. GAOR, A/C.3/65/L.65 (Nov. 16, 2010), Comm., 65th Sess., 46th mtg., U.N. Doc. gay-rights-row-un-resolution (highlighting that Western nations opposed the gay-rights-row-un-resolution (highlighting list of protected minorities).deletion of “sexual orientation” from the Fur- recent resolution on “Human thermore, the Human Rights Council’s Identity” affirms the universality of Rights, Sexual Orientation and Gender violence and discrimination based human rights, and notes concern about on sexual orientation and gender identity. 17th Sess., H.R.C. Res. 17/19, (15 June 2011) (passing the res- 34th mtg., U.N. Doc.A/HRC/17/L/9/Rev.1 olution with a vote of 23-19-3). available at G Lord Hope is in fact an ever-increasing divide between states fact an ever-increasing divide between Lord Hope is in and less developed worlds. of the developed 316 \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 2 8-MAR-12 9:05 long ago institutionalized homophobia was common in devel- homophobia was common long ago institutionalized oped countries, 31420-nyi_44-2 Sheet No. 5 Side B 03/19/2012 11:22:47 B 03/19/2012 Sheet No. 5 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 6 Side A 03/19/2012 11:22:47 E- ES- 317 EWS B L L ’ . at 49. . at 47. Id NT PONSORED Berlusconi: Id CTIVITY , I CBC N -S A EX TATE have now all have now S 5 TTOSSON , S AME N O ’ S now recognized in now recognized SS 8 http://ilga.org/ilga/en/ , Nov. 2, 2010, http:// ANIEL A D IMES ROHIBITING . T P NTERSEX the same evolution has not the same evolution available at 10 (2000). ASH 10 I AWS W L , 9 ISTORY (2010), 46 RANS AND : A H URVEY OF S QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER And at the level of affirmative rights, laws the level of affirmative And at , T DULTS 6 with full marriage rights with full A 7 ORLD OMOPHOBIA ISEXUAL : A W , H , B TWEEN BIAN . Resistance to the affirmation of gay rights in developed countries . at 46. AY ONSENTING ONE Id Id C F With very few exceptions, come the target of state-sponsored persecution, homophobia was state-sponsored persecution, homophobia come the target of prejudice.an absolutely acceptable 1960s, 82 percent of By the be- 58 percent of American women surveyed American men and and atheists were more dangerous lieved that only Communists than homosexuals. , G 5. countries and the years in For example, the following is a list of select 8. rights of marriage, through Same-sex couples are offered most of the 9. 7. States expressly prohib- As of May 2010, 29 of the 34 OECD Member 6. 10. Just as the Northern record of support for gay equality is not uni- OMOPHOBIA YRNE www.washingtontimes.com/news/2010/nov/2/berlusconi-better-love-wo- men-gays/. form, neither is it the case that the record of less developed states is uni- formly inattentive to gay rights. For example, South Africa is one of the few which they decriminalized same-sex sodomy: Portugal (1983); New Zealand which they decriminalized same-sex sodomy: in Scotland in 1981 and (1986); the United Kingdom (decriminalized Estonia (1992); Ireland (1993); Northern Ireland in 1982); Israel (1988); decriminalize same-sex sodomy in Australia (Tasmania was the last state to federally in 2003); Portugal 1997); the United States (decriminalized (2010); Iceland (2010); and Argentina (2010). article/1161; Timeline: Same-Sex Marriage Around the World, article/1161; Timeline: Same-Sex Marriage does remain, however, as the Italian Prime Minister has made clear in his does remain, however, as the Italian Prime stating that “[i]t’s better to be pas- response to allegations of a sex scandal, gay.”sionate about beautiful women than to be Nicole Winefield, Better to Love Women than Gays a civil partnership or similar legal classification, in Austria, Denmark, Fin- a civil partnership or similar legal classification, Switzerland, the United King- land, Germany, Hungary, Israel, New Zealand, states of the United States. dom, some states of Australia, and some ited discrimination in employment based on sexual orientation. ited discrimination in employment based H (May 29, 2009), http://www.cbc.ca/news/world/story/2009/05/26/f-same- sex-timeline.html. B 2012] gay rights. quar- nearly a in that existed laws anti-sodomy The 1980s as late as the countries ter of developed \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 3 8-MAR-12 9:05 mandating non-discrimination on the basis of sexual orienta- on the basis non-discrimination mandating devel- in nearly all are in place to employment tion in access oped countries, taken place in the political South.taken place in the In particular, anti-sodomy been eliminated. Argentina, Belgium, Canada, the Federal District of Mexico, the Federal Belgium, Canada, Argentina, Sweden, and Norway, Portugal, Spain, Iceland, Netherlands, States. parts of the United 31420-nyi_44-2 Sheet No. 6 Side A 03/19/2012 11:22:47 A 03/19/2012 Sheet No. 6 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 6 Side B 03/19/2012 11:22:47 L ’ 13 It July NT RIEN- I IGHTS 11 O R IOLENCE LACKMAIL : V [Vol. 44:315 : B RIMINALIZING UMAN EXUAL IFE Jan. 31, 1967, (2010). Apr. 21, 2010, H , C RIENTATION AND Minister of Home , S L , URN (Ryan Thoreson O T AIL 5 ATCH ENEGAL M opened for signature S ORTURE W EAR FOR FRICA EXUAL AILY S , T A , F D AY IN , IGHTS OWHERE TO G R ATCH E N opened for signature URDER , AND POLITICS AHARAN ASED ON B W N ’ -S B now adopted by 147 states, now adopted by ”: M UMAN UB 12 H OMM S IGHTS R C AMEROON ERCEIVED TO C (2009); UMAN IGHTS P EOPLE IN XTERMINATED H R EN RAQ E S I M U BUSES IN UMAN INTERNATIONAL LAW LGBT P A H (2010); ANT EN AND 2006 (1) SA 424 (CC). Nepal has announced its intention to Nepal to Celebrate Becoming First Asian Nation to Recognise Gay Nepal to Celebrate Becoming First Asian Nation W ENDER IN IGHTS M G ESBIAN HEY AY : R DENTITY TATION AND AND L Fourie G . I , “T XTORTION OF The Refugee Convention, E 13. There are 147 state parties to either the Convention or the Protocol. 12. Refugees, Convention Relating to the Status of 11. of Africa, same-sex activity is “In 38 countries across the continent ATCH AY AND ENDER GAINST DENTITIES 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter Protocol]. 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter Office of the High Commissioner for Refugees, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, http:// www.unhcr.org/3b73b0d63.html (last visited Nov. 31, 2011). 28, 1951, 189 U.N.T.S. 139 [hereinafter Convention or Refugee Conven- 28, 1951, 189 U.N.T.S. 139 [hereinafter of the Convention is extended by tion]. The temporal and geographic reach Protocol Relating to the Status of Refugees, http://www.dailymail.co.uk/news/article-1267713/Nepal-celebrate-Asian- nation-recognise-gay-marriages-sex-unions-Mount-Everest.html. the reports of human rights organi- criminalized and one has only to look at and discrimination unleashed on zations to see evidence of the violence or gender identity.” LGBT people because of their sexual orientation & Sam Cook, eds. 2011). For country specific examples, see do the same. Everest Marriages with Same-Sex Unions on Mount G W I G A is the primary instrument governing refugee status under in- governing refugee status is the primary instrument ternational law.sets a binding and non- The Convention to recogni- of which persons are entitled amendable definition or substitute and thus to enjoy the surrogate tion as refugees, state.national protection of an asylum the article The core of marriages. countries in the world that recognizes same-sex Affairs v 318 less developed in seventy-four in place remain similar laws and many of them. enforced in and are regularly countries, \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 4 8-MAR-12 9:05 should therefore come as no surprise that members of sexual no surprise that come as should therefore as other state agents, both police and in flight from minorities cue taking their other private actors vigilante and well as from pro- sought the have increasingly homophobia, from legislated of sympathetic view that take a more Northern states tection of gay rights. of sexual minorities are Until and unless the rights Northern in most Southern countries, comparably ensured those at risk, to receive asylum claims from states can expect by Lord strike precisely the balance posited requiring them to Hope. 31420-nyi_44-2 Sheet No. 6 Side B 03/19/2012 11:22:47 B 03/19/2012 Sheet No. 6 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 7 Side A 03/19/2012 11:22:47 R . TS 319 299 . . R EV UM 97 (2003) . . L. R ]; Catherine 15 EV J. H L ED ’ note 12, arts. F NT L. R ]; Jenni Millbank, I , 31 supra 14 , 13 YDNEY S Czech Republic Uses ‘Gay Tests’ , 25 Burdened by Proof Before the High Court Burdened by Proof: How the Australian Refugee . Paul Canning, Before the High Court: Applicants S396/2002 and Before the High Court: Applicants S396/2002 Cf (Dec. 6, 2010, 3:13 PM), http://www.pinknews. and other protections of the Refugee protections and other EWS QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER N INK P , non-refoulement In most respects, the Refugee Convention has effectively In most respects, a only be a refugee if he apprehends A gay claimant will 14.their country of origin and be in The individual must also be outside 15. doctrine. Our article is focused on refugee law We note, however, (2003) [hereinafter Dauvergne & Millbank, (2003) [hereinafter Dauvergne & Millbank, Dauvergne & Jenni Millbank, S395/2002, a Gay Refugee Couple from Bangladesh From Discretion to Disbelief: Recent Trends in Refugee Determinations on the Basis of Sexual Orientation in Australia and the United Kingdom [hereinafter Dauvergne & Millbank, co.uk/2010/12/06/czech-republic-uses-gay-tests-on-asylum-seekers (describ- co.uk/2010/12/06/czech-republic-uses-gay-tests-on-asylum-seekers ing if asy- the Czech Republic’s use of “phallometric testing” to determine lum seekers are truly gay). of the evi- For a comprehensive analysis of some applicants, see Catherine dential obstacles faced by sexual minority Dauvergne & Jenni Millbank, Asylum Seekers Review Tribunal Has Failed Lesbian and Gay on Asylum Seekers need of and deserving of protection. Convention, 391 (2009). 1(A)(2), 1(D)–1(F).the definition have been largely These elements of orientation claims. non-contentious in the context of sexual have in establishing questions of the difficulties that a gay claimant might fact (for example, that they in fact are gay). the valid While we acknowledge of sexual orientation refugee claims concerns raised by states in the context sexuality; the potential for abuse), (for example, the difficulties in assessing parcel of the refugee law system. these are, at the end of the day, part and be addressed by recourse to rules Like every other case, these concerns must of evidence and procedure. accommodated claims based on sexual orientation. accommodated persecuted.” amounts to a risk of “being form of harm that voice “being persecuted,” The Convention’s use of the passive signals the need to demon- rather than simply “persecution,” 2012] a who has person is a a refugee that provides definition 1A(2) re- reasons of race, persecuted for fear of being “well-founded a par- membership of opinion, or political ligion, nationality, group.”ticular social and entitled is thus a refugee, A person to the per- applicant “being is a risk of the only if there Convention, harm is threatened a form of serious meaning that secuted,” a failure of state protection.which bespeaks Moreover, that to one of must be causally connected risk of being persecuted forms of civil or political status.the five enumerated It must a real chance in the sense that there is also be “well-founded” reason will, persecuted for a Convention that the risk of being the applicant is sent home. in fact, accrue if \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 5 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 7 Side A 03/19/2012 11:22:47 A 03/19/2012 Sheet No. 7 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 7 Side B 03/19/2012 11:22:47 [2004] 2 , [Vol. 44:315 (1991). This 112 ), [2010] UKSC 31, 104–05 (1991); Abay v. TATUS S TATUS HJ and HT S EFUGEE AND POLITICS the “use of the passive voice the “use R ), [2004] UKHL 26, [32] 16 , EFUGEE That is, because the Convention That is, AW OF Ullah R Kord the nature of the state response (if the nature of the L 17 HE 18 Minister for Immigration & Multicultural Affairs v Minister for Immigration & Multicultural Affairs T AW OF and , L ), [1999] UKHL 20, [1999] 2 A.C. 629, 643 (Lord ), [1999] UKHL 20, [1999] 2 A.C. 629, HE , T INTERNATIONAL LAW Shah ATHAWAY persecuted—consideration must be given to both C. H ATHAWAY being . [2]. [2002] 210 CLR 1, [70], [111]. ap- Although the United States AMES J Minister for Immigration & Multicultural & Indigenous Affairs v Kord Minister for Immigration & Multicultural Id Because the range of harms inflicted by reason of sexual of harms inflicted by reason Because the range C. H 18. 16. 17. AMES bifurcated approach was first endorsed by the Supreme Court of Canada in bifurcated approach was first endorsed 2 S.C.R. 689, 723–724.Canada (Att’y Gen.) v. Ward, [1993] It has since Kingdom’s House of Lords, and been formally embraced by the United of cases.since 2009, its Supreme Court in a series of State for Islam v. Sec’y the Home Dep’t ( [2011] 1 A.C. 596, 609 (Lord Hope) (appeal taken from Eng. & Wales C.A.). [2011] 1 A.C. 596, 609 (Lord Hope) (appeal in Australia, this approach was also Although not yet uniformly embraced implicitly by Chief Justice Gleeson of endorsed expressly by Justice Kirby and the Australian High Court in Khawar persecuted” is not grounded in any proach to the interpretation of “being the U.S. Court of Appeals for the particular framework, in a 2007 decision feared by a claimant violates Sixth Circuit stated: “Whether the treatment recognized standards of basic human rights can determine whether persecu- tion exists.” Stenaj v. Gonzalez, 227 F. App’x 429, 433 (6th Cir. 2007) (citing Steyn) (appeal taken from Eng. & Wales C.A.); Horvath v. Sec’y of State for Steyn) (appeal taken from Eng. & Wales 1 A.C. 489, 495 (Lord Hope of the Home Dep’t, [2000] UKHL 37, [2001] from Eng. & Wales C.A.); Sepet Craighead), 512 (Lord Clyde) (appeal taken UKHL 15, [7], [2003] 1 W.L.R. v. Sec’y of State for the Home Dep’t, [2003] 856, 862–63 taken from Eng. & Wales (Lord Bingham of Cornhill) (appeal C.A.); R. v. Special Adjudicator ( A.C. 323, 355 (Lord Steyn) (appeal taken from Eng. & Wales C.A.); HJ A.C. 323, 355 (Lord Steyn) (appeal taken ( (Iran) v. Sec’y of State for the Home Dep’t Ashcroft, 368 F.3d 634, 638–39 (6th Cir. 2004)). (2002) 125 FCR 68 (Austl.). J orientation is far too often at the most brutal end of the too often at the most brutal orientation is far 320 depend- not be or will cannot of risk that a predicament strate own country. by the applicant’s ably rectified As the Austra- in Court held lian Federal \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 6 8-MAR-12 9:05 is concerned with protection against a condition or predica- protection against a condition is concerned with ment— conveys a compound notion, concerned both with the con- both with the concerned a compound notion, conveys the conduct has on the effect that persecutor and duct of the persecuted.” person being any), since it is the combination of the two that gives rise to the combination of the two that any), since it is of “being persecuted.”the predicament As senior courts have or sys- necessary to show the “sustained agreed, it is therefore of a fail- basic human rights demonstrative temic violation of ure of state protection.” the nature of the risk the nature of the 31420-nyi_44-2 Sheet No. 7 Side B 03/19/2012 11:22:47 B 03/19/2012 Sheet No. 7 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 8 Side A 03/19/2012 11:22:47 R , 22 19 INK 321 AME- P , C URDER [Police As- ”: M 16 (2010). BUSES IN Feb. 13, 2011), A ( “social cleans- “social —it been has not 24 IGHTS 2 (2009). 26 DENTITY XTERMINATED I : R OMERCIO E RAQ S I C L U E ENDER G ANT DENTITIES public lashing and stoning, public lashing I ENDER IN W 21 G HEY (Mar. 12, 2009), http://www.guardian.co. T , “ as sufficiently serious to satisfy the “se- serious to as sufficiently note 5, at 45. RIENTATION AND 27 RIMINALIZING ATCH UARDIAN The Incorporation of International Human Rights Stan- The Incorporation of International Human O , Sept. 21, 2010, at 22. , C Russian Gay Rights Activist ‘Kidnapped by Police at Air- Russian Gay Rights Activist ‘Kidnapped by QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Iranian Men to Be Stoned to Death over Gay Sex Iranian Men to Be Stoned to Death over W G supra . 255 (1995). Raped and Killed for Being a Lesbian: South Africa Ignores Raped and Killed for Being a Lesbian: South , RIENTATION AND HE T ATCH EXUAL O IGHTS , L.J police beatings, S W 20 R ALE Y TTOSSON ´ EXUAL ıas agredieron a gays que se besaban en el Centro de Lima ıas agredieron a gays que se besaban en el Centro NDEPENDENT O IGHTS I ROON UMAN , S involuntary medical intervention, medical involuntary and even state-sanctioned execution state-sanctioned and even ASED ON R Polic H HE , 105 23 25 B T (Jan. 18, 2011), http://www.pinknews.co.uk/2011/01/18/iranian- Two men with SWAT [Special Weapons and Tactics] team [Special Weapons and Tactics] Two men with SWAT my house. . . . I asked why they were arresting uniforms barged into me I was there for homosexuality and pushed me. . . . [T]hey said into a cell. men. I shared the cell with four other Police told me faggots. they were also there because they were ’ , 20. Shaun Walker, 22. Paul Canning, 26. Yemen, plus some parts of Iran, Mauritania, Saudi Arabia, Sudan, 24. Ryan Goodman, 21. 25. 27. is difficult and the subject of We acknowledge that terminology here 23. Annie Kelly, 19. arrest and Report quotes a victim of arbitrary A Human Rights Watch UMAN EWS ORTURE port http://elcomercio.pe/lima/713170/noticia-policias-agredieron-gays-que-se- besaban-centro-lima. Somalia and Nigeria, presently maintain the death penalty for homosexual Somalia and Nigeria, presently maintain conduct. T uk/world/2009/mar/12/eudy-simelane-corrective-rape-south-africa. dards into Sexual Orientation Asylum Claims: Cases of Involuntary ‘Medical’ Inter- dards into Sexual Orientation Asylum Claims: vention sault Gays Kissing in the Center of Lima], sault Gays Kissing in the Center of Lima], personal preference. We have generally used the terms “sexual minority” or “gay” as convenient shorthand to refer to gay, lesbian, bisexual, transgender, and intersex persons. Pronouns are phrased in the masculine voice in rec- ognition of the fact that the claimants in the two key cases considered in this paper are male. men-to-be-stoned-to-death-over-gay-sex. ‘Corrective’ Attacks imprisonment in Cameroon thus: imprisonment in Cameroon N H 2012] spectrum—arbitrary rights human and imprisonment, arrest kidnapping, rape, \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 7 8-MAR-12 9:05 rious harm” limb of the “being persecuted” inquiry. “being persecuted” limb of the rious harm” Less vio- common responses to homosexuality—forlent and even more medical treat- of the right to work, education, example, denial housing—havement, or public recog- also been appropriately ing,” difficult for courts to see the prospective harms facing many harms facing the prospective for courts to see difficult claimants gay refugee 31420-nyi_44-2 Sheet No. 8 Side A 03/19/2012 11:22:47 A 03/19/2012 Sheet No. 8 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 8 Side B 03/19/2012 11:22:47 R R 219 , AW AND MMM v L available at [Vol. 44:315 (2007). It with a num- starve.” 30 EFUGEE R 156–235 at worst Where sexual minori- (1998) 90 FCR 324, 326–27 Paredes v. U.S. Att’y Gen. 31 EPRIVATION See AND POLITICS NTERNATIONAL I (May 27, 2010), http://www.econo- D , see also Gay Rights in Developing Coun- in line with the more general the more line with in 28 OSTER F CONOMIST E EFUGE FROM HE : R note 5, at 45; T ICHELLE , M IGHTS INTERNATIONAL LAW supra , R note 18. Kadri v. Mukasey, 543 F.3d 16, 21–22 (1st that Cir. 2008) (finding TTOSSON See generally CONOMIC 29 See supra O See -E Nor has it been a challenge to satisfy the second half of to satisfy the it been a challenge Nor has 29. 31. Bill, introduced into For example, see Uganda’s Anti-Homosexuality 30. 28. OCIO F. App’x 879, 887 (11th Cir. 2007) (finding that the situation of HIV-in- F. App’x 879, 887 (11th Cir. 2007) (finding treatment in their home coun- fected homosexual men left without medical level of persecution necessary for try was “regrettable” but did not rise to the the grant of asylum). familial re- Similarly, an Australian Court found that even where that could lead to jection could not amount to being persecuted, “might “utter penury,” noting that the applicant must be noted that despite substantial advances in international refugee ju- must be noted that despite substantial advances persecution, some deci- risprudence in the recognition of socio-economic violations of these rights as a sion makers have been reluctant to recognize form of harm in sexual orientation cases. Minister for Immigration & Multicultural Affairs Minister for Immigration & Multicultural (Austl.) (emphasis added). mist.com/node/16219402 (describing the discrimination gays face in devel- mist.com/node/16219402 (describing the oping countries). amongst other things, to intro- parliament on October 13, 2009, proposing, previous convictions, who are HIV- duce the death penalty for people with positive, or who engage in same sex acts with people under 18 years of age. The Anti-Homosexuality Bill, 2009, Bill [18] cl. 3 (Uganda), http://www.publiceye.org/publications/globalizing-the-culture-wars/pdf/ uganda-bill-september-09.pdf. a gay applicant might be eligible for refugee status on the basis that he a gay applicant might be eligible for doctor if he returned to Indo- would be unable to earn a living as a medical nesia). tries: A Well-Locked Closet S 322 harms as persecutory nized ei- a showing inquiry, which requires persecuted” the “being alternatively is itself the agent of harm, or ther that the state threats ema- unwilling effectively to counter that it is unable or agents.nating from non-state forty percent of the Some criminalize homosexual acts, world’s nations still \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 8 8-MAR-12 9:05 evolution of refugee law to predicate such a finding on the a finding on to predicate such of refugee law evolution recognized human internationally of a risk to core, existence rights. ber of regimes still striving to make their laws and enforce- still striving to make their laws ber of regimes more repressive. ment regimes even ties are threatened by non-state actors, gay applicants have by non-state actors, gay applicants ties are threatened of a mean- the recognition that the absence benefitted from 31420-nyi_44-2 Sheet No. 8 Side B 03/19/2012 11:22:47 B 03/19/2012 Sheet No. 8 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 9 Side A 03/19/2012 11:22:47 323 for rea- http:// available at , which drew on . The reference was Id Ward ” as the paradigmatic exam- ” as the paradigmatic At least since the landmark deci- At least since the 33 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER 32 and sexual orientation race, religion, nationality, membership of a particular membership nationality, race, religion, The Refugee Convention’s nexus criterion—that Convention’s The Refugee is, the agents, the word “persecution” implies a failure by the state to implies a failure by the agents, the word “persecution” against the ill-treatment or violence make protection available at the hands of the persecutors.which the person suffers In a case agents is of persecution by the state or its own where the allegation the problem does not, of course, arise. the This is a clear case for community.surrogate protection by the international the But in agents, the failure case of an allegation of persecution by non-state an essential element.to provide the protection is nevertheless It by the state and persecu- provides the bridge between persecution in the interest of the tion by non-state agents which is necessary consistency of the whole scheme. 32. an allegation of persecution by non-state [I]n the context of 33. was recently slated for con- We note, however, that this very question subsequently withdrawn after the applicant was granted refugee status. Horvath v. Sec’y of State for the Home Dep’t, [2000] UKHL 37, [2001] 1 Horvath v. Sec’y of State for the Home from Eng. & Wales C.A.). A.C. 489, 497 (Lord Hope) (appeal taken after the German Administra- sideration by the European Court of Justice, “homosexuality is to be con- tive Court considered the question of whether meaning of the second sentence of sidered a sexual orientation within the of 29 April 2004 on Min- Article 10(1)(d) of [Council Directive 2004/83/EC Status of Third Country Nationals imum Standards for the Qualification and Who Otherwise Need Interna- or Stateless Persons as Refugees or as Persons Protection Granted, 2004 O.J. (L tional Protection and the Content of the Directive], 304) 13 (EU) [hereinafter EU Qualification www.unhcr.org/refworld/docid/4157e75e4.html].” for a Prelim- Reference fuer das Land Nordrhein- inary Ruling from the Oberverwaltungsgericht Westfalen Lodged on 1 December 2010–Kashayar Khavand v Ger., 2011 O.J. (C38) 7. Court raised If answered in the affirmative, the Administrative extent is homosexual activity pro- three additional questions: “(a) To what be told to live with his or her sexual tected?; (b) Can a homosexual person in secret and not allow it to become orientation in his or her home country for the protection of public known to others?; (c) Are specific prohibitions order and morals relevant when interpreting and applying Article 10(1)(d) of [the EU Qualification Directive] or should homosexual activity be pro- tected in the same way as for heterosexual people?” 2012] required what is threat is to the non-state state response ingful asylum. to justify must be “ of being persecuted that the risk requirement sons of opinion”—is or political social group rarely a bar to the also claims. recognition of gay \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 9 8-MAR-12 9:05 sion of the Supreme Court of Canada in sion of the Supreme non-discrimination norms to recognize “gender, linguistic norms to recognize “gender, non-discrimination background 31420-nyi_44-2 Sheet No. 9 Side A 03/19/2012 11:22:47 A 03/19/2012 Sheet No. 9 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 9 Side B 03/19/2012 11:22:47 R R , supra ATHAWAY H [Vol. 44:315 And in line And in 35 see also ) [1998] INLR 387 (N.Z.) ), [1999] UKHL 20, [1999] Re GJ ( Shah : AND POLITICS the members of sexual mi- of sexual members the to find “the issue of sexual orienta- 34 Shah 1312/93 Ward . , [1999] UKHL 20, 2 A.C. at 644–45 (Lord ’s finding that homosexuals formed a “particu- 36 Shah http://www.unhcr.org/refworld/pdfid/4b0e98fc2. “as precedent in all proceedings involving the same “as precedent in all proceedings involving Shah INTERNATIONAL LAW Refugee Appeal No Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (B.I.A. 1990) (re- Toboso-Alfonso, 20 I. & N. Dec. 819, 822 available at Toboso-Alfonso . Zhou v. Ashcroft, 85 F. App’x 566, 568 (9th Cir. 2003) (stating See In re Cf Despite these positive developments, refugee protection Despite these positive note 18, at 136. In 1951 the draftsmen of article 1A(2) of the Convention explicitly In 1951 the draftsmen known, forms of discrimination then listed the most apparent political covered by race, religion, and namely the large groups if the draftsmen had over- opinion. It would have been remarkable looked other forms of discrimination. After all, in 1948 the Univer- on the grounds of sal Declaration had condemned discrimination colour and sex. pro- Accordingly, the draftsmen of the Convention group would be a fur- vided that membership of a particular social ther category. 35. 34. ad- v. Ward, [1993] 2 S.C.R. 689, 739 (emphasis Canada (Att’y Gen.) 36. supra pdf (S. Afr.) (accepting EU Qualification Directive, lar social group” under the Convention); “sexual orientation” as a basis for note 33, art. 10(1)(d) (directly mentioning ded). This approach was approved in ( Islam v. Sec’y of State for the Home Dep’t tion presents little difficulty” in qualifying as a “particular social group” tion presents little difficulty” in qualifying under the Convention); 2 A.C. 629, 643 (appeal taken from Eng. & Wales C.A.); 2 A.C. 629, 643 (appeal taken from Eng. (applying the norms approach in homosexual individuals as a para- Steyn), 663 (Lord Millett) (U.K.) (using the Convention for purposes of digmatic class of protected individuals under of 13 May 2002 (Refugee Appeal comparison to other classes); Decision Board 2002), forming a “particular social group”). General In 1994, the U.S. Attorney designated issue or issues.” Att’y Gen. Order No. 1895-94 (June 19, 1994). that the asylum statute covers persecution where the “protected ground” constitutes one of the motives for the persecution in question). has often been denied to gay applicants over the past decade, to gay applicants over the has often been denied 324 groups, social of particular ples \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 10 8-MAR-12 9:05 jecting as unpersuasive the Immigration and Naturalization Service’s argu- jecting as unpersuasive the Immigration was not part of a “particular social ment that the homosexual asylum seeker group” in Cuba); norities have had little difficulty bringing themselves within difficulty bringing have had little norities class. beneficiary of the Convention’s the scope with the understanding that the Convention ground need not ground need that the Convention understanding with the being of the risk of dominant, cause or even the be the sole, nexus requirement will satisfy the a gay applicant persecuted, in the identity is a contributing element so long as their sexual risk. production of the 31420-nyi_44-2 Sheet No. 9 Side B 03/19/2012 11:22:47 B 03/19/2012 Sheet No. 9 Side 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 10 Side A 03/19/2012 11:22:47 R R 40 325 LEE- Her- , F , [1995] on the on 37 overruled on other RIENTATION AND PIJKERBOER S XMU (Re) text accompanying O note 15. HOMAS EXUAL See infra S &T supra to conceal one’s sexual to conceal one’s , ANSEN duty J ELATED TO ) (2005) 216 ALR 1, [138] (Kirby J) R ABINE S LAIMS , 399 F.3d 1163, 1170 (9th Cir. 2005) and , 399 F.3d 1163, 1170 (9th Cir. 2005) and 33–39 (2011). C Before the High Court QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER [1998] INLR 387. In each of these cases the court UROPE Gonzales ., 225 F.3d 1084, 1099 (9th Cir. 2000), . SYLUM S . E Applicant NABD ( N : A . Re GJ I . asylum cases there is ultimately but a single question to asylum cases there is ultimately but a single all Karouni v Thomas v. Gonzales, 409 F.3d 1177, 1187 (9th Cir. 2005); and in Thomas v. Gonzales, 409 F.3d 1177, 1187 The tragedy is that courts advanced this obligation of courts advanced this obligation The tragedy is that DENTITY IN ING against gay applicants even as they vigorously (and ap- even as they vigorously (and against gay applicants I 38 Applicant NABD of 2002 v Minister for Immigration & Multicultural & Applicant NABD of 2002 v Minister for Immigration 39 OMOPHOBIA be asked: is there a serious risk that on return the applicant would be asked: is there a serious risk that on be persecuted for a Convention reason?enti- If there is, then he is tled to asylum. not whether the risk arises from his own It matters conduct in this country, however unreasonable . . . . It is one thing to say . . . that may well be reasonable to require asylum seekers to refrain from certain political or even religious activities to avoid persecution on return. It is quite another thing to say that, if in be concealed or repressed, it has been asserted by some repressed, it has been asserted be concealed or H 38. jurisprudence is provided in An overview of this foundational 39. 37. Canada in Compare to the approach adopted in 40. [I]n ENDER can grounds by New Zealand in Dauvergne & Millbank, disavowed any attempt to impose a “duty of discretion,” but did not go on to disavowed any attempt to impose a “duty an applicant who would in fact consider the additional question of whether refugee status.be “discreet” could qualify for Convention was the criti- This here. cal issue in the cases under consideration nandez-Montiel v note 59. suggests A recent report prepared by S. Jansen and T. Spijkerboer Indigenous Affairs (Austl.). C.R.D.D. 146, No. T94-06899 (Immigration and Refugee Board of Can.); in C.R.D.D. 146, No. T94-06899 (Immigration the U.S. in that “discretion reasoning,” in various guises, still occurs in a number of civil that “discretion reasoning,” in various guises, Bulgaria, Cyprus, Denmark, Fin- jurisdictions, including Austria, Belgium, the Netherlands, Poland, Romania, land, France, Germany, Hungary, Malta, Spain, Norway, and Switzerland. G 2012] Kingdom, the United and in Australia particularly \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 11 8-MAR-12 9:05 propriately) rejected any comparable duty to disguise one’s any comparable duty to disguise propriately) rejected to be safe. or religious convictions in order political opinions behavior modification, in effect “postulating self-censor- in effect “postulating behavior modification, ship,” grounds that the “well-founded fear” criterion of the refugee fear” criterion that the “well-founded grounds can a sexual minority a member of is not met where definition otherwise “tolerate” be discreet” or be expected “to reasonably risk to avoid the repression in order of internalized a measure their home state. persecuted in of being mi- Because sexual nority status—like political opinion grounds of the protected nationality)— to a lesser extent, race and and religion (and, is therefore a courts that there orientation in order to avert the prospect of being perse- to avert the prospect of orientation in order cuted. 31420-nyi_44-2 Sheet No. 10 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 10 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 10 Side B 03/19/2012 11:22:47 R see also 43 ), [2010] [Vol. 44:315 42 note 15, at 122. HJ and HT supra , AND POLITICS the High Court of Australia : 44 , 41 Before the High Court imposition of a “duty to be discreet” imposition of a “duty to be INTERNATIONAL LAW sui generis Appellant S395/2002 and S396/2002 v Minister of Immi- Appellant S395/2002 and S396/2002 . Id Appellant S395/2002 v Minister for Immigration & Multicultural Affairs ) (2003) 216 CLR 473 (Austl.). This The very notion of a duty to be “discreet” about one’s pro- one’s about be “discreet” duty to of a very notion The I would prefer not to use the word “discretion,” as the word “discretion,” prefer not to use I would the whole does not tell expression this euphemistic ori- which reveals one’s sexual truth . . . . Behaviour from one is gay or straight, varies entation, whether individual to individual. a wide spectrum, It occupies no are naturally reticent and have from people who to establish a sexual relationship particular desire those who wish, for various reasons, with anybody to their sexual identity. to proclaim in public fact it appears that the asylum seeker on return would not refrain fact it appears that the asylum seeker on from such activities—if, in other words, it is established that he would in fact act unreasonably—he is not entitled to refugee status. 41. Dep’t ( HJ (Iran) v Sec’y of State for the Home 42. 43. Dauvergne & Millbank, 44. S395 Sec’y of State for the Home Dep’t v. Ahmed, [1999] EWCA (Civ) 3003, Sec’y of State for the Home Dep’t v. & Immigr. Trib.) (U.K.); [2000] INLR 1 (appeal taken from Asylum EWCA (Civ) 711, [15], [2005] Hysi v. Sec’y State for the Home Dep’t, [2005] Trib.) (U.K.) (“To compel an INLR 602 (appeal taken from Immigr. Appeal with a fundamental right.individual to disown his origins interferes If the declare your race would lead others consequence of exercising the right to consequence would be discrimina- to subject you to severe ill-treatment, the tion on the grounds of race, and persecution.”). UKSC 31, [22], [2011] 1 A.C. 596, 625 (appeal taken from Eng. & Wales UKSC 31, [22], [2011] 1 A.C. 596, 625 C.A.). We have adopted the latter language throughout this article. ( Indeed, the assumption that it is in fact possible for every gay that it is in fact possible Indeed, the assumption applicant to be discreet—that univer- there is, in effect, some sal on/off switch—is empirically unsound. As Dauvergne and ‘out’ is never “[t]he question of being Millbank have observed, decision made over and over, answered once and for all, it is a situation . . . . [T]he state of each day and in each new social permeable one.” ‘closeted-ness’ [is] always a potentially expressly rejected on two against gay applicants has now been courts.separate occasions by ultimate appellate the deci- In sion of gration & Multicultural Affairs 326 problematic. inherently is, moreover, tected identity As Lord of an to speak it is more accurate observed, Hope pointedly of “concealment” expectation \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 12 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 10 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 10 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 11 Side A 03/19/2012 11:22:47 R R , 48 327 Lesbian Dauvergne & 45 715 (2003); Millbank L. See generally EFUGEE J. R L note 15; Christopher N. Kendall, ’ NT In the Court’s view, the capacity of In the Court’s view, supra (2003) 216 CLR at 492 (McHugh & Kirby JJ). 46 15 I , S395 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Justices Kirby and McHugh found that “persecution Justices Kirby and Before the High Court 47 . at 491–92 . . at 489. . (Gummow & Hayne JJ). at 500 Id Id Id note 15. Saying that an applicant for protection would live Saying that an applicant for protection may be an “discreetly” in the country of nationality in which that person accurate description of the way life.would go about his or her daily a To say that person will live dis- decision-maker “expects” that that read as a statement creetly may also be accurate if it is of what is thought likely to happen. But to say that to live dis- an applicant for protection is “expected” to the task to be creetly is both wrong and irrelevant it is no answer to a claim for protection as a refugee for protection to a claim it is no answer conse- that those adverse an applicant to say to were to if the applicant could be avoided quences in ques- she holds the beliefs fact that he or hide the tion. he or she should And to say to an applicant that gen- such matters is simply to use be “discreet” about the same meaning. tler terms to convey 47. 48. 46. and the Federal Court contain “In so far as decisions in the Tribunal 45. supra statements that asylum seekers are required, or can be expected, to take rea- statements that asylum seekers are required, sonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.” and Gay Refugees in Australia: Now that ‘Acting Discreetly’ Is no Longer an Option, and Gay Refugees in Australia: Now that ‘Acting Will Equality Be Forthcoming? The High Court determined that no duty could be imposed determined that no duty could The High Court to avoid the to modify his conduct in order on a gay applicant risk of being persecuted. by Justices Gummow and The point was also forcefully put Hayne: 2012] and other of gay the treatment between the dissonance noted that claimants, and determined refugee \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 13 8-MAR-12 9:05 Millbank, does not cease to be persecution for the purpose of the Con- be persecution for the purpose does not cease to the harm by those persecuted can eliminate vention because country of nationality.” taking avoiding action within the an individual to avoid persecutory harm is irrelevant to avoid persecutory harm is an individual to of being per- applicant faces a real chance whether or not the secuted. 31420-nyi_44-2 Sheet No. 11 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 11 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 11 Side B 03/19/2012 11:22:47 ), [2010] [Vol. 44:315 The Supreme HJ and HT 52 50 49 do. HJ (Iran) v. Secretary of State HJ (Iran) AND POLITICS must that “what is protected is the appli- that “what is protected 51 INTERNATIONAL LAW . at 501. . [78], [2011] 1 A.C. at 646 (Lord Rodger of Earlsferry). Id Id undertaken by the Tribunal if it is indeed as a state- as if it is indeed by the Tribunal undertaken what the applicant ment of Kingdom’s Su- the United on this precedent, Drawing The underlying rationale of the Convention is . . . rationale of the Convention is The underlying fear- be able to live freely, without that people should suffer harm of the requisite inten- ing that they may say, black, or the sity or duration because they are, or gay.descendants of some former dictator, In the contrary, the impli- absence of any indication to the to live openly in this cation is that they must be free way without fear of persecution.to By allowing them the receiving state live openly and free from that fear, a surrogate for the affords them protection which is reasons of religion or political opinion if it was a condition of pro- reasons of religion or political opinion take steps—reasonabletection that the person affected must or otherwise—tooffending the wishes of the persecutors. avoid Nor of many a “particular social would it give protection to membership that its members hide group” if it were a condition of protection or characteristic of the their membership or modify some attribute group to avoid persecution. give Similarly, it would often fail to for reasons of race or na- protection to people who are persecuted that they should take tionality if it was a condition of protection . . . . It would undermine steps to conceal their race or nationality countries required the object of the Convention if the signatory or to hide their race, na- them to modify their beliefs or opinions social groups before those tionality or membership of particular the Convention. countries would give them protection under 49. 50. from persecution for The Convention would give no protection 51. HJ (Iran) v Sec’y of State for the Home Dep’t ( 52. . [40]–[41] (McHugh & Kirby JJ). Id UKSC 31, [2011] 1 A.C. 596, (appeal taken from Eng. & Wales C.A.). for the Home Department 328 un- would any other interpretation determined that The Court of the Convention. the very object dermine recently in held more preme Court \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 14 8-MAR-12 9:05 cant’s right to live freely and openly as a gay man. . . . [G]ay freely and openly as a gay man. cant’s right to live in the society free as their straight equivalents men are to be as to them their lives in the way that is natural concerned to live the fear of persecution.” as gay men, without Court stressed that no duty can be imposed on an applicant to no duty can be imposed on an Court stressed that being perse- in order to avoid a risk of modify his behavior cuted: 31420-nyi_44-2 Sheet No. 11 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 11 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 12 Side A 03/19/2012 11:22:47 329 . For : HJ and HT . [59], [2011] 1 A.C. 54 S395 and Id S395 . [18], [2011] 1 A.C. at 638 : the top courts in Australia the top courts 55 see also id By so doing, they have reinforced By so doing, they . [123], [2011] 1 A.C. at 630. As such, the 56 Id ) (2005) 216 ALR 1, [106] (Austl.). Applicant NABD QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER 53 Applicant NABD ( . [53], [2011] 1 A.C. at 637–38 (Lord Rodger). . [54], [2011] 1 A.C. at 638; Id Id protection which their home state should have af- should state home their which protection forded them. as has been justifiably regarded Each of these decisions Having accepted that a “quiet” (equivalent to “discreet”) practice of Having accepted that a “quiet” (equivalent in Iran, the second Tribu- religious beliefs was imperative for safety of ‘quiet sharing of one’s nal effectively imposed the requirement to Iran.faith’ on the appellant, were he to be returned Its predic- dependent upon its assess- tion of what he would do was necessarily him to do in Iran. ment of what alone it would be safe for case where a gay applicant is, absent concealment, at risk of physical case where a gay applicant is, absent 56. The dissonance of the earlier position with cases involving other Con- 55. Kingdom Supreme Court We have some concerns that the United 54. 53. vention grounds was noted repeatedly in both example, see the decision of Gummow & Hayne JJ in Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indige- Applicant NABD of 2002 v Minister for Immigration nous Affairs harm in his home country.Kirby warned This is precisely what Justice against in his decision in Court appears to have determined that self-repression will be assumed in Court appears to have determined that every at 639.to a general As elaborated by Sir John Dyson, this position amounts life of discretion in preference to rule: “Most asylum-seekers will opt for the persecution. in effect, This is no real choice. If they are returned, they will, be required to act discreetly.” (Lord Hope) (“[T]he fact that [the refugee] could take action to avoid per- (Lord Hope) (“[T]he fact that [the refugee] if in fact he will not act in such secution does not disentitle him from asylum a way as to avoid it.”). duty to conceal sexual identity it had allowed through the back door the very door.so firmly refused to allow through the front the On one interpretation facto” duty of discretion by finding Court appears to have legitimized a “de the applicant would have that “when faced with a real threat of persecution, discreetly.” no choice: he would be compelled to act 2012] of to the protection is entitled view, a claimant In the Court’s avoid that “he could of the fact irrespective the Convention by his behavior (say, by modifying any actual harm suffering home return to his on his himself ‘discreetly’) conducting not in fact choose to do so.” state but would cause for celebration. rejecting the proposition By explicitly on the claim of a gay applicant can be denied that the refugee of iden- to avoid risk through concealment grounds of failure modification, tity or behavioral \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 15 8-MAR-12 9:05 and the United Kingdom have moved firmly to align access to Kingdom have moved firmly to align and the United applicable sexual minorities with the norms refugee status for groups. to other claimant 31420-nyi_44-2 Sheet No. 12 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 12 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 12 Side B 03/19/2012 11:22:47 R [Vol. 44:315 . (Kirby & at 487 would not be see also id .Based on the facts . We return to this at note 96 HJ and HT AND POLITICS . (Gleeson CJ) (“When that at 481 and id obiter dicta HJ and HT S395 58 (2003) 216 CLR at 481; to benefit from the international “back- from the international to benefit In recognizing refugee status even where In recognizing refugee 57 60 S395 INTERNATIONAL LAW , the Secretary of State from the outset accepted that no to modify his conduct to avoid the risk of being to modify his conduct , the Court adopted the Minister’s submission that the Tribu- , the Court adopted the Minister’s submission opt ) (2003) 216 CLR 473, 500 (Austl.). the applicants in the applicants in S395 HJ and HT 59 S395 ( In truth, however, the courts’ rejection of the gay-specific In truth, however, If an applicant holds political or religious beliefs that are not political or religious beliefs that If an applicant holds chance of adverse conse- favoured in the country of nationality, the to that country would quences befalling that applicant on return were to draw atten- ordinarily increase if, on return, the applicant tion to the holding of the relevant belief.to a But it is no answer to an applicant that those claim for protection as a refugee to say if the applicant were to adverse consequences could be avoided in question. hide the fact that he or she holds the beliefs . 57. Dep’t, [2000] UKHL 37, Horvath v. Sec’y of State for the Home 58. 2 S.C.R. 689, 709. Canada (Att’y Gen.) v. Ward, [1993] 59. findings made by the There may be reasons to doubt the factual 60. In . (Gummow & Hayne JJ) (“The better view is that that sentence at 502 “out” in their home state, and therefore the question of impos- state, and therefore the question “out” in their home did not arise.ing a duty of concealment Both cases actually a gay appli- more common scenario in which involved the far cant would [2001] 1 A.C. 489, 495 (appeal taken from Eng. & Wales C.A.). [2001] 1 A.C. 489, 495 (appeal taken from lower-level tribunals in the case of Appellant S395/2002 v Minister for Immigration & Multicultural & Indigenous Appellant S395/2002 v Minister for Immigration Affairs claim advanced by the appellants, passage is considered in the context of the of the evidence, and the reasons their evidence, the Tribunal’s evaluation given for rejecting that evidence, it is clear that the Tribunal was neither counselling nor requiring discretion on the part of the appellants.”). Simi- larly, in positive duty could be imposed on the applicants. HJ (Iran) v. Sec’y of State persecuted because to do so would be eminently rational in to do so would be eminently persecuted because the circumstances. infra but rather found that the applicants nal imposed no duty on the claimants, they had done in the past, because would live discreetly in the future, as would not continue to do so if they “there is no reason to suppose that they returned home now.” of the Minister are correct”); McHugh JJ) (“In our view, these contentions id what the appellants were likely to records the Tribunal’s conclusion about do if they did return to Bangladesh”); 330 person the to “enable Convention of the Refugee the capacity against persecu- benefit of protection longer has the who no to the interna- to turn for protection home country tion in his tional community,” was “duty to be discreet” \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 16 8-MAR-12 9:05 up to the protection one expects from the State of which an the State of which expects from protection one up to the is a national.” individual found, 31420-nyi_44-2 Sheet No. 12 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 12 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 13 Side A 03/19/2012 11:22:47 331 see also 61 , [2010] UKSC 31, [2011] 1 A.C. behave upon return and whether on that ), [2010] UKSC 31, [54], [2011] 1 A.C. 596, ), [2010] UKSC 31, [54], [2011] 1 A.C. : HJ and HT will QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER . [18], [2011] 1 A.C. at 623–24 (Lord Hope); HJ and HT id HJ and HT , [2010] UKSC 31, [109], [2011] 1 A.C. at 656. HJ and HT Both the High Court of Australia and Supreme Court of Both the High Court of Australia The determination that none of the applicants would face none of the applicants that The determination How can a gay man, who would have a well-founded How can a gay man, gay if he were to live openly as a fear of persecution said to have a well- man on return to his country, be return he would in founded fear of persecution if on escaping the at- fact live discreetly, thereby probably him if they were tention of those who might harm . . . [I]t might be aware of his sexual orientation? the conclusion that, thought that this should lead to on return and if a gay man would live discreetly persecuted on ac- thereby avoid being harmed or he could not have a count of his sexual orientation, within the meaning well-founded fear of persecution of article 1(A)(2) of the Convention. 61. for the Home Dep’t ( that applicants may not be refused 596 (on file with authors) (“It is accepted ‘should’ or ‘are expected to’ or ‘are asylum on the basis that they ‘could’ or required to’ behave discreetly in order to avoid persecution. The issue is always to determine how they the United Kingdom rightly took umbrage at the unsavory im- the United Kingdom rightly took a duty to grant refugee plications of this analysis: effectively, even as it was denied to a status to the openly gay claimant applicant.comparably situated but more cautious But in their 638 (Lord Rodger); Case for the Respondent, [4], 2012] and Brit- the Australian by concealment, averted would be risk law accepted refugee ways from departed in critical ish courts doctrine. abuse—becauserisk of physical the real understandably they con- and avoiding sexual identity that disguising their decided course of ac- their sexuality was the safest duct associated with tion—raises Conven- challenge to satisfaction of the a crucial fear” requirement.tion’s “well-founded Only persons able to can establish risk of persecutory harm show a forward-looking fear,” and hence qualify as refugees.a “well-founded But if accrue, how that the risk would, in fact, never prudence means persecuted be said to be “well-founded” can the fear of being in objective terms? was pointed out by Sir This conundrum John Dyson in \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 17 8-MAR-12 9:05 basis there is a real risk of persecution.”). 31420-nyi_44-2 Sheet No. 13 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 13 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 13 Side B 03/19/2012 11:22:47 62 and would S395 [Vol. 44:315 S395 or the arbitrary —were precisely 64 65 , [2001] FCA 132, [20] , to rid this it is necessary AND POLITICS Appellant S395 face by virtue of their entirely under- virtue of their entirely face by ) (2005) 216 ALR 1, [143] (Austl.). Justice Kirby in fact INTERNATIONAL LAW , [2010] UKSC 31, [37], [2011] 1 A.C. at 631 (Lord Hope) preference for concealment over persecution. for concealment preference would Applicant NABD (2003) 216 CLR at 493 (McHugh & Kirby JJ). 63 ( . [132] (citing Sabaratnam v. Can. (Minister of Emp’t & Immigra- . [132] (citing Sabaratnam v. Can. (Minister Id S395 HJ and HT Specifically, the forms of harm on which the courts fo- forms of harm on which the courts Specifically, the fails to show that he or she is a leading exponent of a claim to, or fails to show that he or she is a leading that he or she exhibits a the wish to, exercise such rights, let alone capacity for martyrdom. of The Convention aims at the protection the timorous as well as the those whose human dignity is imperiled, the followers as well bold, the inarticulate as well as the outspoken, causes, in a word, the as the leaders in religious, political or social one. ordinary person as well as the extraordinary area of decisional discourse of the supposed dichotomy between area of decisional discourse of the supposed be able to avoid or dimin- applicants for protection visas who might themselves ‘discreetly’ in ish the risks of persecution by conducting and those who assert denial of their fundamental human rights or even accidentally mani- those rights or who might deliberately have done so.fest them, or be thought or alleged to most The that this untextual, irrele- effective way that this Court can ensure from refugee decisions vant and undesirable dichotomy is deleted it surfaces, the outcome in Australia is by the insistence that, where reconsideration, freedom is set aside and the matter remitted for from error. 63. that the claimant It is not fatal to such a claim of persecution 64. 65. 62. in Following the decision tion), 1992 CarswellNat 1182, [4] (Can. C.A.) (WL)). tion), 1992 CarswellNat 1182, [4] (Can. Affairs Win v Minister for Immigration & Multicultural (Austl.). (referring to the case of HJ). Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indige- Applicant NABD of 2002 v Minister for Immigration nous Affairs hiding from his persecution can considered that “[a] person successfully problems.scarcely be said to be experiencing no is per- Such a finding verse.” 332 require- fear” the “well-founded that to ensure determination gay applicant, rationally motivated not a bar to the ment was iden- responsibility to over their ran roughshod the two courts claimants in harm that the of persecutory tify the risk HJ and HT \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 18 8-MAR-12 9:05 cused their attention—“physical in em- abuse, discrimination violence or from their communities or ployment, expulsion hands of police and others,” blackmail at the and brutal enforcement of anti-sodomy laws and brutal enforcement the harms that the courts determined would not eventuate be- courts determined would not the harms that the “discretion.”cause of the claimants’ Yet, if there is no real in possibility that the claimants chance, no serious applicants in or blackmail or that the be subjected to violence standable 31420-nyi_44-2 Sheet No. 13 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 13 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 14 Side A 03/19/2012 11:22:47 R R ” 68 333 ., U.N. more g . 67 E for reasons of harms—as con- Compilation of General in (2003) 216 CLR at 490 (Mc- These cases present clear These cases present endogenous harms. S395 66 exogenous text accompanying note 122. QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER See infra text accompanying notes 224–231. would face imprisonment or lashing, then each then or lashing, imprisonment face would See infra In addition to failing to identify the persecutory harm for to identify the persecutory In addition to failing 66. With one potential exception in 67. 68. addressed the scope of The Human Rights Committee has explicitly Human Rights Comm., General Comment No. 22: The Right to Freedom of Human Rights Comm., General Comment 18), ¶¶ 7–8,Thought, Conscience and Religion (Art. U.N. Doc. CCPR/C/ Rights Comm., CCPR General 21/Rev.1/Add.4 (July 30, 1993); U.N. Human (1983), Comment No. 10: Freedom of Expression Comments and General Recommendations Adopted by Human Rights Comments and General Recommendations Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.7, at 133 (May 12, 2004) [here- inafter Compilation of General Comments]; U.N. Human Rights Comm., General Comment No. 34: Article 19: Freedoms of Opinion and Expression, U.N. Doc. CCPR/C/GC/34 (Sept. 11, 2011). permissible limitations in its interpretation of the right to freedom of relig- permissible limitations in its interpretation makers with a principled lit- ion and political opinion, providing decision subject to restraint. mus test for identifying activities appropriately And in the context of religion, some religiously motivated ac- And in the context of religion, some tions—for that support a war op- example, refusal to pay taxes 2012] HJ (Iran) some form of serious identify a risk of failed to court’s analysis be “well-founded.” can be said to harm that In our view, the gay to find that the were correct and British courts Australian harm by conceal- or other serious who avoids physical claimant conduct nonethe- from associated or desisting ing his identity of being persecuted.less faces a risk But what the decisions itself, is that it is the modification of behavior should have said that the modification has on the applicant, or the impact that harm. is the relevant persecutory \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 19 8-MAR-12 9:05 Hugh & Kirby JJ). examples of a genuine risk of non-physical persecutory genuine risk of non-physical examples of a harms—whichrefer to here as we nuance is required to identify the circumstances in which pro- nuance is required to identify the from actions rather than tection is owed where risk follows from identity per se. politi- In that context, for example, some or sedition, may not be cally motivated actions, such as treason on the rights of others. protected because they encroach which there is a “well-founded fear,” the two courts also pos- “well-founded fear,” the two courts which there is a “ broad definition of risk ited an extraordinarily sexual orientation. or im- While risk that follows from actual encompassed by the non-dis- puted sexual identity is readily nexus requirement, crimination norm that informs the trasted with more classic trasted with more 31420-nyi_44-2 Sheet No. 14 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 14 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 14 Side B 03/19/2012 11:22:47 R [Vol. 44:315 70 the Court does not the Court does 71 AND POLITICS limits to the range of activity- and that “the question of what —have to fall found not been 72 no 69 to do . . . distracts attention from the to do . . . distracts attention from 73 limits on the range of protected activities is limits on the range entitled INTERNATIONAL LAW some text accompanying notes 232–233. (2003) 216 CLR at 500–01 (Gummow & Hayne JJ). . at 501 (Gummow & Hayne JJ) (emphasis added). This is perhaps . jurisdiction or power to require anyone to do anything jurisdiction or power to require S395 Id Id See infra This apparently all-embracing position was taken to the This apparently all-embracing position So too sexual orientation.So too sexual authoritative there is less While applicant’s right to In short, what is protected is the live freely and openly as a gay man. a That involves well beyond con- wide spectrum of conduct, going and maintain duct designed to attract sexual partners relationships with them. To illustrate the point with no 71. 72. 73. 69. Human Rights Comm. under Human Rights Comm., Decision of the 70. technically true as the refugee decision maker’s job is to assess risk, not to mandate conduct. the Optional Protocol to the Int’l Covenant on Civil and Political Rights the Optional Protocol to the Int’l Covenant ¶ 4.2, U.N. Doc. CCPR/C/43/ Concerning Communication No. 446/1991, D/446/1991 (Nov. 8, 1991). difficult to reconcile with its later assertion that “[t]he tribunal difficult to reconcile with its later has in the country of nationality” extreme by the United Kingdom Supreme Court, which sug- extreme by the United Kingdom gested that there really are 334 grounds on religious posed in as inherent of activities protected on the scope guidance politi- to religion or is in relation than there sexual orientation question must nonetheless be addressed.cal opinion, the Yet, identity of Australia tells us that “sexual while the High Court sexual . . . as confined to particular is not to be understood aspects of and often will, extend to many acts . . . . It may, and activit[ies],” human relationships be risks “for reasons of sexual based risks that are fairly said to orientation”: \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 20 8-MAR-12 9:05 an individual is within the scope of religious freedom because they are under- freedom because scope of religious within the to attract legal protection. be too remote stood to identify which activity-based risks are beyond the scope of Con- risks are beyond the identify which activity-based vention protection. owed to gay claimants Is refugee status in pub- only from holding hands, or kissing whose risk follows lic? marry, or decide to To those at risk because they cohabit, raise children? implicit suggestion that Moreover, the court’s there are least fundamental question.” 31420-nyi_44-2 Sheet No. 14 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 14 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 15 Side A 03/19/2012 11:22:47 335 S395 ), [2010] HJ and HT 74 follow that a grant of asylum is follow that a grant 75 necessarily QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER are both under-inclusive and over-inclusive. HJ and HT and in many cases the adaptations would obviously be the adaptations would obviously and in many cases In the result, we are of the view that the decisions in In the result, we are of the view Clearly, going to concerts, drinking cocktails, or engaging concerts, drinking cocktails, or Clearly, going to trivial stereotypical examples from British society: just society: from British examples stereotypical trivial themselves free to enjoy heterosexuals are as male about girls beer and talking rugby, drinking playing to be free homosexuals are mates, so male with their drinking to Kylie concerts, themselves going to enjoy about boys and talking coloured cocktails exotically female mates.with their straight mutandis— Mutatis great—the apply to other societies. same must In their men are to be as free as other words, gay live in the society concerned to straight equivalents gay way that is natural to them as their lives in the of persecution. men, without fear 75. Sepet v. Sec’y of State for the Home Dep’t, [2001] EWCA (Civ) 681, 74. HJ (Iran) v. Sec’y of State for the Home Dep’t ( UKSC 31, [78], [2011] 1 A.C. 596, 646 (Lord Rodger) (appeal taken from Eng. & Wales C.A.). [49], [66] (Laws L.J.) (appeal taken from Immigr. Appeal Trib.) (U.K.). and in “boy talk” with female friends should not attract persecu- female friends should not attract in “boy talk” with tion. But it does not 2012] \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 21 8-MAR-12 9:05 The reasoning is too conservative, in that it is insufficiently at- The reasoning is too conservative, that follow from having con- tentive to the endogenous harms tinually to mask one’s true identity. liberal, in It is also too owed where risk follows only from a relatively trivial activity follows only from a relatively owed where risk human rights cost. that could be avoided without significant vision of the nexus To have adopted such a far-reaching scope of the international clause, without interrogating the it, risks fracturing the nor- non-discrimination law that informs the Refugee Convention is mative consensus upon which based. a form of Beyond identifying “sexual orientation” as on the courts to grapple with protected status, there was a duty to be inherent in, the scope of activities properly understood and an integral part of, that status. inter- As a branch of public of states it is surely criti- national law grounded in the consent has insisted, to search for cal, as the English Court of Appeal approach . . . firmly based on “a common standard, or uniform which is recognised as some conception of objective principle a legitimate source of law.” 31420-nyi_44-2 Sheet No. 15 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 15 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 15 Side B 03/19/2012 11:22:47 77 They 76 [Vol. 44:315 have strug- persecution; it asked HJ and HT HJ and HT ) (2005) 216 ALR 1, [103] chose to do so, there was . [167]. Id avoid he AND POLITICS , the English Court of Appeal ex- and S395 concerned an applicant who claimed to concerned an applicant Applicant NABD HJ and HT ( Applicant NABD Applicant NABD of 2002 v Minister for Immigration & Mul- Applicant NABD of 2002 v Minister for Immigration INTERNATIONAL LAW ]) whether the appellant could The information available to the Tribunal about Iran was that The information available to the Tribunal the Tribunal divert At no point in its chain of reasoning did Does it matter? that it does. We believe attempt- Courts S395 apostasy was punishable by death. But the information suggested other punishment being that there was no real chance of that or . . . Rather, . . . [t]he evi- exacted in any but exceptional cases . their devotions quietly dence is that those converts who go about are generally not disturbed ...... which the appellant had from inquiring about whether the fears were well founded. in It did not ask (as the Tribunal had asked [ what may happen to the appellant if he returned to Iran.what may happen to the appellant if he on Based the material concerning the material the Tribunal had, including it concluded that what the appellant had done while in detention, were he to practise his faith in the way not a real risk of his being persecuted. 76.of a refugee has resulted in the outright rejection In some cases this 77. In the United Kingdom, for example, less than two months after the . [164], [168] (Hayne & Heydon JJ). If the harm is to be defined (as it claim.For example, fear persecution if returned to Iran on account of his conversion to Christi- to Iran on account of his conversion fear persecution if returned anity. tribunal considered that the On the basis of his prior behavior, the and would “not a low profile if returned to Iran, applicant would maintain of Christianity or conspicuously choose to generally broadcast his practice proselytize in Iran.” ticultural & Indigenous Affairs (Hayne Heydon JJ) (Austl.). his faith It concluded that if he were to practice of his being persecuted.in this way, there was not a “real chance” A majority decision of the tribunal: of the Australian High Court upheld the 336 orienta- “sexual scope of extant the interrogate it fails to that duty when there is a to determine a protected interest tion” as sim- rather than associated activities, on the basis of to protect per se. function of identity ply as a in the decisions ing to apply \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 22 8-MAR-12 9:05 pressed concerns about its potential scope, and sought to limit the implica- tions of the decision: gled to understand just how to justify recognizing refugee sta- just how to justify recognizing gled to understand of a risk that will not, in fact, accrue. tus on the basis decision was handed down in Id follow from “proselytizing or actively was) as the exogenous harm that would seeking attention,” this result is inevitable. have also understandably balked at the prospect of finding a balked at the prospect have also understandably to follow ground where risk appears nexus to a protected activity. nor from a closely connected neither from status 31420-nyi_44-2 Sheet No. 15 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 15 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 16 Side A 03/19/2012 11:22:47 R 337 TM . RT (Zim.) v. Taxonomy , Elias LJ stated ]. Further- Cf ) 79 . ] is, no doubt, far have been expressly S395 HJ Iran : “I remind myself of the TM (Zim HJ and HT and ] is not limited just to sexual orienta- S395 Applicant NABD HJ and HT can hardly be thought secure. be thought can hardly It would (2005) 216 ALR 1, [145]. QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Legal accuracy is important. Legal accuracy text accompanying notes 253–55. from For an example 78 (2004) 86 ALD 1, [5], [8]. In NALZ v Minister for Immigration & Multicultural & Indigenous NALZ v Minister for Immigration & Multicultural , Madgwick J states that “the reasoning of the majority judges , Madgwick J states that “the reasoning HJ and HT See infra NALZ ] was clearly expressed in deliberately broader, conceptual terms” ] was clearly expressed in deliberately Applicant NABD NALZ (2004) 86 ALD 1, [50], [52] (Austl.) (holding that the tribunal did (2004) 86 ALD 1, [50], [52] (Austl.) (holding , [2010] EWCA (Civ) 916, [38]. and In such an atmosphere, the “win” for gay applicants in applicants for gay “win” the atmosphere, an In such ) more, the individual is then forced into a permanent state of de- more, the individual is then forced into nial. The Supreme Court found it unacceptable that someone persecution.should have to live a lie in order to avoid not It does can someone be ex- necessarily follow that in no circumstances pected to tell a lie to avoid that consequence. [T]here is a good case for saying that where the activity which case for saying that where the activity [T]here is a good of persecution is the need to deny disloyalty would create the risk someone whose political interests or activities to a political party by margins to their lives, this engages only the are of marginal interest and the AIT would be entitled to conclude of their human rights than be, and could be expected to be, less that they would in fact authorities.frank with the Zimbabwean They would not be re- beliefs or opinion in any real way.quired to modify their It is one of his be compelled to deny a crucial aspect thing for a person to whole way of life, as in [ identity affecting his . S395 78. The broader implications of 79. As recognized by Kirby J in Sec’y of State for the Home Dep’t, [2010] EWCA (Civ) 1285, [2011] Imm. Sec’y of State for the Home Dep’t, [2010] Immigr. Trib.) (U.K.) (rejecting a A.R. 259 (appeal taken from Asylum & “core” and “marginal” activities distinction between being forced to lie about or beliefs). TM (Zim.) v. Sec’y of State for the Home Dep’t, [2010] EWCA (Civ) 916, TM (Zim.) v. Sec’y of State for the Home Trib.) (U.K.). [41] (appeal taken from Asylum & Immigr. importance of legal accuracy in decisions of this kind. In a case such as the present, decisions of this kind can literally affect the lives of those subject to them.” Australia, see Affairs would only have to stop selling not err in denying asylum to a man who end the persecution in his home electrical goods to certain customers to country). 2012] S395 dam- of the collateral no account be wrong to take moreover and of religion status on grounds claiming age for applicants in reasoning by the confusing opinion engendered political these decisions. \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 23 8-MAR-12 9:05 that “[p]lainly the ratio of [ (Zim tion cases but will apply to all grounds covered by the Convention.” tion cases but will apply to all grounds recognized in appellate decisions applying the respective cases.recognized in appellate decisions applying For exam- ple, in [in [in and that “the potential impact of this reasoning reaching.” 31420-nyi_44-2 Sheet No. 16 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 16 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 16 Side B 03/19/2012 11:22:47 26 , 9 , fail , 29 Trans- [Vol. 44:315 . 418 (2003) L L. 241, 264–67 HJ and HT L ’ NT EFUGEE and J. R . J. I L ’ M A at the heart of creative at the heart S395 NT I 81 AND POLITICS ,15 , 102 it is important not only to reach not only it is important 82 A Typology of Transjudicial Communication Reclaiming Democracy: The Strategic Use of Foreign Reclaiming Democracy: The Strategic Use of Equity in the Modern Law: An Exercise in Taxonomy Equity in the Modern Law: An Exercise in 1, 97 (1996) (“It is essential in modern society that the 1, 97 (1996) (“It is essential in modern A Forum for the Transnational Development of Refugee Law: A Forum for the Transnational Development . INTERNATIONAL LAW EV 99 (1994). 171 (2008) (discussing the increasing trend of Australian . L. EV L Particularly because the Australian High Court and Court High the Australian because Particularly . L. R ’ Eval Benvenisti, Peter Birks, NT 80 . L. R USTL See See Second and related, both courts failed to identify the en- Second and related, both courts We believe that the judgments in We believe that the . J. I ICH 81. Anne-Marie Slaughter, 82. 80. ELB national Judicial Dialogue, the Internationalisation of Law and Australian Judges (discussing the IARLJ, which furthers the transnational judicial conversation (discussing the IARLJ, which furthers the by allowing judges to collectively analyze refugee law); Michael Kirby, U. W. A law be closely and cogently reasoned . . . . [L]egal certainty is impossible if law be closely and cogently reasoned . and so long as taxonomy is neglected”). judges communicating with judges of other countries). and International Law by National Courts this test.I, the courts’ reliance on First, as developed in Part accrue to find harm that will not, in fact, the risk of exogenous contradic- fear” of being persecuted is flatly a “well-founded under which of all leading courts, tory to the jurisprudence of the posited chance or serious possibility there must be a real form of persecution. objective basis to believe If there is no the appli- to be persecutory may well occur, that the harm said be said to be well-founded. cant’s fear cannot modification as a rele- dogenous harm occasioned by behavior in cases of enforced conceal- vant form of persecutory harm the harm that is most likely to ment despite the fact that this is be objectively well-founded.II, the view As discussed in Part is cognizable persecution en- that serious psychological harm and is in line with interna- joys nascent support in many courts inform the serious harm ele- tional human rights norms that ment of “being persecuted.” the com- A strong affirmation in The IARLJ’s Advanced Refugee Law Workshop (2008) (noting how national courts, through citing each other’s interpreta- (2008) (noting how national courts, through the Convention collectively); tion of the Refugee Convention, interpreted James C. Hathaway, M U. R 338 matters. \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 24 8-MAR-12 9:05 United Kingdom Supreme Court enjoy such authority in the such authority in Court enjoy Supreme United Kingdom judicial conversation” “transnational “the right” result—which,“the right” did—but our view, the courts in also a that do not pose basis of reasons that result on the to reach the test of distortion, and which will withstand risk of doctrinal time. thinking on refugee law, thinking 31420-nyi_44-2 Sheet No. 16 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 16 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 17 Side A 03/19/2012 11:22:47 R 84 339 Millbank, See as an illustration S395 . developed in Part As NAOX v Minister for Immigration & —could Kylie concerts, attend 83 ), [2010] UKSC 31, [78], [2011] 1 A.C. 596, 646 ), [2010] UKSC 31, [78], [2011] 1 A.C. QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Lord Rodger acknowledged that these are “stereotypi- Lord Rodger acknowledged that these are HJ and HT for reasons deemed fundamental for reasons deemed (2009) 112 ALD 54 (Austl.). HJ and HT, note 15, at 392 (referring to the applicants from note 15, at 392 (referring to the applicants Third, and despite the intuitive appeal of Lord Rodger’s appeal despite the intuitive Third, and [H]aving brought a rare successful claim for judicial review to the [H]aving brought a rare successful claim men had their claim re- ultimate appellate court in Australia, the expecting that it would mitted to the tribunal for re-determination, of persecution given that consider whether they faced a real chance of adjudication.this was the issue in dispute at all five levels on Yet they were not gay after remittal the second tribunal decided that to be unreviewable by the all, and this decision was then held courts. 83. In 84. this article, there is an argu- Indeed, although outside the scope of . at 392–93 (citations omitted). The Tribunal decision referred to by of this recent trend). Millbank states: Id Millbank was overturned on appeal in Citizenship 2012] a major made have would these cases of context pelling an increasingly what has become to clarifying contribution concern. prevalent gay society where all liberated global of a genuinely promotion men—if were so inclined they \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 25 8-MAR-12 9:05 sip cocktails, or talk about other men, it does not follow in our about other men, it does not sip cocktails, or talk activities can solely from one of these view that risk accruing the nexus the protective limits built into be reconciled with Convention.clause of the Refugee As raw as it might sound, to “pick up community has not yet consented the international and un- action that leads to even serious the pieces” for every remediated harm. the “for reasons of” clause To the contrary, to delimit the Refugee Convention precisely was included in at risk of seri- refugee class to those persons the scope of the ous harm cal examples” of male homosexual conduct. of State for HJ (Iran) v Sec’y the Home Dep’t ( supra (Lord Rodger) (appeal taken from Eng. & Wales C.A.). (Lord Rodger) (appeal taken from Eng. on the scope of what is a textually ment that the lack of normative guidance decision makers to invent obvious limitation could inspire some subsequent gay refugee claims. new means to avoid the recognition of III, many actions are, of course, appropriately included in the are, of course, appropriately included III, many actions in the refugee def- forms of civil or political status enumerated inition. But it is equally clear that the non-discrimination of claim is not without lim- norm that informs the five grounds itation. is not To read the Convention as essentially boundless ensuring that the protection in our view helpful to the cause of and reliably addressed. needs of sexual minorities are fairly 31420-nyi_44-2 Sheet No. 17 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 17 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 17 Side B 03/19/2012 11:22:47 87 and 91 Both ap- [Vol. 44:315 ? 90 and that af- and that EAL 86 R E B “sentenced by the 88 ISK R 92 AND POLITICS MPLAUSIBLE I involved the application for refugee sta- the application involved One applicant recounted “that local peo- recounted One applicant AN AN 85 C S395 INTERNATIONAL LAW OW I. H . at 480 (Gleeson CJ)...... at 486 (McHugh & Kirby JJ). . and been “condemned to death by stoning.” and been “condemned Appellant S395/2002 v Minister for Immigration & Multicultural Affairs Appellant S395/2002 v Minister for Immigration Id Id Id Id Id Id Id 89 ) (2003) 216 CLR 473, 479 (Gleeson CJ) (Austl.) ) (2003) 216 CLR 473, 479 (Gleeson CJ) The case of The case The allegations of past persecution were, however, found of past persecution were, however, The allegations or discrimination did not experience serious harm and . . . prior to their departure from Bangladesh, will be persecuted there is [no] real chance that they return. . . . [W]hile because of their sexuality if they in Bangladesh, Ban- homosexuality is not acceptable the issue rather gladeshis generally prefer to ignore than confront it. [The applicants] lived together for any more than mi- over 4 years without experiencing their own families. nor problems with anyone outside in a discreet man- They clearly conducted themselves 86. 87. 88. 89. 90. 91. 92. 85. S395 tus of two gay Bangladeshi men “who had been living in Ban- been living in men “who had gay Bangladeshi tus of two had been “ostracized and in a domestic relationship” gladesh families.” by their ( His partner testified that he had been “attacked on a number that he had been “attacked His partner testified Islamic fundamentalists,” of occasions by to focus exclusively on not to be credible, leading the tribunal risk.the prospect of forward-looking the couple Because that would accrue if they framed their case around the risks requests were denied lived an openly gay life, their protection grounds that they by the first level tribunal on the 340 \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 26 8-MAR-12 9:05 ple abused, insulted, bashed and tortured him” and tortured insulted, bashed ple abused, plicants claimed to be “captives in [their] homeland” plicants claimed ter he and his partner moved to another location “they were moved to another location ter he and his partner destroyed.” and their possessions were attacked and beaten, stone on the to 300 lashes of a whip with a fundamentalists end” feared that they would be “killed not only by the fundamental- would be “killed not only by the feared that they general masses.” ists but also by the 31420-nyi_44-2 Sheet No. 17 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 17 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 18 Side A 03/19/2012 11:22:47 : 95 AW 341 L : 357 (Er- ), [2010] Secretary of . (stating that 93 HJ and HT James C. Hathaway Januzi v ROTECTION NTERNATIONAL HJ and HT In the compan- I P See 94 L. 207 (2007) L ’ NT ROTECTION IN NTERNATIONAL . J. I P I ICH The Michigan Guidelines on Protection Else- M EFUGEE R , 28 , [2006] UKHL 5, [2006] 2 A.C. 426 (appeal , [2006] UKHL 5, [2006] 2 A.C. 426 in , QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER ONSULTATIONS ON Internal Protection/Relocation/Flight Alternative as an Aspect of Internal Protection/Relocation/Flight Alternative C is also predicated on the view that the applicants is also predicated LOBAL G . at 481 (quoting the lower Tribunal’s factual finding). . [43], [2011] 1 A.C. at 633 (Lord Rodger). This assumption relies S Id Id ner and there is no reason to believe that they will that to believe reason is no and there ner now. returned home to do so if not continue Court in the United Kingdom Supreme The reasoning of [T]here appears to have been nothing in the evidence to suggest that there was any area of Cameroon where gay men could live openly without any fear of persecution. So in no sense would the 94. Dep’t ( HJ (Iran) v Sec’y of State for the Home 95. 93. ika Feller et al. eds., 2007) (arguing against the practice of denying refugee ika Feller et al. eds., 2007) (arguing against to relocate internally within their status to refugee seekers who are able home state); James C. Hathaway, where, Adopted January 3, 2007 the insistence that protection for refugees be provided elsewhere may result the insistence that protection for refugees the Convention and providing in the denial to refugees of their rights under provided by states other than the guidelines for the reliance on protections home state). In any event, as Lord Rodger conceded in UNHCR’ UKSC 31, [43], [2011] 1 A.C. 596, 633 (appeal taken from Eng. & Wales UKSC 31, [43], [2011] 1 A.C. 596, 633 finding). C.A.) (quoting the lower Tribunal’s factual on the unfortunate holding of the House of Lords in on the unfortunate holding of the House State for the Home Department taken from Eng. & Wales C.A.), that an applicant can be required to relocate taken from Eng. & Wales C.A.), that an is unable affirmatively to to a place of “safety” even if the home government protect his or her human rights there.misconstruc- We believe this to be a conceived in consonance with the tion of the duty of internal protection Convention. text, object, and purpose of the Refugee The reasoning of the Supreme Court thus proceeded to con- The reasoning of the Supreme Court 2012] pro- conclusion, and adopted this Court of Australia The High based on the finding claims to assess the applicants’ ceeded if re- sexual identity conceal their would, in fact, that they Bangladesh. turned to HJ and HT behavior if sent home.would modify their In relation to the below that the court relied on the finding Iranian applicant, legal prohibi- now much more aware of the “the appellant is punishments in Iran and the potential tions on homosexuals that as a prohibitions . . . . We are satisfied for breach of those would behave discreetly.” matter of fact he \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 27 8-MAR-12 9:05 & Michelle Foster, Refugee Status Determination ion Cameroonian case, the Supreme Court adopted the con- case, the Supreme Court adopted ion Cameroonian conducting tribunal “that in addition to clusion of the initial move to an- in private, [the applicant] would any relationship he would not be known.” other part of the country where 31420-nyi_44-2 Sheet No. 18 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 18 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 18 Side B 03/19/2012 11:22:47 R HJ HJ and [Vol. 44:315 (2003) CLR at 41 (2011). S395 note 95. L.J. Asylum and the Doctrine of Asylum and the Doctrine , [2010] UKSC 31, [43], supra AMBRIDGE to the jurisprudence on internal to the jurisprudence AND POLITICS C HJ and HT . The initial tribunal did not contest , 70 96 but sidestepped its application by but sidestepped HJ and HT 97 HJ and HT , [2010] UKSC 31, [35]–[36], [82], [2011] 1 A.C. at INTERNATIONAL LAW , the High Court considered that the “central question” for a , the High Court considered that the “central (2003) 216 CLR at 490 (Gummow & Hayne JJ, 503 (McHugh & , [2010] UKSC 31, [84], [2011] 1 A.C. at 648., [2010] UKSC 31, [84], For an interesting HJ and HT S395 Indeed, Lord Rodger appears to treat the applicant’s Indeed, Lord Rodger affirmed that the Refugee Convention is concerned with the pro- affirmed that the Refugee Convention 98 S395 In view of these findings, how did the courts find a well- how did the courts of these findings, In view applicant be returning to a part of the country where the state to a part of the country where the applicant be returning persecution. would protect him from It should always be remembered that the purpose of this exercise is It should always be remembered that the to protection because their to separate out those who are entitled those who are not.fear of persecution is well founded from The causative condition is central to the inquiry. This makes it neces- to happen to the appli- sary to concentrate on what is actually likely cant. to As Lord Walker says in para 88, the inquiry is directed is returned to his what will happen in the future if the applicant own country. to An approach which disregards what is in fact likely applicant is wrong and occur there in the case of the particular should not be adopted. , [2010] UKSC 31, [82], [109], [2011] 1 A.C. at 647–48, [2010] UKSC 31, [82], [109], [2011] (Lord Rodger), 96. factual accuracy of the find- In truth, there are reasons to doubt the 97. In 98. . [36], [2011] 1 A.C. at 631. [2011] 1 A.C. at 633. “would” Regarding the issue of whether the applicant see (as opposed to “should”) internally relocate, ings of the lower tribunals in an openly gay man it was “impossi- the Iranian applicant’s assertion that as ble” for him to return to his country. HJ and HT of analysis on the implications context, see Richard Buxton, protection in the U.K. Internal Flight in the Light of HJ (Iran) decision maker is whether or not there is a real chance that the applicant decision maker is whether or not there of origin. will be persecuted if returned to their country and HT necessitates an examination of what spective assessment of risk and that this to their country of origin. the applicant will “actually do” if returned HT 656 (Lord Dyson). Lord Hope was particularly emphatic: Id 495, 500 (Gummow & Hayne JJ). Court in In a similar vein the Supreme Kirby JJ); 630–31 (Lord Rodger), 647–48 (Lord Hope). 342 there was that the basis status on for refugee eligibility sider exogenous harms the truly horrific no chance that essentially openly gay—imprisonment follow from being that would with in physical assaults in Iran, and savage of torture the possibility Cameroon—would eventuate. founded fear? and Supreme Court ex- Both the High Court the prospec- the central importance of pressly acknowledged of risk, tive examination \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 28 8-MAR-12 9:05 failing explicitly to identify an objective risk of persecutory to identify an objective risk of failing explicitly harm. 31420-nyi_44-2 Sheet No. 18 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 18 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 19 Side A 03/19/2012 11:22:47 R 99 343 also HJ and HT 100 note 15 (discussing supra ) (2005) 216 ALR 1, [140] : an applicant would conceal or sup- an applicant would Millbank, S395 why Applicant NABD ( See generally a well-founded fear of persecution.” fear of a well-founded QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER has decision makers have engaged in “mental-gymnastics” Applicant NABD of 2002 v Minister for Immigration & Mul- Applicant NABD of 2002 v Minister for Immigration on the reasons , [2010] UKSC 31, [82], [2011] 1 A.C. at 647–48, [2010] UKSC 31, (Lord S395 HJ and HT It is clear that the appellants did not seek to make a case that It is clear that the appellants did not seek such harm as could On the Tribunal’s findings, no fear of HJ and HT (2003) 216 CLR at 511, 513. The Supreme Court in and [s]ocial and family disapproval of overt sexual behaviour of any kind, gay or straight, [which] may weigh more heavily with some people than others. Concealment due to a well-founded fear of persecution is one thing. Concealment in reaction to family or so- they wished to express their homosexuality in other than a discreet, they wished to express their homosexuality indeed personal, way. There may be good reason, divorced entirely from fear, for this. of They may have wished to avoid disapproval in which they lived, per- the, or a significant section of the, society haps even marked disapproval...... a need for any par- fairly be characterized as persecution imposed such “discretion” as ticular discretion on the part of the appellants: of free choice. they exercised, was exercised as a matter 99. 100. focus in the doctrinal difficulties, the analytical Quite apart from S395 Rodger) (emphasis added). Rodger) (emphasis made clear that some motives for concealment or suppression are outside made clear that some motives for concealment the ambit of refugee law. that Lord Hope, for example, refers to discretion stems from fear of Australian tribunal judges’ use of stereotypical notions of “gayness” as a tem- Australian tribunal judges’ use of stereotypical plate for evaluating refugee applicants). the far-reaching In order to avoid implications of S395 2012] fear” re- “well-founded of the dispositive as motives subjective the link between and unqualified drawing a direct quirement, well- of the and the satisfaction subjective motive applicant’s fear requirement.founded an applicant has In his view, where of because of a fear primarily modify his conduct chosen to recognized because status should be harm, refugee exogenous a person “[s]uch of exogenous that, where the threat This reasoning suggests is of neces- an applicant to be discreet, there harm motivates occurring. fear of that exogenous harm sity a well-founded modification precisely the opposite since the But the reality is in most cases, obviate the risk. of behavior will, \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 29 8-MAR-12 9:05 press his behavior runs the risk of inviting subjective assumptions about nat- press his behavior runs the risk of inviting (and often stereotyped) under- ural discretion, often informed by narrow standings of sexual identity. to find that applicants were not oppressed, but rather were discreet as a mat- to find that applicants were not oppressed, ter of “free choice.” ticultural & Indigenous Affairs (Kirby J) (Austl.). for this Justices Callinan and Heydon expressly provided route in their dissenting judgment in 31420-nyi_44-2 Sheet No. 19 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 19 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 19 Side B 03/19/2012 11:22:47 — 101 Minister [Vol. 44:315 ., I.N.S. v, Cardoza-Fon- g . e , See AND POLITICS (2009) 259 ALR 595, [53] (Austl.) —there no authority whatso- is http://www.unhcr.org/refworld/docid/ 102 evidence of forward-looking risk of forward-looking evidence available at as well as INTERNATIONAL LAW , 31, [22], [2011] 1 A.C. at 625. [2010] UKSC Yet it is surely Yusuf v Can. [1992] 1 FC 629, para. 5 (Can. C.A.) (“It is true, of Yusuf v Can. [1992] 1 FC 629, para. 5 (Can. See While there is disagreement about whether the “well- the whether about is disagreement there While To the element of fear—a state of mind and a subjective condi- tion—is ‘well-founded.’ This implies that it added the qualification concerned that deter- is not only the frame of mind of the person of mind must be sup- mines his refugee status, but that the frame ported by an objective situation.fear’ The term ‘well-founded objective element . . . . therefore contains a subjective and an cial pressures is another. So one must ask why the applicant will one must ask why is another. So cial pressures way.conduct himself in this approach is called A carefully nuanced protec- who are truly in need of surrogate for, to separate out those are not. tion from those who 102. 101. inquiry con- suggests that the “well-founded fear” Standard doctrine we believe that it does not that it does we believe 3ae6b3314.html [hereinafter UNHCR Handbook]. seca, 480 U.S. 421, 431 (1987) (“[T]hat the fear must be ‘well-founded’ does (1987) (“[T]hat the fear must be ‘well-founded’ seca, 480 U.S. 421, 431 subjective beliefs.”); not alter the obvious focus on the individual’s has been held to encompass both (“[T]he Convention definition of refugee subjective question is whether the subjective and objective elements. The applicant . . . has a fear of persecution. in the If that question is answered that fear is well-founded, is an affirmative, the following question, whether objective one.”).the existence There are also various statements supporting Handbook on Procedures and of the subjective element in the UNHCR’s Criteria for Determining Refugee Status. states: For example, the Handbook on Procedures and Criteria for U.N. High Comm’r for Refugees, Handbook 1951 Convention and the 1967 Pro- Determining Refugee Status under the U.N. Doc. HCR/IP/4/Eng/Rev.1, ¶ tocol Relating to the Status of Refugees, 38 (Jan. 1992), for Immigration & Citizenship v SZJGV tains both a subjective and objective element. tains both a subjective HJ and HT to purely pri- the line between discretion consequent readily apparent that of a fear of concerns and discretion as the result vate and non-cognizable attitudes is a very in the prevalence of such social being persecuted reflected practice.hard one to draw in nuanced approach” that Lord The “carefully leading to an likely as a practical matter unviable, Hope calls for is therefore for judicial subjectivity. extraordinary opportunity 344 of subjec- requires demonstration fear” requirement founded tive trepidation refugee has always been inter- course, that the definition of a Convention objective element . . . . [But] I find it preted as including a subjective and an be said that a person . . . could be hard to see in what circumstances it could rejected because it is said that fear right in fearing persecution and still be does not actually exist in his conscience. The definition of a refugee is cer- tainly not designed to exclude brave or simply stupid persons in favour of those who are more timid or more intelligent. Moreover, I am loath to be- lieve that a refugee status claim could be dismissed on the ground that as the claimant was a young child or a person suffering from a mental disability, he \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 30 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 19 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 19 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 20 Side A 03/19/2012 11:22:47 R 345 505 (2004) (1989) 169 or a “real L. ), [1988] 1 A.C. L (“The existence ’ 107 note 18, ch. 3 (dis- NT a “reasonable de- a “reasonable . J. I supra 105 , ICH Sivakumaran ) that the harm said to ) that the harm M 109 , 26 ATHAWAY L 493, 497 (2004) H L Even the United States Su- United States Even the ’ 110 NT 103 . J. I Is There a Subjective Element in the Refugee Con- Is There a Subjective Element in the Refugee The Michigan Guidelines on Well-Founded Fear, The Michigan Guidelines on Well-Founded ICH a “serious possibility,” M , 480 U.S. at 431 (“That the fear must be ‘well- , 480 U.S. at 431 (“That the fear must 106 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER , 26 Win v Minister for Immigration & Multicultural Affairs Win v Minister for Immigration , 480 U.S. at 431. While courts have framed the objective standard have framed While courts —theall the tests is much the same. upshot of 104 108 . at 440. See Cordoza-Fonseca Cardoza-Fonseca Id & Ethnic Affairs Chan Yee Kin v Minister for Immigration 109. 104. 105. 106. ( R. v. Sec’y of State for the Home Dep’t 108. 103. however, for a remedy United States domestic legislation provides, 107. Immigration), [1995] 3 SCR Chan v. Canada (Ministry of Emp’t & 110. “[T]he relevant inquiry [is] whether a reasonable person in the asy- (arguing that there is no subjective element in the “well-founded fear” stan- (arguing that there is no subjective element dard); James C. Hathaway, Adopted March 28, 2004 CLR 379, 388 (Austl.). beyond that contemplated by the Refugee Convention, allowing for a grant beyond that contemplated by the Refugee to return home “because of persecu- of “asylum” to persons who are unable . . . .”tion or a well-founded fear of persecution National- Immigration and ity Act § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42) (2006). 593, para. 120 (Can.). of subjective fearfulness in the sense of trepidation should neither be a con- of subjective fearfulness in the sense of status, nor advantage an appli- dition precedent to recognition of refugee well-established risk.”). cant who faces an otherwise insufficiently C.A.). 958, [78] (appeal taken from Eng. & Wales lum applicant’s circumstances would fear persecution . . . .” Morales v. founded’ does . . . not transform the standard into a ‘more likely than not’ founded’ does . . . not transform the standard one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.”). [2001] FCA 132, [20] (Austl.) (“It is not fatal to such a claim of persecution (Austl.) (“It is not fatal to such a claim [2001] FCA 132, [20] she is a leading exponent of a claim that the claimant fails to show that he or to, or a wish to, exercise such rights.”); vention’s Requirement of ‘Well-Founded Fear’? or she was incapable of experiencing fear, the reasons for which clearly exist of experiencing fear, the reasons for which or she was incapable in objective terms”); fear” in refugee law); James C. cussing the elements of “well-founded Hathaway & William S. Hicks, 2012] objective of forward-looking, evidence view that for the ever with. be dispensed risk can \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 31 8-MAR-12 9:05 Whatever the applicant believes, refugee status is to be recog- believes, refugee status is Whatever the applicant it need there is credible evidence (though nized only where of a probability not rise to the level preme Court, which has opined that there is an “obvious focus is an “obvious opined that there which has preme Court, that insists beliefs,” nonetheless subjective on the individual’s if also objectively asylum only can justify those beliefs grounded. ways—ain various possibility,” “reasonable be persecutory may well occur. be persecutory may gree of likelihood,” chance” 31420-nyi_44-2 Sheet No. 20 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 20 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 20 Side B 03/19/2012 11:22:47 R R note S395 S395 ? or there [Vol. 44:315 or a “far- ARM See infra 112 114 H is doctrinally conceal their iden- face any real chance of face any real chance HJ and HT would NDOGENOUS not E AND POLITICS “insubstantial,” and 113 S395 ECOGNIZING The problem that arises in both The problem that R 115 VOID (1989) 169 CLR at 389 (Mason C.J.). , this is found not to be the case, the risk of , this is found not is thus clear: because, on the facts found or is thus clear: because, INTERNATIONAL LAW it might reflect the reality that concealment is that concealment reflect the reality it might A text accompanying note 43. 111 HY supra . at 398 (Dawson J.). . at 429 (McHugh J.). Id Id Chan Yee Kin II. W HJ and HT HJ and HT This is not to say, however, that there was no well-founded This is not to say, however, that there In their pursuit of fair treatment of the cautious gay appli- In their pursuit of fair treatment In some, perhaps many, cases, “discretion” will prove im- prove will “discretion” cases, many, perhaps In some, 114. 115. 112. See 113. 111. pointed example. The story of Anne Frank provides a unsound. of dis- While their strong condemnation of a “duty overdue, it cannot displace cretion” is both laudable and long status in the real risk of a the responsibility to ground refugee persecutory harm. cases.fear of being persecuted in the two we To the contrary, cant, the Australian and British courts failed to identify the cant, the Australian and British could honestly be said to be risk of any persecutory harm that “well-founded.”which they Having done so, the basis upon recognized refugee status in 130. I.N.S., 208 F.3d 323, 330 (1st Cir. 2000) (quoting Aguilar-Solis v. I.N.S., 168 I.N.S., 208 F.3d 323, 330 (1st Cir. 2000) F.3d 565, 572 (1st Cir. 1999)). 346 possible.“dis- fact that even account of the may be on This for being sought out minorities are of sexual creet” members persecution, self-repres- for a person who would opt for exogenous harm than “remote,” sion is no more \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 32 8-MAR-12 9:05 not a realistic possibility for a particular claimant, for a particular possibility not a realistic may be a real chance that the applicant will be “outed” not- will be “outed” the applicant a real chance that may be of behavior. the modification withstanding as in But if, and tity as gay men and would therefore tity as gay men and imprisonment, physical assault, or other exogenous harm, a assault, or other exogenous imprisonment, physical such harm must fail.claim based on As long as the persecu- would re- as the exogenous harm that tory harm is conceived it is impossible to show the sult from living an openly gay life, forward-looking risk existence of the objectively grounded, that refugee law requires. and the applicants assumed by the courts, fetched possibility.” 31420-nyi_44-2 Sheet No. 20 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 20 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 21 Side A 03/19/2012 11:22:47 , 116 en- 347 S395 [2001] FCA 968, Similarly, the Chief 117 consequences of being consequences went further, expressly rejecting exogenous HJ and HT QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER (2003) 216 CLR at 481 (Gleeson CJ). 118 harms that follow from self-repression are likely to be from self-repression are likely harms that follow Appellant S395/2002 v Minister for Immigration & Multicultural Affairs Appellant S395/2002 v Minister for Immigration S395 Kabir v Minister for Immigration & Multicultural Affairs ) (2003) 216 CLR 473, 480 (Gleeson CJ) (Austl.). Sadly, the applicants bear some measure of responsibility Sadly, the applicants The parties in [i]t was never part of the claim advanced by the ap- [i]t was never part of the claim persecution they pellants to the Tribunal that the apprehended in fu- had experienced in the past, and of behavior about ture, took the form of repression open, and that they which they desired to be more their relation- escaped harm only by concealing ship. 118. 117. 116. appellant’s claim of fear of fu- “It is to be emphasized that the first S395 in a case of self-repression of one’s sexual identity. of one’s sexual of self-repression in a case rea- For [19] (Austl.). ture persecution was based upon an account of violence, torture, and con- ture persecution was based upon an account of death or serious injury, not upon demnation to death, and a prediction against his will, to behave dis- any supposed concern about being obliged, creetly.” ( openly gay are remote in cases of enforced discretion, the in cases of enforced discretion, openly gay are remote dogenous readily established. such harms will often And because recognized violation of core internationally amount to the state’s failure are, if coupled with the home human rights, they recognized precipitating risk, appropriately to counter the doctrine as persecutory. under prevailing to pinpoint the Australian and British courts for the failure of harms as the relevant persecution.the endogenous In on the risk of the exogenous the applicants based their claims an openly gay lifestyle. harm that would follow from living On appeal to the Federal Court, Judge Lindgren noted the On appeal to the Federal Court, they had to modify their be- applicants “did not complain that haviour so as not to attract attention.” 2012] there was. that believe was the courts’ view, in our The error, that is plausible—indeed, identify the harm failure to likely— the cases will be real risk in such below, the sons developed modi- by the or that occasioned in concealment, harm implicit of one’s fundamental or suppression of one’s behavior fication identity. Even though the \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 33 8-MAR-12 9:05 Justice of Australia observed that identification of the harm as their experience of self-repres- identification of the harm as their 31420-nyi_44-2 Sheet No. 21 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 21 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 21 Side B 03/19/2012 11:22:47 HJ and [Vol. 44:315 ]. S395 —thus a advancing 120 AND POLITICS 121 displays at least a glimmer of recog- : S395 [2010] UKSC 31, [2011] 1 A.C. 596 (on file with ), [2010] UKSC 31, [2011] 1 A.C. 596 (appeal taken ), [2010] UKSC 31, [2011] 1 A.C. 596 (appeal , [2010] UKSC 31, [2011] 1 A.C. 596 (on file with , [2010] UKSC 31, [2011] 1 A.C. 596 http://www.unhcr.org/refworld/docid/48abd5660. INTERNATIONAL LAW HJ and HT HJ and HT available at HJ and HT, Astoundingly, even the UNHCR’s intervention argued intervention the UNHCR’s even Astoundingly, Guidance Note on Refugee Claims Relating to Sexual Orienta- Claims Relating Note on Refugee Guidance 119 The judgment in Being compelled to forsake or conceal one’s sexual Being compelled the is instigated or condoned by identity, where this to persecution. LGBT persons State, may amount being publicly identified will often who live in fear of to orientation as a result in order conceal their sexual in- consequences of such exposure, avoid the severe arbi- of incurring harsh penalties, cluding the risk so- dismissal from employment and trary house raids, cietal disapproval. not only be con- Such actions can to and as violating the right sidered discriminatory of as infringing the right to freedom privacy, but also opinion and expression. jective serious harm that would occur were the applicant’s sexual jective serious harm that would occur the individual experience identity to become disclosed, rather than with respect, wrongly of suppression. The domestic courts have, latter, requiring the indi- identified the relevant persecution as the is not reasonably vidual to show that his experience of suppression tolerable. the This conceptual error is the result of a misreading of Court in [ leading decision of the Australian High . Case on Behalf of the First Intervener (U.N. High Comm’r for Refu- 121. Guidance Note on Refu- U.N. High Comm’r for Refugees, UNHCR 120. (U.N. High Comm’r for Refu- Case on Behalf of the First Intervener 119. persecution is the ob- In a case such as the present, the relevant authors). gee Claims Relating to Sexual Orientation and Gender Identity, ¶ 12 (Nov. gee Claims Relating to Sexual Orientation 21, 2008), html. This paragraph is referred to in the UNHCR’s submissions in HT gees), [7], authors). gees), [39], Case on Behalf of the Appellant, [99], HJ (Iran) v. Sec’y of State for the Case on Behalf of the Appellant, [99], Home Dep’t ( authors). from Eng. & Wales C.A.) (on file with 348 sion. \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 34 8-MAR-12 9:05 that “[t]here is no separate question of whether the modifica- question of is no separate that “[t]here persecution” behavior] is itself tion [of nition that the relevant persecutory harm may be that occa- nition that the relevant persecutory sioned by the modification of behavior. and Justices McHugh characterize the nature of Kirby in the High Court of Australia the relevant harm as the less-inclusive position than that taken in the Organization’s that taken position than less-inclusive own Gender Identity tion and 31420-nyi_44-2 Sheet No. 21 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 21 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 22 Side A 03/19/2012 11:22:47 HJ 349 of serious harm of serious to place himself in a to place himself , [2010] UKSC 31, [2011] 1 threat in itself HJ and HT The Secretary of State advanced The Secretary of 122 123 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER 124 (2003) 216 CLR at 490. of harm. fear of the well-founded cases, In such had, in fact, recognized endogenous harm as the rele- endogenous harm as the had, in fact, recognized S395 threat fear that, un- applicant is the held by the persecution conduct, he the harmful person acts to avoid less that suffer harm.or she will the It is in of Appeal decision under review Similarly, the Court with its menacing implications that constitutes the that constitutes menacing implications with its conduct. persecutory If [Anne Frank] escaped and claimed asylum, the If [Anne Frank] escaped and faced a real risk of question would be whether she persecution on return. The real Anne Frank would obviously did and have been a refugee because she be helpful.therefore her example may not if But return to Holland (improbably) it was found that on by hiding in she would successfully avoid detection of inquiry would the attic, the answer to the first stage persecution by the be that she was not at real risk of Nazis. But the second stage would be to ask whether in her attic would permanent enforced confinement itself amount to persecution. If it would, she would be a refugee. 122. 124. Case for the Respondent, [68], 123. HJ (Iran) v Sec’y of State for the Home Department, [2009] EWCA (Civ) 172, [8], [2009] Imm. A.R. 600 (Pills L.J.) (appeal taken from Asylum & Immigr. Trib.) (U.K.) (emphasis added). The Secretary of State’s submission was embraced by Sir John The Secretary of State’s submission if it could be imagined that Dyson, who opined that “[e]ven would not objectively have Anne Frank, as an asylum seeker, in the attic, she would never- been at risk of being discovered 2012] as the characterization of the “threat” Despite the confusing “menac- judges’ reference to the resultant relevant harm, the applicants’ signals their awareness that the ing implications” is the real persecutory harm. psychological response and HT can be estab- prior authority that a claim vant risk, applying behavior in a applicant is forced to modify his lished where the significant way that is “sufficiently \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 35 8-MAR-12 9:05 A.C. 596 (on file with authors). this position before the Supreme Court, drawing on the plight the Supreme Court, drawing this position before of Anne Frank: position of persecution.” 31420-nyi_44-2 Sheet No. 22 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 22 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 22 Side B 03/19/2012 11:22:47 while IARY OF A 127 D [Vol. 44:315 HE , T RANK It is plain that it re- It is plain that it F 126 NNE A AND POLITICS 129 .” Lord Hope simply raised the question simply raised Lord Hope 125 Most forcefully of all, Lord Collins unequivo- Most forcefully INTERNATIONAL LAW , [2010] UKSC 31, [118], [2011] 1 A.C. at 658. 128 , 338–39 (Otto H. Frank & Mirjam Pressler, eds., Susan Massotty, . [24], [2011] 1 A.C. at 626. . [96], [2011] 1 A.C. at 653. . [75], [2011] 1 A.C. at 645. . [107], [2011] 1 A.C. at 655 (emphasis added). then the Secretary of State is entirely correct to say then the Secretary of State is IRL HJ and HT Id Id Id Id G 130 We believe that Lord Collins’ reasoning is mistaken.We believe that The Lord Walker, on the other hand, considered that a focus hand, considered on the other Lord Walker, 125. 126. 127. 128. 129. 130.not remote, with history provid- We know of course that the risk was OUNG ing clear evidence that the Frank family was at all times at serious risk of ing clear evidence that the Frank family being discovered. morning of 4 The Frank family was discovered on the of the Security Police.August 1944, and arrested by Dutch members It is believed that Anne Frank (and her sister Margot) died in Bergen-Belsen, a concentration camp near Hanover, Germany. trans. 1995) (1947). Y submission of the Secretary of State was neither absurd nor submission of the Secretary of unreal. Frank To the contrary, if it were found that Anne detection by hiding in the could have successfully avoided attic, 350 a fear harm, of serious fear had a well-founded have theless a Jew her identity as to conceal by her decision not eliminated in the attic.” and live “may be by modification of behavior on the harm occasioned and lead to confusion,” an unnecessary complication, \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 36 8-MAR-12 9:05 that she was not at real risk of being sent to the concentration that she was not at real risk of being camps.argued, not Yet this would, as the Secretary of State refugee status.require that Anne Frank be denied The risk of would itself be the violation permanent enforced confinement a sufficiently serious form of of a core human right and hence persecuted.harm to give rise to a risk of being Walker Lord noted that “[t]he conditions recognized as much when he confined in her attic away which [Anne Frank] had to endure, and in constant fear from the normal pleasures of childhood cally rejected the notion: “Simply to re-state the Secretary of notion: “Simply to re-state the cally rejected the it shows that it is not possible to characterize State’s argument than absurd and unreal. as anything other the gas cham- Jews of the concentration camp and mains the threat to the persecution ber which constitutes “whether opting for discretion itself amounted to persecu- itself amounted opting for discretion “whether to answer it. made no attempt tion,” but Lord Rodger made the unclear suggestion that this approach the unclear suggestion that Lord Rodger made of secondary applicant “to establish a form would require the persecution.” 31420-nyi_44-2 Sheet No. 22 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 22 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 23 Side A 03/19/2012 11:22:47 R 135 351 , [2010] UKSC 31, [2011] 1 in which application of 136 In its (fully justified) deter- In its (fully justified) HJ and HT 134 Although in the Supreme Court the Although in the 132 is not the conceptualization of the harm conceptualization is not the QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER [2010] UKSC 31, [96], [2011] 1 A.C. at 653. [2010] UKSC 31, [96], [2011] 1 A.C. at note 18. 131 HJ and HT . [35], [73]-[81], [119]-[129], [2011] 1 A.C. at 630–31. [35], [73]-[81], [119]-[129], [2011] (Lord it seems clear that the Court of Appeal used the test the Court of Appeal used the it seems clear that 133 HJ and HT, See id See supra The problem with the approach adopted by the Court of adopted with the approach The problem It would, in truth, have been straightforward for both the It would, in truth, have been straightforward 136. The below discussion should not be read as an exhaustive treatment 131. 132. 133. Case for the Respondent, [68], 135. 134. of Appeals expressly noted For example, Pills L.J. in the Court that a of the full range of rights that might be relevant where a gay applicant has engaged in self-oppression. For example, in certain circumstances such self- repression may infringe the right to hold opinions without interference, or Indeed, there are at least two ways 2012] as be described to severe enough were certainly of discovery, persecution.” Appeal in \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 37 8-MAR-12 9:05 to, amongst other things, legitimate deference to the social things, legitimate deference to, amongst other of origin. mores of the country Secretary of State attempted to downplay the significance of attempted to downplay the significance Secretary of State to it as no tolerability” standard, referring the “reasonable being perse- for the ordinary test for more than “shorthand” cuted, Hope), 644–47 Rodger), 658–661 (Lord (Lord Dyson) (discussing the “rea- sonable tolerability” overlay). mination to distance itself from this misguided “reasonable tol- itself from this misguided “reasonable mination to distance also the Supreme Court seems unfortunately erability” overlay, underlying without analysis the distinct but to have discarded to a risk of endogenous harm may amount notion that serious being persecuted. Kingdom Supreme Court Australian High Court and United by the modification to have recognized the harm occasioned of one’s identity as persecu- of one’s behavior or suppression view of the risk of being tory harm, drawing on the established or systemic failure of persecuted as comprised of the sustained one of the core entitlements state protection in relation to international community. that has been recognized by the “judgment as to what is reasonably tolerable is made in the context of the “judgment as to what is reasonably tolerable particular society.” [2009] HJ (Iran) v. Sec’y of State for the Home Dep’t, 600EWCA (Civ) 172, [32], [2009] Imm. A.R. Asylum & (appeal taken from Immigr. Trib.) (U.K.). A.C. 596 (on file with authors). as the endogenous harm, but rather the “reasonable tolerabil- but rather the harm, as the endogenous a to substantiate was required the court insisted ity” overlay finding of persecution. 31420-nyi_44-2 Sheet No. 23 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 23 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 23 Side B 03/19/2012 11:22:47 R . [Vol. 44:315 identifies 138 TM (Zimbabwe) v , 03, , [2010] UKSC 31, [72], HJ and HT AND POLITICS Nov. 20, 1989, 1577 U.N.T.S. 3. , the English Court of Appeal attrib- Privacy HJ and HT To avoid these sanctions, homo- [2005] INLR 68 (N.Z.). The analytical , at para [34]. . 139 A. 140 Refugee Appeal No. 74665/ 74665/03 74665/03 . . 137 HJ and HT opened for signature INTERNATIONAL LAW text accompanying notes 30–32. to be abso- It is important . at para [34]. Id Refugee Appeal No See supra Refugee Appeal No One approach, attributed to the decision of Rodger attributed to the decision of One approach, 140. 139. 137. 138. Secretary of State for the Home Department Court’s reference to the RSAA ap- uted particular weight to the Supreme proach. TM (Zim.) v. Sec’y of State for the Home Dep’t, [2010] EWCA (Civ) 916, [39] (appeal taken from Asylum & Immigr. Trib.) (U.K.). [113]–[114],1 A.C. at 644 (Lord Rodger), 657 (Lord Dyson). [2011] In the first English Court of Appeal case to consider strength of the New Zealand approach was expressly endorsed by the U.K. strength of the New Zealand approach Supreme Court in to freedom of expression. self-oppression Where the applicant is a child, in the Convention on the may infringe the child-specific rights contained Rights of the Child, applicant to establish a secondary lutely clear that this is not requiring the form of persecutory harm.state can and The question is simply whether the cause. will provide protection against the precipitating 352 re- the substantive yielded have could framework accepted this doctrinally suspect without the by the courts sult embraced of the risk of a form based on of refugee status recognition plausible.was not, in fact, harm that (exogenous) The first of behavior harm as the modification is to define the approach life. to a private denial of the right to the itself, amounting as the psychologi- to define the harm approach is The second by the modification of behavior.cal harm occasioned In both state protec- that there be a failure of cases, the requirement the state to established by the failure of tion will be readily cause of response to the precipitating provide a meaningful the serious harm. \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 38 8-MAR-12 9:05 Haines QC of the New Zealand Refugee Status Appeals Au- New Zealand Refugee Status Haines QC of the thority (“RSAA”) in sexuality must be “carefully hidden under the camouflage of sexuality must be “carefully hidden feigned heterosexuality.” risk to the right to privacy as the relevant harm.risk to the right to privacy as the consider- In Iran who feared that he ing the case of a young man from of his sexual orientation, the would be persecuted on account is illegal in Iran, and con- RSAA accepted that homosexuality severity (ranging from the tinues to be punished with extreme death penalty to flogging). 31420-nyi_44-2 Sheet No. 23 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 23 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 24 Side A 03/19/2012 11:22:47 R 143 141 353 , OVE- , U.N. C (2d ed. 2005). OWAK N Opining that this Toonen v. Australia 146 ANFRED the New Zealand Au- and, most importantly, , at paras [97]–[99], [103], OMMENTARY M —the Zealand tribu- New 145 144 : CCPR C 74665/03 . , at para [126]. In support of this finding, HJ and HT IGHTS R and the Authority relied on the right to pri- the Authority relied 74665/03 . QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER note 143, ¶ 8.2. 142 OLITICAL S395 P supra IVIL AND see also Refugee Appeal No NANT ON . . at para [114]. . C Id Refugee Appeal No Id Id Drawing on its long-standing understanding of “the pre- understanding of Drawing on its long-standing Rather than artificially deeming risk of either the death of either risk deeming artificially than Rather While certainly plausible, it is of some concern that the While certainly plausible, it is of 145. 146. 141. 142. 143. U.N. Doc. CCPR/C/ Toonen v. Australia, Commc’n No. 488/1992, 144. Toonen, 50/D/488/1992 (Apr. 4, 1994) (Human Rights Comm.) [hereinafter 50/D/488/1992 (Apr. 4, 1994) (Human Toonen]; This submission to enforced concealment—notThis submission remote the flogging—wasrisk of death or as identified by the Authority fear. to which there was a well-founded the harm in relation or systemic vi- persecuted’ as the sustained dicament of ‘being a failure of human rights demonstrative of olation of basic state protection,” determined both that “it is the UN Human Rights Committee sexual activity in private is undisputed that adult consensual covered by the concept of ‘privacy’” 2012] of simply because fear “well-founded” flogging to be penalty or be discreet—the applicant to motivated the the same ap- in proach taken \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 39 8-MAR-12 9:05 [105], [112], [123] (evaluating Toonen’s methodology). [105], [112], [123] (evaluating Toonen’s the Authority relied heavily on the analysis of vacy set by article 17 of the Civil and Political Covenant as its vacy set by article 17 of the Civil benchmark. Noting that, in the case of risk infringes a core norm of international human rights law, risk infringes a core norm of international was thus a genuine risk of the Authority determined that there “being persecuted.” interpretation of article 17 Authority’s approach relies on an that “the continued existence” of even an unenforced anti-sod- that “the continued existence” of omy law infringes the privacy right, the applicant to Iran would thority determined that returning life.” deny him “a meaningful ‘private’ nal instead examined the nature of the risk that would actually nature of the risk examined the nal instead to Iran. to be returned the applicant were accrue if While con- penalty and flogging that the death would mean cealment not “well- possibilities (and therefore were only remote would this was so only because the applicant founded” risks), engage in a defensive act of “self-denial.” nearly certainly 31420-nyi_44-2 Sheet No. 24 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 24 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 24 Side B 03/19/2012 11:22:47 pre- with opened for [Vol. 44:315 Nov. 4, 1950, Toonen interference may well have been opened for signature It follows therefore that a AND POLITICS Toonen 149 Given that framing, it is unclear that framing, it is Given that 147 INTERNATIONAL LAW there are, of course, striking textual differences there are, of course, amounts to “subject[ion] . . . to interference” as . . . to interference” amounts to “subject[ion] 148 Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (emphasis Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter Second, because the structure of article 17 prohibits only Second, because the structure of 148.Convention for the Protection of The cognate right under the 147. Political Rights art. 17, International Covenant on Civil and 149. 558/1993, ¶ 11.4, U.N. Doc. Canepa v. Canada, Commc’n No. Human Rights and Fundamental Freedoms, Human Rights and Fundamental Freedoms, signature added). 354 Rights Political Civil and on Covenant International of the with the provision’s to reconcile that is difficult (ICCPR) language.rather conservative a not enshrine Article 17 does not is simply a right sense, but privacy in any absolute right to or unlawful subjected to arbitrary to “be privacy . . . .” [one’s] \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 40 8-MAR-12 9:05 the mere existence of unenforced anti-gay laws necessarily and of unenforced anti-gay laws necessarily the mere existence automatically the Authority assumed. approach adopted by the While the juris- finds support in the European New Zealand Authority prudence, CCPR/C/59/D/558/1/1993 (Apr. 3, 1997) (Human Rights Comm.); U.N. CCPR/C/59/D/558/1/1993 (Apr. 3, 1997) Human Rights Comm., General Comment No. 16: Article 17 (Right to Pri- vacy): The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, ¶ 4, U.N. Doc. CCPR/C/21/ Rev.1 (Apr. 8, 1988). 213 U.N.T.S. 221 [hereinafter ECHR] has been interpreted to comprise “the 213 U.N.T.S. 221 [hereinafter ECHR] has with other human beings, es- right to establish and to develop relationships and fulfillment of one’s pecially in the emotional field, for the development own personality.” Dec. & X v. Iceland, App. No. 6825/75, 5 Eur. Comm’n Rep. 86, 87 (1976). between article 8 of the European Convention on Human 8 of the European Convention between article Rights (ECHR)—which to “re- provides an affirmative, right life—andspect for” private to non- the more constrained right by article 17.interference codified Moreover, the has never the New Zealand decision relies cedent upon which the decision in the twenty years since been expressly affirmed in a general comment. was issued, much less enshrined the Human Rights forms of interference that are “arbitrary,” the acceptability of interfer- Committee has determined that of whether it is “reasonable ence is to be assessed on the basis in the particular circumstances.” breach of article 17 is more readily established in relation to a breach of article 17 is more readily of respect for auton- state where there is a general expectation omy and privacy. context-sensitive overlay built Because of this into the ICCPR, the decision in 31420-nyi_44-2 Sheet No. 24 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 24 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 25 Side A 03/19/2012 11:22:47 . , at 355 has left 74665/03 . Toonen . at para [112] approach to pri- Toonen’s see also id —and the therefore, .; Id Refugee Appeal No Toonen If so, 150 392, 407 (1994). The U.N. Human Rights Com- . EV QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Gay Rights Under the ICCPR Gay Rights Under the – on Toonen v Commentary . L. R AS 151 note 143, ¶ 8.6. The relevance of the particular circum- . T NIV U supra Finally, and more generally, there is surely a conceptual Finally, and more The Committee cannot accept either that for the purposes of arti- The Committee cannot accept either that exclusively a matter of do- cle 17 of the Covenant, moral issues are door to withdrawing from mestic concern, as this would open the number of statutes in- the Committee’s scrutiny a potentially large terfering with privacy. of It further notes that with the exception have been repealed Tasmania, all laws criminalizing homosexuality it is apparent that throughout Australia and that, even in Tasmania, 122 and 123 should there is no consensus as to whether Sections not also be repealed. are Considering further that these provisions they are not deemed es- not currently enforced, which implies that Tasmania, the Committee sential to the protection of morals in the ‘reasonableness’ test concludes that the provisions do not meet they arbitrarily interfere in the circumstances of the case, and that paragraph 1. with Mr. Toonen’s right under article 17, 151. The New Zealand decision itself questions 150. Sarah Joseph, open the argument that in a similar case involving the domestic law of a Muslim state that applies Islamic law, consideration must be given to the public sensibility and morality obtained within Muslim societies, conceding to that state a margin of appreciation . . . .”). (“[T]he approach taken by the Human Rights Committee in (“[T]he approach taken by the Human para [103]. more is re- Rather, the Authority considered that something be “accompanied by penal sanc- quired, namely that the anti-gay legislation tions of severity which are in fact enforced.” mittee in Toonen explained its reasoning thus: mittee in Toonen explained Toonen, the ICCPR was stressed in Gonzalez stances to a consideration of article 17 of ¶ 14.3, U.N. Doc. CCPR/ v. Republic of Guyana, Commc’n No. 1246/2004, Rights Comm.). C/98/D/1246/2004 (May 21, 2010) (Human vacy upon which it otherwise relies, determining that “[i]t cannot be said vacy upon which it otherwise relies, determining acts is on its own sufficient to that criminalization of consensual homosexual establish a situation of ‘being persecuted.’ ” 2012] of ho- tolerance Australian of general “evidence by influenced lifestyle . . . .” mosexual as the on denial of a right to “privacy” incongruity in relying faced by gay to recognize the serious harm means by which order to be forced to accept repression in applicants who are safe. Far too often, “privacy”—in absolute, unforgiving a very sense—is to avoid. what these refugee claimants seek precisely \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 41 8-MAR-12 9:05 article 17 argument dependent on it, relied on by the New on by the on it, relied argument dependent article 17 Authority—mayZealand basis upon which an insecure provide which gay refugee sorts of states from return to the to find that perse- risk of “being finding a typically flee justifies claimants cuted” there. Australia, 31420-nyi_44-2 Sheet No. 25 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 25 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 25 Side B 03/19/2012 11:22:47 [Vol. 44:315 152 , at paras [94]–[103]. and article 26 of the 154 74665/03 . AND POLITICS Indeed, the robust duty of 153 450, 464 (1993). Refugee Appeal No . L.J. Sexual Orientation and the Constitution: A Test Case for Sexual Orientation and the Constitution: A FR S. A INTERNATIONAL LAW , 110 but that its implications cannot be countenanced but that its implications cannot Rather than trying to shoehorn a right to be “out” or “visi- Rather than trying to shoehorn a [T]he privacy argument has detrimental effects on has detrimental effects [T]he privacy argument a society which is truly non-stigma- the search for orientation is concerned.tizing as far as sexual On dis- privacy argument suggests that the one hand, the to gays and lesbians is confined crimination against between adults in the bedroom. prohibiting conduct not so.This is manifestly hand, the pri- On the other the idea that ho- vacy argument may subtly reinforce improper: that it is mosexual intimacy is shameful or to the bedroom—tolerable so long as it is confined outside. Privacy as a rationale for constitutional pro- far, and has ap- tection therefore goes insufficiently own terms. preciable drawbacks even on its 154. “All are equal before the law and are entitled without any discrimina- 153. and equality norms was Indeed, the scope of the non-discrimination 152. Edwin Cameron, tion to equal protection of the law.” Universal Declaration of Human Rights, G.A. Res 217 (III) A, art. 7, U.N. Doc. A/RES/217(III) (Dec. 10, 1948). considered by the RSAA in Human Rights Indeed, it could reasonably be argued that the concept of pri- Indeed, it could reasonably be argued public and private spheres, vacy, and the delineation between that courts have now in part fueled the “duty of discretion” thankfully dismantled. it would in our view be bly different” into a right to “privacy,” of equality law in or- more prudent to build on the structure der to establish such a right. 356 to be to be able much like very contrary, to the would, They severe consequences without fear of are openly and who they about entirely private to remain follow from failure that would orientation.their sexual craving freedom a gay person When is not to be safe, he in order opts for concealment nonetheless of “privacy.” faced with a loss sense in any meaningful As Ed- African Constitu- of the South now a Justice win Cameroon, run via pri- argued, seeking to do an end tional Court, once vacy—in context or otherwise—might the refugee ultimately than good: do more damage \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 42 8-MAR-12 9:05 “equal protection of the law” enshrined in both article 7 of the “equal protection of the law” enshrined Universal Declaration of Human Rights 31420-nyi_44-2 Sheet No. 25 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 25 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 26 Side A 03/19/2012 11:22:47 R R R 357 supra See gener- article opened for 156 note 146, at 604–05. supra , .181 (2010) (promoting article 26 of the OWAK EV N . L. R Although the power of article 26 is pres- Although the power QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER NIV there is nonetheless scope for the “equal there is nonetheless 157 . U Treating Like Alike: The Principle of Non-Discrimination as a Treating Like Alike: The Principle of Non-Discrimination 158 ELB note 147, art. 26. M affords a powerful platform from which to derive which to from platform a powerful affords , 34 Dec. 16, 1966, 993 U.N.T.S. 3, and article 14 of the ECHR, Dec. 16, 1966, 993 U.N.T.S. 3, and article 155 supra discrimination to the equal protection of the law. In this respect, discrimination to the equal protection and guarantee to all per- the law shall prohibit any discrimination discrimination on any sons equal and effective protection against religion, political or ground such as race, colour, sex, language, property, birth or other other opinion, national or social origin, status. Jason Pobjoy, 158. a violation of article 26 if it Differential treatment will not constitute 156.contained in article 2(2) of the The non-discrimination provisions 157. “The [ICCPR] contains no Nowak provides the following example: 155.and are entitled without any All persons are equal before the law might be relied on to challenge the legitimacy of any law sanc- to challenge the legitimacy of might be relied on ICCPR as a valuable tool in protecting the rights of highly vulnerable indi- ICCPR as a valuable tool in protecting viduals). to be based on reasonable and pursues a legitimate aim and is determined Rights Committee has interpreted objective criteria. Specifically, the Human article 26 of the ICCPR to be subject to the proviso that “not every differenti- ation of treatment will constitute discrimination, if the criteria for such dif- ferentiation are reasonable and objective and if the aim is to achieve a pur- pose which is legitimate under the Covenant.” U.N. Human Rights International Covenant on Economic, Social, and Cultural Rights, International Covenant on Economic, Social, signature bench. But when a State party provision granting a right to sit on a park sitting on public park benches, enacts a law forbidding Jews or blacks from then this law violates Art. 26.” ICCPR, Tool to Mandate the Equal Protection of Refugee and Beneficiaries of Complementary Tool to Mandate the Equal Protection of Refugee Protection ally 2012] ICCPR \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 43 8-MAR-12 9:05 such an understanding.such an accessory non-dis- contrast to the In the ICCPR, article 2(1) of provision in crimination ently curtailed by the propensity of the Human Rights Com- the propensity of the Human ently curtailed by in de- state perceptions of “reasonableness” mittee to defer to amounts to a given form of differentiation termining whether discrimination, note 148, are similar to article 2(1) of the ICCPR. note 148, are similar to article 2(1) of 26 provides an autonomous, non-derivate guarantee of “equal- non-derivate an autonomous, 26 provides the law.”ity before The provision—which a guaran- provides law— regulated by to any matter in relation tee of equality treatment of sexual minorities.tioning the differential It has equal pro- that the provision requires been clearly established in of rights and freedoms enumerated tection in the exercise indeed, equal international instruments, and, any regional or however es- exercise of rights and freedoms protection in the tablished by law. 31420-nyi_44-2 Sheet No. 26 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 26 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 26 Side B 03/19/2012 11:22:47 R . EFU- ELB M R HJ and Compila- , 34 [Vol. 44:315 in Jason Pobjoy, IGHTS OF R HE T , See generally ATHAWAY AND POLITICS C. H note 68, at 146. Moreover, as a matter of principle Moreover, as a matter 129–47 (2005). AMES J AW Psychological Harm 159 L , supra B. INTERNATIONAL LAW note 138. NTERNATIONAL I 181 (2010). For a discussion on this deferential practice of the . GEES EV See supra NDER In sum, while the New Zealand Authority rightly recog- Zealand Authority while the New In sum, In these circumstances, we believe that there is clear bene- In these circumstances, we believe constitutes cognizable The view that psychological harm U declined to follow it. declined to follow 159. U. L. R tion of General Comments Human Rights Committee, see Treating Like Alike: The Principle of Non-Discrimination as a Tool to Mandate the Treating Like Alike: The Principle of Non-Discrimination of Complementary Protection Equal Protection of Refugee and Beneficiaries Comm., General Comment No. 18: Non-Discrimination, ¶ 13, Comm., General Comment No. 18: Non-Discrimination, 358 in sexual role robust play a more duty to the law” of protection of an understanding to further cases, including orientation right to be openly an affirmative law that embraces equality different. and standard the “being persecuted” link between nized the right to pri- rights law, its reliance on the international human link hangs by a thin thread.vacy to forge that It is worthy of adopted it praised the logic of the approach note that, even as in Authority, the Supreme Court by the New Zealand HT \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 44 8-MAR-12 9:05 there is something incongruous—andthere is something in the long potentially, run, detrimental—about to pro- relying on a right to privacy openly gay gay claimants seeking to live an tect the rights of life. of the law” might And while the duty of “equal protection an affirmative be understood as mandating one day come to consensus there is not yet a normative “right to be different,” in favor of such a meaning. to conceptualizing the fit in exploring an alternative approach of enforced concealment. relevant persecutory harm in cases occasioned by the modifi- Focusing on the psychological harm in the relatively automatic, cation of behavior will not result reliance on privacy al- class-based findings that New Zealand’s lows. means In our view, it nonetheless affords a more secure harm” limb of the “being by which to establish the “serious those gay applicants most persecuted” requirement for at least of their sexual identity. severely impacted by concealment with international human persecutory harm sits comfortably the domestic jurisprudence rights law jurisprudence, and with 31420-nyi_44-2 Sheet No. 26 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 26 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 27 Side A 03/19/2012 11:22:47 R 359 , docu- observed : . HJ (Iran) v. 161 Win that “it is the threat of HJ and HT ), [2010] UKSC 31, [116], S395 The Diary of a Young Girl The Diary of a Young HJ and HT 162 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER note 130, at 153. 160 supra , Appellant S395/2002 v Minister for Immigration & Multicultural Af- ) (2003) 216 CLR 473, 490 (Austl.).to This passage is referred . at 142. RANK F Id S395 To illustrate this point, it may be useful to return to the it may be useful this point, To illustrate The atmosphere is stifling, sluggish, leaden.The atmosphere Outside, a single bird, and a deathly, oppres- you don’t hear as over the house and clings to me sive silence hangs to drag me into the deepest regions if it were going of the underworld. At times like these, Father, to me in the least.Mother and Margot don’t matter I up and down the wander from room to room, climb wings have been stairs and feel like a songbird whose itself against the ripped off and who keeps hurling bars of its dark cage. “Let me out, where there’s within me cries.fresh air and laughter!” a voice I but lie down on don’t even bother to reply any more, the divan. Sleep makes the silence and the terrible the time, since it’s fear go by more quickly, helps pass impossible to kill it. ( 160. in Justices McHugh and Kirby observed 162. 161. menting Anne’s “depths of despair,” makes clear menting Anne’s Considering this scenario, Justice Madgwick in Considering this scenario, Justice satisfied that the possibility of that “[even] if the Tribunal were she would be sent back to her being discovered was remote, live in the attic. of the It is inconceivable that the framers be imputed to have, such a Convention did have, or should 2012] world. law common in the of courts intu- it is surely Moreover, that self-repres- implications” that the “menacing itively right the concern psyche are legitimately likely have on the sion will law. of refugee of Anne Frank. laden example somewhat The most obvious hands of the of “exogenous” harm at the risk here is the threat and the to the concentration camp, Nazi Gestapo: deportation confine- it is equally clear that indefinite gas chamber. But “endoge- will itself likely give rise to serious ment in the attic passage from nous” harm, as a \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 45 8-MAR-12 9:05 serious harm with its menacing implications that constitutes the persecutory serious harm with its menacing implications conduct.” fairs with approval in the judgment of Sir John Dyson in with approval in the judgment of Sir John Sec’y of State for the Home Dep’t ( [2011] 1 A.C. 596, 658 (appeal taken from Eng. & Wales C.A.). 31420-nyi_44-2 Sheet No. 27 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 27 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 27 Side B 03/19/2012 11:22:47 , 165 , [2009] ), [2009] HJ and HT [Vol. 44:315 the appli- 164 , [2001] FCA 132, The expert con- MK Lesbians the U.K. tribunal 168 167 , RG (Colombia) AND POLITICS Indeed, assuming the risk of cap- risk of the assuming Indeed, harm, namely the psychological harm, MK (Lesbians) 163 Secretary of State for the Home Department . endogenous INTERNATIONAL LAW HJ (Iran) v Similarly, in 166 . [17]. . . [67]. Win v Minister for Immigration & Multicultural Affairs Win v Minister for Immigration & Multicultural Id Id Id Concealing an aspect of one’s identity, including desisting of one’s identity, including Concealing an aspect what Mr Raza Husain has described as the Anne Frank principle . . . what Mr Raza Husain has described as the is not disputed in this appeal. to a It would have be no defence fear of persecution in claim that Anne Frank faced well-founded attic.1942 to say that she was safe in a comfortable left the Had she be expected to enjoy, attic, a human activity she could reasonably persecution.her Jewish identity would have led to her sta- Refugee to conceal aspects of tus cannot be denied by expecting a person should be allowed to ex- identity or suppress behaviour the person press. 163. 165. 166. 167. MK v. Sec’y of State for the Home Dep’t ( 164. Home Dep’t, [2006] EWCA RG (Colom.) v. Sec’y of State for the 168. . For discussion of the “Anne Frank principle” on appeal, see [18] (Austl.). In A psychiatric expert confirmed that the suppression of sexual confirmed that the suppression A psychiatric expert traumatic applicant would be “likely to have identity for the effects.” 360 in contemplation.” result \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 46 8-MAR-12 9:05 (Civ) 57 (appeal taken from Asylum & Immigr. Trib.) (U.K.). (Civ) 57 (appeal taken from Asylum & EWCA (Civ) 172, [10], [2009] Imm. A.R. 600 (appeal taken from Asylum & EWCA (Civ) 172, [10], [2009] Imm. A.R. the Court of Appeal to what Immigr. Trib.) (U.K.), counsel for HJ referred he labeled the “Anne Frank principle.” that Lord Justice Pill responded Id [2010] UKSC 31, [96], [106], [117]–[118], [2011] 1 A.C. at 653 (Lord Dyson). Walker), 655 (Lord Collins), 658 (Lord ture by the Nazis was remote (though history provides clear history provides (though the Nazis was remote ture by with indefinite the risk associated of the contrary) evidence was clearly established. in the attic confinement Even if Anne to of deportation well-founded fear not have a Frank did well- still have a chamber, she would and the gas prison camps fear of founded identity meant living as some- sidered that “suppressing sexual in an anxiety increase, one whom you were not, which resulted cant testified that, for him, self-repression “would be to die.” for him, self-repression “would cant testified that, heard evidence from a psychiatrist that a lesbian’s attempt to from a psychiatrist that a lesbian’s heard evidence potent factor identity would be “a very suppress her sexual contributing further to her deterioration.” harm occasioned by the permanent state of confinement. harm occasioned identity, may sufficiently connected to that from an activity harm.give rise to psychological In UKAIT 0036. 31420-nyi_44-2 Sheet No. 27 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 27 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 28 Side A 03/19/2012 11:22:47 R R R O- 361 N URIS- supra J PPLICA- OLITICAL A opened for P See generally 172 UDICIAL ), [2011] UKUT J IVIL AND (2d ed., 2004); HE NTERNATIONAL C I T . [120]–[123]. It was , Id . [20]. The tribunal (ap- Id SW Lesbians note 148, and article 5 of the 218–223 OVENANT ON article 7 of the ICCPR, one article 7 of the EGIONAL AND C supra AYAWICKRAMA More recently, in the case of in the recently, More , R J 171 169 IHAL OMMENTARY N C ATIONAL : N AND NTERNATIONAL , AW I L QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER HE T (2002). ., ATERIALS IGHTS the U.K. tribunal heard evidence that the appli- evidence that the tribunal heard the U.K. note 18. R , M note 146, at 157–192; UMAN ASES 296–352 WAK PRUDENCE Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT], provides that Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter . [68]. H OSEPH ET AL See supra Id : C J The range of actions encompassed by the notion of cruel, encompassed by the notion The range of actions Traditional refugee law doctrine allows such endogenous doctrine allows such refugee law Traditional 170 supra , 171. 172. or to cruel, inhuman or degrad- “No one shall be subjected to torture 169. 170. ( SW v. Sec’y of State for the Home Dep’t IGHTS ARAH therefore unnecessary for the tribunal to consider whether the clinical de- therefore unnecessary for the tribunal harm. pression might itself amount to serious propriately) accepted the applicant’s testimony that she would not conceal propriately) accepted the applicant’s testimony held that she had a well-founded her sexuality if returned to Jamaica and decision. fear of physical harm as a result of that ing treatment or punishment. with- In particular, no one shall be subjected experimentation.” ICCPR, out his free consent to medical or scientific note 147, art. 7. Article 3 of the ECHR, S R TION OF American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, American Convention on Human Rights, contain similar provisions. Torture and Article 16 of the Convention Against or Punishment, Other Cruel, Inhuman or Degrading Treatment signature in any territory under its juris- each State Party “shall undertake to prevent or degrading treatment or punish- diction any other acts of cruel, inhuman as defined in article 1.” ment which do not amount to torture inhuman or degrading treatment has been said to be as “ex- treatment has been said inhuman or degrading 2012] disassociation.” and paranoia of whether into account in the assessment harm to be taken “being persecuted.”there is a risk of Drawing on the acknowl- core norms of serious harm and threats to edged link between rights law, international human \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 47 8-MAR-12 9:05 00251 (IAC), [33]. “She would In cross-examination the applicant stated: to avoid harm, wherever she not contemplate changing her open lesbianism lived. She was ‘out’ now: being discreet had made her ill with depression again.” and she had no intention of risking that of the few absolute rights in that treaty, provides a critical rights in that treaty, provides of the few absolute benchmark. torture, but also “cruel, in- It prohibits not only treatment or punishment.” human or degrading SW (Lesbians) SW (Lesbians) “the in Jamaica, and stress” “clinical depression cant suffered doc- to her male unable to disclose which she was reason for tor.” 31420-nyi_44-2 Sheet No. 28 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 28 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 28 Side B 03/19/2012 11:22:47 R R R and supra psycho- note 68, at [Vol. 44:315 and NTERNATIONAL I supra 176 ., Osmani v. Repub- g NDER . e , with formal recog- formal with U , the Committee de- , the Committee See Schedko v. Belarus 173 175 RISONERS AND POLITICS P note 172, at 218–23;Hathaway & Hicks, The Committee has also recognized REATMENT OF T Quinteros v. Uruguay 177 . supra HE Compilation of General Comments, , , T in INTERNATIONAL LAW ODLEY R OSEPH ET AL J This proposition finds support in the jurisprudence of in the jurisprudence finds support This proposition IGEL N See 174 Similar conclusions were reached in Similar conclusions were reached For example, in For example, in [There was] anguish and stress caused to the mother [There was] anguish con- of her daughter and by the by the disappearance concerning her fate and wherea- tinuing uncertainty bouts. The [mother] has the right to know what has happened to her daughter. In these respects, she too Covenant suffered is a victim of the violation of the article 7. by her daughter in particular, of 140 (2009). 174. Comment No 20: Article 7 U.N. Human Rights Comm., General 173. 175. 177. 886/1999, ¶ 10.2 U.N. Doc. In Schedko v. Belarus, Commc’n No. 176. No. 107/1981, ¶ 14,U.N. Quinteros Almaeida v. Uruguay, Commc’n AW (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment (Prohibition of Torture, or Other Cruel, or Punishment), ¶ 5, Staselovich v. Belarus L 129. note 102, at 556–60.The jurisprudence of the U.N. Committee Against Tor- ture provides further support for this proposition. 362 of perpetrators,” ingenuity as the tensive the Committee recognized the CCPR/C/77/D/886/1999 (Apr. 3, 2003), to the author [the mother of a “continued anguish and mental stress caused condemned prisoner] by the persisting uncertainty of the circumstances that led to his execution, as well as the location of his gravesite.” A similar result was reached in Staselovich v. Belarus, Commc’n No. 887/1999, ¶ 9.2, U.N. Doc. CCPR/C/77/D/887/1999 (Apr. 28, 2003). \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 48 8-MAR-12 9:05 1983). Doc. CCPR/C/19/D/107/1981 (July 21, lic of Serbia, Commc’n No. 261/2005, ¶ 10.3, U.N. Doc. CAT/C/42/D/ lic of Serbia, Commc’n No. 261/2005, physical and mental suffering in 261/2005 (May 25, 2009) (considering both the CAT). evaluating whether the state party violated the Committee, which makes clear that cruel and inhuman which makes clear that cruel the Committee, of psychological harm, irrespective treatment encompasses injury was sustained. whether physical termined that the mental anguish caused to a mother by the mental anguish caused to a mother termined that the to a vio- of her daughter amounted mysterious disappearance 7: lation of article nition by UN supervisory bodies that both physical bodies that both UN supervisory nition by are relevant.logical harm the No. 20 of General Comment that the proscrip- codifies the view Rights Committee Human that cause physical “not only to acts 7 relates tion in article vic- suffering to the cause mental also to acts that pain, but tim.” 31420-nyi_44-2 Sheet No. 28 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 28 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 29 Side A 03/19/2012 11:22:47 R R 363 N’goya v. N’goya of interna- standards note 102, at 545–46. the Committee consid- the Committee , the Human Rights Com- 180 supra 181 While the Finland note 181, ¶ 9.2. . 182 Australia . Vuolanne v. Finland, Commc’n No. 265/1987, supra C v Hathaway & Hicks, QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER see also Vuolanne v See generally Similarly, in The European Court of Human Rights, interpreting The European Court of Human . ¶¶ 8.4–8.5; . ¶ 5.5. the Committee found, in circumstances where a state in circumstances found, the Committee 179 Id Id 183 178 Critically, in considering whether the substantive harm whether the substantive Critically, in considering 182. This doctrine is well-established in international human rights juris- 181. 179. 180. U.N. Doc. CCPR/C/76/D/ C v. Australia, Commc’n No. 900/1999, 183. Vuolanne v. Finland, 178. of Congo), Commc’n No. 542/ N’goya v Zaire (Democratic Republic prudence. ¶ 9.2, U.N. Doc. CCPR/C/35/D/265/1987 (May 2, 1989) (recognizing that ¶ 9.2, U.N. Doc. CCPR/C/35/D/265/1987 non-physical harm may violate article 7). mittee expressly affirmed that the meaning of article 7 de- mittee expressly affirmed that of the case, such as the dura- pends on “all the circumstances its physical or mental tion and manner of the treatment, state of health of the vic- effects as well as the sex, age and tim.” 900/1999 (Nov. 13, 2002). 1993, U.N. Doc. CCPR/C/56/D/S42/1993 (Apr. 16, 1996). 1993, U.N. Doc. CCPR/C/56/D/S42/1993 feared amounts to cruel, inhuman or degrading treatment, it to cruel, inhuman or degrading feared amounts the circumstances and susceptibilities is necessary to consider applicant. of the particular 2012] In by incarceration. harm occasioned mental the Zaire \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 49 8-MAR-12 9:05 tional human rights law are, of course, universal, this does not law are, of course, universal, tional human rights to the application is in any sense insensitive mean that their persons.specific vulnerabilities of particular contrary, To the or degrading treatment fo- the prohibition of cruel, inhuman experienced by each individ- cuses on the nature of the harm not just to what harm is ual, requiring attention to be paid harm would impact the appli- threatened, but also to how that cant himself. In had abducted someone and refused to allow any outside con- any outside and refused to allow someone had abducted prevention of contact victim and the removal of the tact, “the and constitute cruel the outside world family and with with his Cove- 7 of the violation of article treatment, in inhuman nant.” the regional cognate right, has similarly recognized the need the regional cognate right, has ered that a violation of article 7 had occurred where immigra- of article 7 had occurred where ered that a violation policy Australia’s mandatory detention tion detention (under in the devel- “asylum-seekers”) has resulted for unauthorized mental illness. opment of a serious 31420-nyi_44-2 Sheet No. 29 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 29 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 29 Side B 03/19/2012 11:22:47 R [Vol. 44:315 Special Adjudicator . ., EU Qualification Liu v. Ashcroft, 380 ), [1998] Imm. A.R. g . v e . , R See see also Sasitharan physical harm is not the limit of R v. Immigration Appeal Tribu- AND POLITICS See 184 This issue has been helpfully elabo- This issue has physical harm. 185 INTERNATIONAL LAW ), [1995] EWCA (Civ) 16, [1996] Imm. A.R. 97, (appeal ), [1995] EWCA (Civ) 16, [1996] Imm. beyond note 33, art. 10(2) (“In assessing an applicant’s fear of being note 33, art. 10(2) (“In assessing an applicant’s supra ), [2005] 1 W.L.R. 1063, 1072, [2005] UKHL 19, [34] (appeal taken ), [2005] 1 W.L.R. 1063, 1072, [2005] UKHL This insight from international human rights law aligns human from international This insight cases involves applicants not themselves The first group of Ravichandran 185. Dep’t, [2001] EWCA (Civ) Katrinak v. Sec’y of State for the Home 184.Ct. H.R.25, 109 (1978). Ireland v. United Kingdom, 2 Eur. This ap- Hoxha nal ( taken from Immigr. Appeal Trib.) (U.K.) (“I cannot think that the loss of taken from Immigr. Appeal Trib.) (U.K.) freedom involved would properly be held insufficient to constitute persecu- tion”); R v. Sec’y of State for the Home Dep’t ( 487 (appeal taken from Immigr. Appeal Trib.) (U.K.) (“[T]he Special Adju- dicator has taken cognizance of the fact that 832, [21] (Shiemann L.J.) (appeal taken from Immigr. Appeal Trib.) (U.K.). 832, [21] (Shiemann L.J.) (appeal taken Kingdom context that “being per- There is general acceptance in the United secuted” extends ( of the United Kingdom House of from Eng. & Wales C.A.), Baroness Hale relevant in determining whether a Lords considered that gender may be to a risk or being persecuted. particular action does, or does not, amount F.3d 307, 314 (7th Cir. 2004) (acknowledging that the fear threshold for F.3d 307, 314 (7th Cir. 2004) (acknowledging adults).persecution is lower in children than in In Directive, proach has also been imported into refugee law. proach has also been imported into refugee persecuted or exposed to other serious and unjustified harm, Member States persecuted or exposed to other serious and position and personal circum- shall take into account . . . the individual such as background, gender, age, stances of the applicant, including factors the seriousness of persecution or health and disabilities so as to assess for the Ninth Circuit has also harm.”). The United States Court of Appeals adults that might be considered recognized that “[H]armful actions against the case of an adult may constitute as mere harassment or discrimination in persecution when applied to children. F.3d 667, Mansour v. Ashcroft, 390 679–80 (Pregerson J., dissenting); (9th Cir. 2004) 364 person of the condition health sex, and “the age, to consider to [the treatment].” exposed that law decisions of refugee a growing number neatly with harm as persecutory. endogenous recognize The jurispru- that we are advanc- the proposition that dence demonstrates in a range there is already emerging support ing is not novel; is appropri- view that psychological harm of contexts for the Refugee Con- to be persecutory under the ately understood vention. to someone harm, but who are related at risk of exogenous serious harm.who is clearly facing As the English Court of husband or a “[i]t is possible to persecute a Appeal has held, of his by what you do to other members member of a family immediate family.” \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 50 8-MAR-12 9:05 rated, particularly in decisions from the United States. in decisions from the United rated, particularly 31420-nyi_44-2 Sheet No. 29 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 29 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 30 Side A 03/19/2012 11:22:47 365 [2005] that could plainly be taken SCAT v Minister for Immigration , [2003] FCA 80, to support the SCAT [2003] FCA 80, [23] (Madgwick & Conti the mother of a girl who faced the who faced of a girl mother the to the appellant himself. To harm a child 186 , Abay QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER see also SBTF v Minister for Immigration & Citizenship NBLB v Minister for Immigration & Multicultural Affairs NBLB v Minister for Immigration & Multicultural , but that there is an open ended category of forms of conduct , but that there is an open ended category . [80]–[82]; Id In the case of case of In the [There is] . . . a governing principle in favor of refu- governing principle in favor of [There is] . . . a is where a parent and protector gee status in cases be- her child to the clear risk of faced with exposing is a her will to a practice that ing subjected against torture causing grave and perma- form of physical nent harm.that Abay herself Given the evidence . . . at a young age; that Abay’s underwent the procedure attempted to mutilate Abay’s mother has already who still faced that prospect upon older daughters, over- Abay would not be able to their marriage; that husbands or in-law’s ride any of her daughters’ future of Ethiopia does wishes; and that the government laws intended to not, as a practical matter, enforce that Abay’s curb traditional practices, we conclude the lion’s den of fe- fear of taking her daughter into and being forced male genital mutilation in Ethiopia of her daughter is to witness the pain and suffering 186. Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004). persecution to be evaluated in the light of the capable of amounting to persecution, added).Convention from case to case.”) (emphasis seen a similar We have in acceptance in the Australian Federal Court & Multicultural & Indigenous Affairs appellant’s family members, rather JJ) (“Insofar as psychological harm to the in issue, than directly to himself, might have been into account as an element of harm (emphasis added).may also be to harm its custodial parents.”) In the more recent case, 2012] was more equivocal. In that case the FCA 1051, the Australian Federal Court if returned to South Korea—specif-applicant stated that he would “go crazy” to his family would constitute the ically, the applicant claimed that harm he would be personally affected by persecution of the applicant, because that punishment. harm The Federal Court found that fear of psychological that could constitute persecu- was not well-founded, irrespective of whether tion. [2007] FCA 1816, [48] (Austl.) (citing appellant’s contention that psychological harm may be serious harm). \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 51 8-MAR-12 9:05 risk of female genital mutilation argued that she, the mother, argued genital mutilation risk of female of on the grounds for refugee status independently qualified try to face if forced to that she would trauma the psychological Ethio- mutilation in female genital daughter from shield her pia. accepted that for the Sixth Circuit of Appeals The Court argument: 31420-nyi_44-2 Sheet No. 30 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 30 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 30 Side B 03/19/2012 11:22:47 . . S . U . . Sul- A-K-, 24 I. of her : “[T]he [Vol. 44:315 J-S-, 24 I. & Liang Chen v 188 In re 187 Xueqieng Lin v Holder see also In re . Y-T-L-, 23 I. & N. Dec. 601, In re Kone v AND POLITICS , 337 F. App’x at 280; Guang Lin- 189 of a claim grounded in psychological . Zi Zhi Tang v. Gonzales, 489 F.3d 987, Cf Xueqieng Lin possibility Benyamin v. Holder, 579 F.3d 970, 975 (9th Cir. Benyamin v. Holder, 579 F.3d 970, 975 INTERNATIONAL LAW see also . at 893–94; Lin-Lin v. U.S. Att’y Gen., 360 F. App’x Chang Hao ., 396 F. App’x 891, 893 (3d Cir. 2010). United States appellate Id .153; at . at 642. is not boundless. We note, however, that this approach ., 337 F. App’x 278, 280 (3d Cir. 2010), and the “severe emotional ., 337 F. App’x 278, 280 (3d Cir. 2010), endogenous) vicariously inflicted on the applicant himself or herself inflicted on the applicant himself or endogenous) vicariously Id Id well-founded. also a Abay is find that we Accordingly, of the Act. within the meaning “refugee” or Att’y Gen . S 188. 2010). Kone v. Holder, 496 F.3d 141 (2d Cir. 189. 187. . 392, 394–95 2010); (3d Cir. 157 (3d Cir. 2009); Zheng v. U.S. Att’y Gen., 557 F.3d 147, courts have recognized the who have undergone forced ster- 992 (9th Cir. 2007) (concluding that those of removal); Qu v. Gonza- ilization and abortion are entitled to withholding (“Involuntary sterilization irrevoca- les, 399 F.3d 1195, 1203 (9th Cir. 2005) bly strips persons of one of the important liberties we possess as humans: our reproductive freedom. Therefore, one who has suffered involuntary sterili- zation, either directly or because of the sterilization of a spouse, is entitled, without more, to withholding of removal”); harm in this context, though in the majority of cases the courts have consid- harm in this context, though in the majority did not reach the requisite ered that the purported emotional distress threshold. U N. Dec. 520, 543 (B.I.A. 2008). & N. Dec. 275, 278 (B.I.A. 2007) (“[A]llowing an applicant to obtain asylum & N. Dec. 275, 278 (B.I.A. 2007) (“[A]llowing to his child would require or withholding of removal through persecution . scheme established by Congress.”). granting relief outside the statutory . . by spouses and partners of women A similar argument has been advanced subjected to forced sterilization or abortion. to the Applicants have referred sterilization, “devastation” caused by a spouse’s forced Att’y Gen have more children,” harm” caused by the loss of the “right to 2009) (utilizing the same approach). Circuit and Note, however, the First this approach, making the unquali- Fourth Circuit have expressly rejected fied assertion that “‘persecution’ cannot be based on a fear of psychological harm alone.”Cir. 2007); Niang v. Gonzales, 492 F.3d 505, 512 (4th Cir. 2008); Kechichian v. Mukasey, 535 F.3d 15, 22 (1st tana v.(6th Cir. 2009). Holder, 350 F. App’x 59, 61 sensibly This caution harm (exoge- that there has to be some serious derives from the recognition nous what amounts to a purely derivative harm. rather than invoking Compare this to the more recent decision from the Sixth Circuit where a more recent decision from the Sixth Compare this to the politically unsuccessfully invoked her husband’s female Pakistani applicant for 15 days as amounting to persecution inspired imprisonment 366 of Circuit Court by the Second was approved This approach of in the 2010 decision Appeals \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 52 8-MAR-12 9:05 Board may consider on remand whether the mental anguish remand whether consider on Board may who mutilation a victim of genital who was herself of a mother same fate, or of seeing her daughter suffer the faces the choice may qual- by separation from her child, avoiding that outcome serious harm.’”ify as such ‘other 31420-nyi_44-2 Sheet No. 30 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 30 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 31 Side A 03/19/2012 11:22:47 367 cited with [2000] FCA To live, SBTF v Minister for Immigration , the United States Court of . logic dictates that for an Yet, Karouni In 191 193 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER , 67 F.3d at 1331], we considered the possi- , 67 F.3d at 1331], Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002) (finding Rios v. Ashcroft, 287 F.3d 895, 900 (9th In a recent decision, the Court of Appeals for the Court of Appeals decision, the In a recent [2007] FMCA 1142, [58] (Austl.)). See [2007] FCA 1816, [29] (quoting Ramos Ortiz v. Ashcroft, 70 F. App’x 68 (3d Cir. 2003). Mitev the Court considered that the applicants were living the Court considered that the applicants 190 . [7]. SBTF Minister for Immigration & Multicultural Affairs v Guan Id 192 , The second group of cases recognizing the plausibility of plausibility the cases recognizing group of second The bility that living under threat of death by secret gov- under threat of death by secret bility that living might rise to this level . . . . ernment forces Threats alone, and particularly threats of death, can particularly threats of death, Threats alone, and under certain circumstances. amount to persecution In [ that government forces might secretly day after day, knowing that you is itself a form of mental anguish arrest and execute can constitute persecution it to rise to the level of persecution, unfulfilled threat extraordinarily ominous.must be something It can- in context, is just not simply be a threat of death that, a matter of words. 190. 191. 618, 623 (7th Cir. 2010) (empha- Pathmakanthan v. Holder, 612 F.3d 192. 193. sis added). the possibility The Ninth Circuit has also opened the door to as such might be a risk of being that in extreme cases the risk of threats persecuted. 607 (B.I.A. 2003) (“The act of forced sterilization should not be viewed as a 607 (B.I.A. 2003) (“The act of forced sterilization term in prison, or an incident of se- discreet onetime act, comparable to a vere beating or even torture. as a per- Coerced sterilization is better viewed that has deprived a couple of the manent and continuing act of persecution society and comfort of the child or natural fruits of conjugal life, and the born to them.”). children that might eventually have been Various references to “threats” as relevant harms are evident Various references to “threats” sexual orientation.also in the jurisprudence concerning In Guan 2012] the claims where involves forms of persecution endogenous of as a consequence harm suffered psychological applicant violence or murder.threats of maker noted, As one decision the implications for had its nature, obviously “fear, by psyche.” \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 53 8-MAR-12 9:05 “at the level of furtiveness and fear brought about by the intol- “at the level of furtiveness and fear erance of the State.” Seventh Circuit stated: Seventh Circuit repeated death threats a sufficient basis to establish persecution); Lim v. repeated death threats a sufficient basis (“To effect a well-founded fear, a I.N.S., 70 F. App’x 68, 71 (9th Cir. 2000) fifty-percent likely . . . .”), threat need not be statistically more than approval in &Citizenship 1033 (Austl.). 31420-nyi_44-2 Sheet No. 31 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 31 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 31 Side B 03/19/2012 11:22:47 , SBTF and [Vol. 44:315 of serious [2008] FMCA [2008] FMCA SCAT threat 197 AND POLITICS that constitutes the persecu- that constitutes that “it is the that “it , the House of Lords gave weight S395 R (Hoxha) was the adjudication of a claim brought by a was the adjudication Such references resonate with the words of with the words resonate Such references INTERNATIONAL LAW 195 194 SZKQV v Minister for Immigration & Citizenship cited with approval in SBTF v Minister for Immigration & Citizen- cited with approval in SBTF v Minister for Immigration SCAT : . [21], 196 with its menacing implications implications with its menacing SCAT v Minister for Immigration & Multicultural & Indigenous Affairs SCAT v Minister for Immigration & Multicultural Id Appellant S395/2002 v Minister for Immigration & Multicultural Affairs Appellant S395/2002 v Minister for Immigration ) (2003) 216 CLR 473, 490 (McHugh & Kirby JJ) (Austl.) (emphasis ) (2003) 216 CLR 473, 490 (McHugh A third group of cases involves applicants who have suf- cases involves applicants who A third group of If people are, from an early age, considered by the If people are, from an early age, the society in which great majority of the people in treated as if they they live too be “dirty,” are positively widespread and far- are dirty, and if there is otherwise them, it requires no reaching discrimination against that this may well be degree in psychology to accept very harmful to mental well-being. [2007] FCA 1816, [48] (Austl.). For an application of S2012 of 2003 v Minister for Immigration & Citizenship 196. 197. 194.1168 (9th Cir. 2005). Karouni v. Gonzales, 399 F.3d 1163, 195. S395 ship added). [2003] FCA 80, [23] (Austl.). see 954(Austl.) and ( 2 (Austl.). harm tory conduct.” To similar effect, in one of the female appli- to the psychological risk of returning cants—a who had been raped by Kosovar Albanian woman 368 life applicant’s that the accepted Circuit Ninth for the Appeals in fear every moment he “was living and that was “intolerable” life.” of [his] harm because of ongoing discrimination. fered psychological The case of \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 54 8-MAR-12 9:05 Kirby and McHugh JJ in McHugh JJ in Kirby and member of the Sabean Mandean religious minority from Iran. Mandean religious minority member of the Sabean the minority the case was that members of The essence of and pervasive discrimination.faced widespread For example, majority Mus- called “dirty Sabeans” by the they were regularly food, were were denied the right to handle lim population, from clubs, physical greetings, were excluded not touched in frequently denigrated, and women were their religion was with Muslim men.forced into marriages The Federal Court of effect of prolonged Australia considered that the cumulative entail severe psychological discrimination “was likely to harm” 31420-nyi_44-2 Sheet No. 31 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 31 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 32 Side A 03/19/2012 11:22:47 R 369 (1989) , 29 Oct. recognition in 71404/99 . some http://www.refugee.org.nz/ ), [2005] UKHL 19, [87] (appeal Refugee Appeal No determined that psychological Hoxha available at HJ and HT Chan v Minister for Immigration & Ethnic Affairs Chan v Minister for Immigration & Ethnic QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Baroness Hale suggested that the risk of the that suggested Hale Baroness 199 198 This characterization of harm has also found This characterization of harm text accompanying note 123. In doing so, the Court of Ap- 200 . [36]. more Although in this case Baroness Hale relied on the See supra Id A fourth and final group of cases—ofA fourth and final particular salience To suffer the insult and indignity of being regarded indignity of being the insult and To suffer contami- . . . as “dirty like own community by one’s one has suffered the gross ill-treat- nated” because rape brutal and dehumanizing ment of a particularly sort of cumulative denial of human . . . is the very to my mind is capable of amounting dignity which to persecution. 200. 198. R v. Special Adjudicator ( 199. 1999, at paras [67], [74], Casesearch/Fulltext/71404-99.htm. taken from Eng. & Wales C.A.). the more concrete cruel, inhu- ambiguous notion of ‘dignity’, rather than latter would easily have embraced man or degrading treatment standard, the the relevant harms. In 169 CLR 379, 430–31, McHugh J stated: “Other forms of harm short of inter- ‘persecution’ for the purposes of ference with life or liberty may constitute the Convention and Protocol. dignity Measures ‘in disregard’ of human . . . .”may, in appropriate cases, constitute persecution similar discus- For a sion in the New Zealand context, see peal followed its earlier authority in Z v. Sec’y of State for the Home Dep’t, peal followed its earlier authority in Z v. A.R. 75 (appeal taken from Immigr. [2004] EWCA (Civ) 1578, [2005] Imm. for the Home Dep’t, [2006] EWCA Appeal Trib.) (U.K.); J v. Sec’y of State taken from Asylum & Immigr. (Civ) 1238, [2007] Imm. A.R. 73 (appeal Trib.) (U.K.); Amare v. Sec’y of State for the Home Dep’t, [2005] EWCA (Civ) 1600, [2006] Imm. A.R. 217 (appeal taken from Immigr. Appeal Trib.) (U.K.); RG (Colom.) v. Sec’y of State for the Home Dep’t, [2006] EWCA (Civ) 57, [2006] Imm. A.R. 297 (appeal taken from Asylum & Immigr. Trib.) domestic courts that the psychological harm occasioned by that the psychological harm occasioned domestic courts a protected identity or desisting from concealing a protected risks for the purposes of activity might give rise to a cognizable the “being persecuted” inquiry. English As already noted, the Court of Appeal in to gay persons opting for self-repression—concernsto gay persons opting applicants of the psychological harm as a consequence who have suffered behavior.modification of been There has 2012] forces. Serbian \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 55 8-MAR-12 9:05 continued and severe stigma could, at least in a severe case, least in a severe could, at and severe stigma continued no where there was persecuted, even to a risk of being amount being repeated: the rape itself real chance of longer any harm in these circumstances could amount to a risk of being harm in these circumstances could persecuted. 31420-nyi_44-2 Sheet No. 32 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 32 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 32 Side B 03/19/2012 11:22:47 the Sec’y . 201 Z v , [Vol. 44:315 HJ and HT Fatin a state of mind or and S395 204 AND POLITICS In that case, the Court of Appeals for In that case, the , [2004] EWCA (Civ) 1578, [15], Buxton LJ (with 203 . 202 INTERNATIONAL LAW Fisher .), [2006] EWCA (Civ) 57, [16] (noting that “the high level of .), [2006] EWCA (Civ) 57, [16] (noting . at 1242. . at 1381. that fits with the definition of persecution . . . .” (emphasis added). that fits with the definition of persecution Id Id These four categories of refugee cases in which endoge- These four categories of refugee [T]he concept of persecution is broad enough to in- is broad enough of persecution [T]he concept indi- measures that compel an clude governmental in conduct that is not physically vidual to engage but is abhorrent to that individ- painful or harmful ual’s deepest beliefs. of such conduct An example her a person to renounce his or might be requiring or to desecrate an object of religious religious beliefs importance. 201. Fatin v. I.N.S, 12 F.3d 1233 (3d Cir. 1993). 202. 203. Fisher v I.N.S., 37 F.3d 1371 (9th Cir. 1994). 204. conscience See RG (Colom denial of freedom can be said to be distress that must be reached before a persecutory.”). (U.K.); and EWCA XY (Iran) v. Sec’y of State for the Home Dep’t, [2008] Immigr. Trib.) (U.K.).(Civ) 911 (appeal taken from Asylum & In of State for the Home Dep’t stated that “[The] case only whom Jacob LJ and Peter Gibson LJ agreed) results in a condition that can prop- falls under the Refugee Convention if it on the subject erly be called persecutory, in that it imposes This suggestion was subsequently taken up and emphatically was subsequently taken up and This suggestion endorsed in as persecutory align nous, psychological harm is recognized international human rights neatly with the jurisprudence of or degrading treat- tribunals interpreting “cruel, inhuman harm.ment” as including serious psychological Moreover, torment of self-repression there is reason to believe that the in both that would await the applicants 370 States. United in the traction some of the case In reference to being “cap- (recall the Bangladeshi applicants’ Iranian applicant’s insistence tives in our homeland” and the return to his country) is very that it was “impossible” for him to \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 56 8-MAR-12 9:05 the Ninth Circuit considered it “clear that being forced to con- considered it “clear that being the Ninth Circuit with, a con- sanctioned for failing to comply form to, or being is at odds with one’s own ception of Islam that fundamentally . . . can rise to the level of persecution.” Court of Appeals for the Third Circuit posited, albeit “for the albeit “for Third Circuit posited, Appeals for the Court of wear some women to that requiring argument” only, sake of the it would satisfy to them that may be so abhorrent chadors threshold: “being persecuted” 31420-nyi_44-2 Sheet No. 32 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 32 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 33 Side A 03/19/2012 11:22:47 R R no 371 note supra ARRANT falls squarely W for the courts for the 205 identity EHAVIOR unequivocally acknowl- ? B UNHCR Handbook, See TATUS S HJ and HT , the Australian High Court affirmed EFUGEE and R with Justices McHugh and Kirby going with Justices McHugh and Kirby OLLOWING FROM S395 F 207 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER The United Kingdom Supreme Court took The United Kingdom Supreme S395 In ISK 208 R 206 text accompanying note 34. OES . at 494. Appellant S395/2002 v Minister for Immigration & Multicultural Affairs Id See supra that gay men and women may be considered to be a par- that gay men and women may be ) (2003) 216 CLR 473, 494 (McHugh & Kirby JJ), 497 (Hayne & Gum- The courts in III. D 207. 208. 205.approach may raise evidential Of course, we acknowledge that this 206. S395 issues; particularly in regard to the nature of the evidence to be adduced to issues; particularly in regard to the nature satisfy the requisite threshold. recall that In this regard, it is important to the fact-finding process in refu- the most fundamental principle governing seek out and present objective evi- gee claims is that the responsibility to seeking protection, and the state to dence of risk is shared by the person which the asylum request is addressed. in principle rests on the applicant, 101, ¶ 196 (“[W]hile the burden of proof ( mow JJ) (Austl.). the duty to ascertain and evaluate all the relevant facts is shared between the the duty to ascertain and evaluate all the applicant and the examiner.for the exam- Indeed, in some cases, it may be produce the necessary evidence in iner to use all means at his disposal to support of the applicant.”). 2012] has recognized that jurisprudence with refugee in line much of the psychological on the basis to be established persecution of in consequence of violence, from threats harm following that occasioned and, most especially, discrimination ongoing to one’s identity. activity related from a protected by desisting matter have been a straightforward It would \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 57 8-MAR-12 9:05 edged that risk for reasons of one’s sexual edged that risk for within the Convention’s requirement that the well-founded requirement that the within the Convention’s to one of the be causally connected fear of being persecuted “membership of a particular five nexus grounds, specifically sexual group.” so far as to say that a contrary finding would “arguably have so far as to say that a contrary been perverse.” the same tack, with Lord Hope observing that there is “ the same tack, with Lord Hope doubt the primary tribunal’s finding that homosexual men in Ban- the primary tribunal’s finding that social group” for the purpose gladesh constitute a “particular of the Convention, to reach the same result without finding that there was a genu- that there was a without finding the same result to reach actually ac- harm that would not ine risk of (an exogenous) crue. 31420-nyi_44-2 Sheet No. 33 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 33 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 33 Side B 03/19/2012 11:22:47 that if , Lord ), [2010] Shah [Vol. 44:315 HJ and HT HJ and HT . In Lord Hoffmann’s oft-cited Id AND POLITICS ), [1999] UKHL 20, [1999] 2 A.C. Shah satisfies the nexus criterion as easily satisfies the nexus since “[t]he group is defined by the is defined group “[t]he since 209 211 INTERNATIONAL LAW , [2010] UKSC 31, [11], [2011] 1 A.C. at 621. , [2010] UKSC 31, [11], [2011] 1 A.C. It is thus clear that if the risk accrues for reason risk accrues for clear that if the It is thus imputed identity 210 the failure of state protection—that summative concept is logically HJ and HT and Equally important, both courts also affirmed that risk for both courts also affirmed that Equally important, [w]hen an applicant applies for asylum on the applies for asylum on [w]hen an applicant fear of persecution because ground of a well-founded [S]uppose that the Nazi government . . . did not actively organize [S]uppose that the Nazi government . by neighbors.violence against the Jews subjected to violence Jew- A by an Aryan com- ish shopkeeper is attacked by a gang organized are motivated by business petitor . . . . The competitor and his gang scores . . . . Is he being rivalry and the desire to settle old personal my opinion, he is.persecuted on grounds of race? . . . [I]n An failure by the authorities essential element in the persecution, the to provide protection, is based upon race. It is true that one answer would be “because a com- to the question “why was he attacked?” petitor wanted to drive him out of business.” But another answer, and in my view the right answer in the context of the Convention, would be “he was attacked by a competitor who knew he would receive no protection because he was a Jew.” 209. Dep’t ( HJ (Iran) v. Sec’y of State for the Home 210. 211. harm” or the “failure of state Significantly, only one of the “serious . formulation: Id reasons of 372 group” social ticular \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 58 8-MAR-12 9:05 the risk of “being persecuted” is the sum of two facts—thethe risk of “being persecuted” is the sum threat of serious harm either of the two essential elements “for reasons of” a Convention ground if is “for reasons of” a Convention ground. protection” needs to be causally connected to the protected interest.protection” needs to be causally connected Islam v. Sec’y of State for the Home Dep’t ( 629, 653–54 (Lord Hoffmann).of Lords reasoned in The House UKSC 31, [10], [2011] 1 A.C. 596, 620 (appeal taken from Eng. & Wales UKSC 31, [10], [2011] 1 A.C. 596, 620 C.A.) (emphasis added). refer to the Both Lord Hope and Lord Rodger also Protection (Qualification) Reg- Refugee or Person in Need of International (U.K.), in support of this proposi- ulations, 2006, S.I. 2006/2525, ¶ 6(1)(e) tion. immutable characteristic of its members’ sexual orientation or sexual orientation of its members’ characteristic immutable sexuality.” of sexual identity per se—forof sexual applicant fears that example, the of legislation imprisoned because be arrested and he will him- openly identify or will not homosexuality, criminalizing abil- deprived of the that he will be because he fears self as gay if he does—thenity to earn a livelihood require- the nexus ment is satisfied. as risk that follows from actual identity. In as risk that follows Rodger stated that 31420-nyi_44-2 Sheet No. 33 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 33 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 34 Side A 03/19/2012 11:22:47 373 and S395 215 or that he 213 214 , Justices Gummow and Hayne made , Justices Gummow 212 . S395 , of the social group.” QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER , Lord Hope stated: , Justices McHugh and Kirby noted the need McHugh and Kirby , Justices , [2010] UKSC 31, [82], [2011] 1 A.C. at 647 (emphasis , [2010] UKSC 31, [82], [2011] 1 A.C. , [2010] UKSC 31, [11], [2011] 1 A.C. at 621. S395 also recognized that the nexus requirement can be that the nexus requirement can also recognized (2003) 216 CLR at 486 (emphasis added). HJ and HT . at 500–01. HJ and HT S395 Id HJ and HT real or imputed [s]exual identity is not to be understood . . . as con- is not to be understood . . . as [s]exual identity indeed, to any par- fined to particular sexual acts or, It may, and often ticular forms of physical conduct. human relationships will, extend to many aspects of and activity. That two individuals engage in sexual “discreetly”) may say acts in private (and in that sense would choose to nothing about how those individuals are related to, or live other aspects of their lives that . informed by, their sexuality . . . [Sexual orientation] is a characteristic that may be re- [Sexual orientation] is a characteristic by the way the vealed, to a greater or lesser degree, members of this group behave. In that sense, be- it is less immedi- cause it manifests itself in behaviour, ately visible than a person’s race. But unlike a per- it is incapable of son’s religion or political opinion, being changed. To pretend that it does not exist, or itself can be that the behaviour by which it manifests of this group suppressed, is to deny the members they are. their fundamental right to be what Beyond well-founded fear of being persecuted that is fear of being persecuted Beyond well-founded he is gay, the tribunal must first ask itself whether it is whether ask itself must first tribunal gay, the he is that he is gay, on the evidence satisfied in his coun- persecutors treated as gay by potential would be try of nationality 212. 213. 214. 215. added). clear that HJ and HT of identity, accrues not simply by reason satisfied where risk to the pro- at least some activities connected but in response to tected identity. In And in grounded in actual or imputed identity, the courts in or imputed identity, the courts grounded in actual 2012] in Similarly, the between of a causal relationship the “existence to establish or attrib- one or more of the characteristics harm feared and utes, \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 59 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 34 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 34 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 34 Side B 03/19/2012 11:22:47 R any [Vol. 44:315 that there . at 502. Id HJ and HT ), suggesting that “gay 220 and . [78], [2011] 1 A.C. at 646. AND POLITICS Id (2003) 216 CLR at 501. They contin- S395 ) associated with homosexuality ) associated with S395 is surely right. There is, however, a 218 217 and, in particular, the all-embracing for- and, in particular, 219 INTERNATIONAL LAW , [2010] UKSC 31, [78], [2011] 1 A.C. at 646. , [2010] UKSC 31, [78], [2011] 1 A.C. at 645–46., [2010] UKSC 31, [78], [2011] 1 A.C. —seem to assume that risk following from text accompanying notes 224–231. 221 , Gummow and Hayne JJ rejected the suggestion that any line , Gummow and Hayne JJ rejected the suggestion S395 . the courts were quite right to reject the rigid “is/does” to reject the were quite right the courts HJ and HT Id See infra HJ and HT By reason of the strong link between the Refugee Conven- the Refugee link between the strong of By reason Yet, this all-inclusive approach to identifying which ac- Yet, this all-inclusive approach 216 220. 221. 219. In 216. 217. 218. Lord Rodger himself admits this. between protected and other activity should be drawn, asserting that “the between protected and other activity should require anyone to do anything in tribunal has no jurisdiction or power to the country of nationality . . . .” ued to say that “considering what an individual is entitled to do is of little assistance . . . .” in the assessment of refugee status. 374 be- law, described non-discrimination clause and tion’s nexus low, \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 60 8-MAR-12 9:05 “gay” form of behavior gives rise to refugee status. “gay” form of behavior gives rise be included within the pro- tions are appropriately deemed to really cannot be reconciled tected status of sexual orientation Convention’s benefici- to the accepted view that the Refugee ary class is delimited. In defining the approach to interpreta- mulation advanced by Lord Rodger in the United Kingdom mulation advanced by Lord Rodger Supreme Court—which with a passage outlining crescendos freely and openly as a gay what he believes it means to “live coloured cocktails and man” (a life of Kylie concerts, exotically “boy talk” with straight female friends equivalents in the society men are to be as free as their straight way that is natural to them concerned to live their lives in the as gay men” dichotomy. that the scope Rodger’s insistence Indeed, Lord the to “enable beyond that necessary activity goes of protected and maintain partners and establish to attract sexual applicant them” relationships with protected at law was ignored.are not presently The open-en- by the High of relevant actions adopted ded formulation Court of Australia critical distinction between recognizing that a meaningful un- between recognizing that a meaningful critical distinction bedrock of non-discrimination norms as the derstanding of risks, requires attention to action-based the nexus requirement suggested in and the position are no limits to which action-based risks are relevant.are no limits to In both of behavior that at least some forms cases, the possibility loosely (or stereotypically 31420-nyi_44-2 Sheet No. 34 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 34 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 35 Side A 03/19/2012 11:22:47 R 375 NITED Appli- . at 494. U Id jus cogens ”) (1997) 190 . essentially re- (1997) 190 CLR Applicant A ELATIONS OF THE (“ R Applicant A Applicant A note 158, at 28–31. to include “systematic racial HJ and HT ] approach may be under- Appellant S395/2002 v Minister of OREIGN supra , F itself the Australian High Court ef- ) (2003) 216 CLR 473, 494. Indeed, to insist that the amorphous and jus cogens OF ) S395 S395 ( S395 approach. ATHAWAY HIRD ejusdem generis H (T , the Supreme Court of Canada invoked , the Supreme Court of Canada Having instead inserted a delimiting instead inserted Having QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER ejusdem generis 223 Ward ejusdem generis See generally ESTATEMENT R In ., g . e that, “if [the drafters] had intended to provide a had intended [the drafters] that, “if 225 —as the principled reference point for identifying , . at 260 (McHugh J). Given the varying approaches, and the protection gaps which 222 A v Minister for Immigration & Ethnic Affairs A v Minister for Immigration & Ethnic Affairs Id See 224 § 702 cmt. n (1987) (defining How, then, should the courts have proceeded?How, then, should Senior can result, . . . . [t]he two approaches ought to be reconciled. The protected characteristics [ stood to identify a set of groups that constitute the core of the so- 222. 225. been to conceptualize “particular In Australia the traditional view has 223. 224. TATES the Court expressly rejected the view adopted by the Refugee Review Tribu- the Court expressly rejected the view adopted test that gay men could be divided nal on the basis of the social perception homosexuals). into two sub-groups (“discreet” and “non-discreet” Yet ironically, even as Australia—home of the “social perception” test—has jurisdictions have placed greater impliedly questioned this approach, other group: weight on the outward perception of a 225, 300. Importantly, however, in social group” by reference to a “social perception” test focusing attention on social group” by reference to a “social perception” group. the external or outward perception of a fectively adopted a Immigration & Multicultural Affairs discrimination”). S 2012] ground, group” social a particular of of the “membership tion seminal case of held in the Court of Australia the High cant A have that they would likely than not . . . ,’ it is more ‘catch-all the specific grounds by eliminating the draft treaty amended of persecution.” \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 61 8-MAR-12 9:05 norm courts of the common law world have long recognized the law world have long recognized courts of the common principle of non-discrimination—the value core human rights and arguably a of the international system, clause—thatof” “for reasons being persecuted only risks of status—the would give rise to refugee one of five grounds is unavoid- with the scope of that delimitation need to grapple able. Yet, the decisions in orienta- this question in the context of sexual fuse to confront the “catch-all” resuscitating a version of tion, thereby ironically re- “social group” ground so emphatically approach to the High Court in jected by the Australian CLR 225 (Austl.). those interests protected by the Convention’s nexus those interests protected by grounds. the principle of 31420-nyi_44-2 Sheet No. 35 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 35 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 35 Side B 03/19/2012 11:22:47 : ap- 226 , 228 In that Acosta [Vol. 44:315 was subse- 229 . ejusdem generis ejusdem generis Shah ), [1999] UKHL 20, Ward overruled in part on other Shah The Court considered and 227 AND POLITICS as reflecting a “classic discrimina- Acosta Acosta approved Ward INTERNATIONAL LAW Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987). Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. The Canadian , [1993] 2 S.C.R. at 739 (La Forest J.). Acosta, 19 I. & N. 211 (B.I.A. 1985), . at 734 (La Forest J.). If a claimant alleges a social group that is based on a character- If a claimant alleges a social group that is In re Ward Id The approach adopted in The approach adopted In my opinion, the concept of discrimination in mat- In my opinion, the concept of discrimination and freedoms is ters affecting fundamental rights Convention . . . . central to an understanding of the cial perception analysis. a Accordingly, it is appropriate to adopt dominant approaches . . . . single standard that incorporates both . . . or fundamental, further istic determined to be neither unalterable whether the group is analysis should be undertaken to determine in that society. nonetheless perceived as a cognizable group 226. 227. 228. 229. Islam v. Sec’y of State for the Home Dep’t ( U.N. High Comm’r for Refugees, “Membership of a Particular Social Group” U.N. High Comm’r for Refugees, “Membership 1951 Convention and/or its 1967 Within the Context of Article 1A(2) of the ¶¶ 10–13,Protocol Relating to the Status of Refugees, U.N. Doc. HCR/GIP/ 02/02 (May 7, 2002). thus remains Although the current state of the law agree that the unclear, decision makers and the UNHCR of “particular social group,” even proach lies at the core of any consideration outward perception of the group. if greater weight is now being given to the tion analysis.” 736. Canada (Att’y Gen.) v. Ward, [1993] 2 S.C.R. 689, [1999] 2 A.C. 629, 651 (Lord Hoffman) (appeal taken from Eng. & Wales C.A.). grounds by in re Supreme Court in 376 be inter- category group” social of a particular “membership principle the non-discrimination consonance with preted in race, religion, Convention grounds: the other four informing opinion. and political nationality of on the reasoning Drawing Appeals in of Immigration States Board the United as- that the meaning considered Supreme Court the Canadian “take into account group” should “particular social signed to human rights themes of the defence of the general underlying the interna- that form the basis for and anti-discrimination initiative.” tional refugee protection \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 62 8-MAR-12 9:05 quently approved by the House of Lords in quently approved that anti-discrimination notions inherent in civil and political notions inherent in civil that anti-discrimination and that in particular social group category, rights limited the it is ap- of that Convention ground distilling the boundaries concepts.” inspiration in discrimination propriate to “find case, Lord Hoffmann advanced a test substantively indistin- advanced a test substantively case, Lord Hoffmann reliance on guishable from the North American 31420-nyi_44-2 Sheet No. 35 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 35 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 36 Side A 03/19/2012 11:22:47 377 Proto- parie and in 230 context opened for signature and its attendant or, of matters in or, of matters Under this understanding, , art. 4 (“Without prejudice to the 231 .” Refugee Convention , supra ejusdem generis VCLT with discrimination on other discrimination with purpose See QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER and object parie materiae , is, of course, consistent with accepted principles of with accepted principles , is, of course, consistent . Id grounds, which would be equally offensive to human grounds, which “par- to use the general term rights . . . . In choosing of rather than an enumeration ticular social group” the framers of the Convention specific social groups, intending to include whatever were in my opinion anti- regarded as coming within the groups might be of the Convention. discriminatory objectives of The invocation The obvious examples, based on the experiences of experiences on the based examples, obvious The have been which would in Europe the persecutions race, re- in 1951, were of the delegates in the minds opinion. and political ligion, nationality the in- But that group” recognised of “particular social clusion criteria for discrimination, be different there might in predate the VCLT. 230. 231. art. 31, Vienna Convention on the Law of Treaties col application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.”). light of its May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT] (emphasis added). May 23, 1969, 1155 U.N.T.S. 331 [hereinafter that articles 31 and 32 of The International Court of Justice has pronounced law, and therefore apply to the the VCLT constitute customary international of whether the state parties involved interpretation of any treaty, irrespective (Libya/Chad), 1994 I.C.J. 6, 21. are parties to the VCLT Territorial Dispute technically apply to an interpreta- This is important as the VCLT does not tion of the Convention, as both the materiae to interpret a requiring a decision maker treaty interpretation with the ordinary meaning treaty “in good faith in accordance treaty in their to be given to the terms of the 2012] \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 63 8-MAR-12 9:05 the textually plain intent to constrain the scope of the Refugee the textually plain intent to constrain respected, even as a clear and Convention’s beneficiary class is is established.compelling basis for that delimitation But de- it does not amount to an spite the flexibility of this approach, refugee law as an all-encom- invitation to treat international passing remedy. themselves And if the Convention grounds basis can it be suggested are not boundless, on what possible encompassed by such that the scope of protected activity grounds is without limitation? engenders If the activity that 31420-nyi_44-2 Sheet No. 36 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 36 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 36 Side B 03/19/2012 11:22:47 R Applicant [Vol. 44:315 233 a case involving AND POLITICS , Lord Hope expressly stated Applicant NABD, ) (2005) 216 ALR 1, [113] (Austl.). HJ and HT text accompanying note 68. 232 INTERNATIONAL LAW Applicant NABD See supra ( . [116]. , Justice Kirby relied on the language of article 18 of the , Justice Kirby relied on the language Id Applicant NABD of 2002 v Minister for Immigration & Multicultural & But it is by no means clear that only rights-violative actions But it is by no means clear that only the human rights of the applicant for protection the human rights rights of other must be accommodated to the human of nationality and in individuals, both in the country is sought.the country in which protection Violent, conduct aggressive or persistently [non-consensual] not protected by the “for reasons of . . . religion” are other instruments of Convention, any more than by international law. The uncontroversial nature of this principle is clear from nature of this principle is clear The uncontroversial 233. 232. Indigenous Affairs The position that actions that infringe the rights of others are The position that actions that infringe course, intrinsic in the very not themselves protected is, of rights law.structure of international human In NABD right to freedom of religion ICCPR which makes clear that the are prescribed by law and are is subject to “such limitations as order, health, or morals or necessary to protect public safety, of others.” the fundamental rights and freedoms the protected forms of civil or are excluded from the ambit of political status.and politi- To the contrary, at least in religion quite prepared to engage cal opinion cases, courts have been from unprotected forms in line-drawing to separate protected of activity. Indeed, in religious persecution, Justice Kirby of the Australian High Justice Kirby of the Australian religious persecution, Court stated that 378 status, protected forms of the five one of to is intrinsic the risk of course, be recognized. status must, then refugee But if the con- than marginally risk is no more the activity precipitating ensu- status, then the of protected one of the forms nected to to be be said cannot reasonably of being persecuted ing risk ground. of” a Convention “for reasons Kingdom of the Australian and United the preparedness the context scope of protected activities in courts to limit the or political the cognate grounds of religion of claims based on opinion. example of precipitating Perhaps the most obvious harm that is be said to give rise to a risk of actions that cannot that in- a protected status are those actions “for reasons of” of others.fringe the rights In \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 64 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 36 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 36 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 37 Side A 03/19/2012 11:22:47 236 379 ), [2010] HJ and HT Similarly, the Court of Ap- Similarly, the Court 235 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER We have seen this approach adopted—at seen this approach We have with times, 234 Drawing a line between protected and unprotected activi- protected and unprotected Drawing a line between The Ahmad decision was distinguished in part in a later case interpret- The Ahmad decision was distinguished 234. Dep’t ( HJ (Iran) v Sec’y of State for the Home 236. Storozhenko v. Sec’y of State for the Home Dep’t, [2001] EWCA 235. Dep’t, [1990] Imm. A.R. 61 Ahmad v. Sec’y of State for the Home ties beyond the fairly clear area of actions that infringe the fairly clear area of actions that ties beyond the not an easy task.rights of others is of Indeed, the line drawing of the kind to religion and political opinion courts in relation cited above has at times been problematic. proselytiz- Why was religious activity?ing not found to be protected Why was the face of corruption not a standing up for due process in political opinion?in the sexual This difficulty is accentuated orientation context where—in to “religion” and “po- contrast offers clear, if nascent, litical opinion” for which the ICCPR protected activities—thetextual guidance on the scope of ab- sexual orientation in interna- sence of any express mention of must be derived indi- tional instruments means that guidance non-discrimination law, and rectly from the understandings of more generally. international human rights law 2012] or of religion for reasons is of persecution the fear “where that examine the nature be necessary to opinion, it may political he applicant claims activity that the of any and consequences the country of nation- if returned to wish to pursue or she may ality.” \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 65 8-MAR-12 9:05 (Civ) 895 (appeal taken from Immigr. Appeal Trib.) (U.K.). (appeal taken from Immigr. Appeal Trib.) (U.K.) (affirming the Court of (appeal taken from Immigr. Appeal Trib.) Sec’y of State for the Home Dep’t, Appeal’s earlier decision in Mendis v. Immigr. Appeal Trib.) (U.K.)).[1989] Imm. A.R. 6 (appeal taken from The that there could be no such Court of Appeal was careful to acknowledge as [a] fundamental human right.” constraint on an activity “widely regarded Id. ing the internal protection alternative. Sec’y of State for the Home Dep’t v. Ahmed, [1999] EWCA (Civ) 3003, [2000] INLR 1 (appeal taken from Asy- lum & Immigr. Trib.) (U.K.). UKSC 31, [17], [2011] 1 A.C. 596, 623 (appeal taken from Eng. & Wales UKSC 31, [17], [2011] 1 A.C. 596, 623 C.A.)). particular vigor—byparticular Appeal. Court of the English In a case to propagate Pakistan determined an Ahmadi from involving and a clear despite its official prohibition his version of Islam that an appli- the Court of Appeal held risk of physical injury, in a country to curb religious activity cant may be required hostility. where it would attract peal has held that “standing up for law and order” in a corrupt “standing up for law and order” peal has held that opinion.” fall within the ambit of “political system does not 31420-nyi_44-2 Sheet No. 37 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 37 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 37 Side B 03/19/2012 11:22:47 R R 240 Bur- note supra [Vol. 44:315 and to be 238 note 15. WABR v Minister for Immigration & AND POLITICS supra undertaking public service, undertaking public 239 There is also clearly a right openly to also clearly a right There is 237 (2002) 121 FCR 196, 204. The non-discrimination note 15; Millbank, INTERNATIONAL LAW supra , Dudgeon v. United Kingdom, 4 Eur. H.R. Rep. 149, 161 (1981) Dudgeon v. United See For example, the jurisprudence makes clear that there is a that there clear makes the jurisprudence For example, 240. Smith v. United Kingdom, 29 Eur. Ct. H.R. 493 (1999). 239. Karner v. Austria, 39 Eur. Ct. H.R. 24 (2004); Kozak v. Poland, App. 237. 238. by the Full Federal Court of In these circumstances, the suggestion No. 13102/02, Eur. Ct. H.R. (2010). (finding that legislation in Northern Ireland prohibiting anal intercourse in Northern Ireland prohibiting (finding that legislation Modinos v. right to have one’s private life respected); interferes with the that Cyp- Rep. 485, 493 (1993) (finding it undisputed Cyprus, 16 Eur. H.R. relations was private consensual homosexual riot legislation criminalizing Constitution of to privacy found in the ECHR and the contrary to the right 186, 196 (1988) ); Norris v. Ireland,13 Eur. H.R. Rep. the Republic of Cyprus homosexual legislation criminalizing private (finding that even unenforced SL v. Austria, 37 Eur. H.R. Rep 799, acts infringes on the right to privacy); Austrian Criminal Code defining 809 (2003) (finding that provisions in the against homosexual men); the age of consent unjustifiably discriminated Eur. H.R. Rep. 1055, 1071 (1999) Salgueiro da Silva Mouta v. Portugal, 31 decision based on the father’s sex- (finding that a detrimental child custody of the EHCR); Toonen, ual orientation amounted to a violation consensual activity in private” is 143, ¶ 8.2 (finding it “undisputed that adult Multicultural Affairs makers in the task of ascertaining framework is a tool that can assist decision and principled manner. It is the scope of protected activities in an objective divorced from international not an invitation for subjective line drawing, the outdated, and at times patently standards. For a detailed discussion of decision makers in attempting discriminatory, reasoning adopted by refugee see Dauvergne & Millbank, to define the scope of protected activities, dened by Proof Australia that “public manifestation of homosexuality is not an essential part Australia that “public manifestation of homosexuality of being homosexual” is plainly incorrect. protected by article 17 of the ICCPR); X v. Colombia, Commc’n No. 1361/ protected by article 17 of the ICCPR); (May 4, 2007) (finding 2005, ¶ 7.2, U.N. Doc. CCPR/C/89/D/1361/2005 ICCPR for denying pension bene- Colombia in violation of article 26 of the Commc’n No. 941/2000, ¶ fits to same sex partners); Young v. Australia, (Sept. 18, 2003) (finding an Aus- 10.4, U.N. Doc. CCPR/C/78/D/941/2000 to opposite sex partners but de- tralian pension law which granted benefits be a violation of article 26 of the nied benefits to same sex partners to ICCPR). 380 activity. of protected private sphere of interest The protected engaging in sexual at the very least, includes, sexual identity and cohab- a relationship, seeking and maintaining conduct, a partner. iting with \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 66 8-MAR-12 9:05 identify oneself as a member of a sexual minority, of a sexual oneself as a member identify safeguarded from discrimination in relation to such spheres as discrimination in relation to such safeguarded from securing accommodation, 31420-nyi_44-2 Sheet No. 37 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 37 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 38 Side A 03/19/2012 11:22:47 R , , 381 Schalk S395 note 242, app. In But to this point, the to this point, But supra has not been recognized has not 241 , 243 Joslin , two members of the Committee observed QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER or adopt children or adopt , App. No. 30141/04, ¶ 105. New Zealand . 242 Schalk As Justices Gummow and Hayne insisted in Hayne insisted Gummow and As Justices ´ e v. France, 38 Eur. Ct. H.R. 21 (2004). Joslin v similarly remarked: 244 245 Appellant S395/2002 v Minister for Immigration & Multicultural Affairs Appellant S395/2002 v Minister for Immigration ) (2003) 216 CLR 473, 500–01 (Austl.). U.K. Supreme Court in The [s]exual identity is not to be understood in this con- be understood identity is not to [s]exual acts to engaging in particular sexual text as confined con- particular forms of physical or, indeed, to any duct. to many aspects It may, and often will, extend and activity.of human relationships That two indi- that sexual acts in private (and in viduals engage in may say nothing about how those sense ‘discreetly’) their choose to live other aspects of individuals would to, or informed by, their sexual- lives that are related ity. At the most basic level, if a male applicant were to live discreetly, he At the most basic level, if a male applicant expression of affection would in practice have to avoid any open would be acceptable be- for another man which went beyond what havior on the part of a straight man. He would have to be cautious of friends in which he about the friendships he formed, the circle moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be sponta- neous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of hetero- 243. Frett 244. marriage context, where, even This is clearly shown in the same-sex 242. 902/1999, U.N. Doc. CCPR/C/ Joslin v. New Zealand, Commc’n No. 241. Eur. Ct. App. Nos. 4916/07, 25924/08, 14599/0, Alekseyev v. Russia, 245. S395 that “the Committee’s jurisprudence support[ed] the position that such dif- that “the Committee’s jurisprudence support[ed] circumstances of a concrete case, ferentiation may well, depending on the amount to prohibited discrimination.” as the Human Rights Committee and European Court of Human Rights as the Human Rights Committee and sexual orientation in relation to mar- held that differentiation on grounds of this might well change in the near riage was reasonable, they indicated that future. In 75/D/902/1999 (July 17, 2002) (Human Rights Comm.); Schalk v. Austria, 75/D/902/1999 (July 17, 2002) (Human App. No. 30141/04, Eur. Ct. H.R. (2010). H.R. (2010), ¶ 82. the European Court of Human Rights noted that there was an “emerging the European Court of Human Rights of same-sex couples” and that European consensus towards legal recognition evolving rights with no established it was an area to be regarded “as one of consensus.” ( HJ and HT 2012] expression. in political engaging and \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 67 8-MAR-12 9:05 as within the scope of protected activity. the scope of protected as within understandings Such normative consensus over time as the course, change may, of evolves. right to marry right to 31420-nyi_44-2 Sheet No. 38 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 38 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 38 Side B 03/19/2012 11:22:47 [Vol. 44:315 . 367, 389–90 ), [2010] UKSC & L and note the im- and note 246 ENDER HJ and HT . J. G AND POLITICS OLUM C , 19 INTERNATIONAL LAW Finding the Fundamental: Shaping Identity in Gender and Sexual In our view, the protected status of sexual orientation sexual status of the protected view, In our Reliance on international human rights law, of course, de- Reliance on international human effectively denies cultural differences. af- As with gender, culture communities form and in- fects the ways in which gay and lesbian orientation is individually teract as well as the ways in which sexual gender identity, is created expressed . . . . Sexual orientation, like by and through culture, as opposed to having an essential core. sexual life, but he would have to think twice before revealing that sexual life, but he would have to think he was attracted to another man. Similarly, the small tokens and granted between men and gestures of affection which are taken for women could well be dangerous. In short, his potential for finding would be profoundly af- happiness in some sexual relationship fected. 246. of what it means to be gay Relying on an unstated presumption (2010). Sarah Hinger, Orientation Based Asylum Claims 31, [77], [2011] 1 A.C. 596, 645 (Lord Rodger) (appeal taken from Eng. & 31, [77], [2011] 1 A.C. 596, 645 (Lord Wales C.A.). HJ (Iran) v. Sec’y of State for the Home Dep’t ( HJ (Iran) v. Sec’y of State for the Home 382 re- activity reasonably encompass any generally to ought more sexual identity. an individual’s reveal or express quired to We be no single, univer- that there can of course, acknowledge, of such activity, definition sally acceptable \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 68 8-MAR-12 9:05 portance of ensuring a culturally sensitive and inclusive ap- and inclusive culturally sensitive of ensuring a portance proach. be some activities at least But it remains that there will innocu- with sexual identity which, though loosely associated to reveal or are not reasonably required ous and inoffensive, sexual identity.express an individual’s Where risk accrues an activity no an applicant having engaged in only by virtue of identity—in- associated with sexual more than peripherally identity arises from an imputation of sexual cluding where risk having engaged in such activity—itderived solely from cannot of” sex- to be a risk that arises “for reasons reasonably be said ual orientation.likely to include attending In our view, this is and engaging multicolored cocktails Kylie concerts, drinking in “boy talk.” assertion that all activities in nies the possibility of immediate are necessarily protected.any way associated with sexuality We the most principled basis for nonetheless believe that it affords or actions included within a drawing a line between behavior status, and those which are form of protected civil or political not. 31420-nyi_44-2 Sheet No. 38 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 38 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 39 Side A 03/19/2012 11:22:47 EW AW 383 L N 248 EFUGEE VE OF A R E NOF . 250 SSOC A (1998). L ’ Membership of a Particular Social NT I 85, 85 in , ETERMINATION ON THE D the connection between Refugee between the connection UDICIARY Jain v. Sec’y of State for the Home Dep’t, J 247 See EFUGEE The Relationship Between Human Rights and Refugee The Relationship Between Human Rights and 477, 482 (2003). R as judges are less likely to view an inter- as judges are less L. QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER 249 OLE OF THE R EFUGEE HE EALITIES OF R : T J. R L ’ HE NT I , T , Second, recourse to internationally agreed standards pro- to internationally agreed standards Second, recourse to in- most important, a commitment Third, and perhaps First, by relying on external standards of reference of reference of standards external on by relying First, ILLENNIUM 250. Sepet v. Sec’y of State for the Home Dep’t, [2001] EWCA (Civ) 681, 248. also affect the way that coun- The same problem of subjectivity might 249. James C. Hathaway, 247. James C. Hathaway & Michelle Foster, UDGES [66] (appeal taken from Immigr. Appeal Trib.) (U.K.) (“However wide the canvas facing the judge’s brush, the image he makes has to be firmly based on some conception of objective principle which is recognized as a legiti- mate source of law.”). sel frames a particular case. [2000] EWCA (Civ) 3009, [3] (appeal taken from Immigr. Appeal Trib.) [2000] EWCA (Civ) 3009, [3] (appeal in the basis on which the present (U.K.) (“More generally, there is, I suspect, assumption as to the extent to case has been argued before us an inbuilt practices should be permitted in a which homosexuality and homosexual modern State.”). Law: What Refugee Judges Can Contribute J M motes an interpretation of the Refugee Convention that is sen- of the Refugee Convention motes an interpretation by what they that states can only be bound sitive to the reality have agreed. of principle, but is also This is not only a matter “strategically wise” with non-discrimination and terpret the nexus grounds in line human rights law enables related principles of international of refugee law to evolve in a the primary delimiting criterion contextually sensitive way. law is Because non-discrimination respond to those forms of specifically designed to identify and unacceptable by the interna- disfranchisement agreed to be perfect basis to give sub- tional community, it provides the drafters to limit stance to the intention of the Convention’s 2012] applicability,” “universal as inappropri- in accepted legal standards pretation grounded beyond their remit. ately activist or otherwise \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 69 8-MAR-12 9:05 Convention grounds and international human rights law pro- rights law international human grounds and Convention making. decision and consistent motes objective This objec- be- decisions the risk of conflicting reduces tive framework jurisdictions. indeed within, tween, and limits the scope It also under- to import their own subjective for decision makers what might into their consideration of standings of sexuality interest of “sexual orientation.” fall within the protected Group 31420-nyi_44-2 Sheet No. 39 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 39 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 39 Side B 03/19/2012 11:22:47 R is and [Vol. 44:315 HJ and HT and S395 AND POLITICS Indeed, senior courts were per- Indeed, senior 251 252 INTERNATIONAL LAW text accompanying notes 34–35. . [6] (Lord Bingham). This conceptualization of the Convention Id See supra Our concern with the decisions in Our concern with 251. 252. mirrors the teleological approach taken by the International Court of Jus- mirrors the teleological approach taken Continued Presence of South Af- tice. Legal Consequences for States of the Security Council Reso- rica in Namibia (South West Africa) notwithstanding Aegean Sea Continental Shelf Case lution 276, 1971 I.C.J. 16, 31 (June 21); (Greece v. Turk.) 1978 I.C.J. 3, 32 (Dec. 19). The European Court of Human Rights has also taken a similar approach. Goodwin v. United King- dom, 35 Eur. Ct. H.R. 18, ¶ 74 (2002). 384 of civil forms flows from risk whose to persons status refugee fundamental. status deemed or political grounding inter- By or political status forms of civil of both protected pretation rights human in international inherent therein the activities as a living instru- to “be seen enable the Convention law, we over does not change its meaning the sense that while ment in will.” time, its application \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 70 8-MAR-12 9:05 not the adoption of a very vigorous (and yes, liberating) view of a very vigorous (and yes, liberating) not the adoption interest of to fall within the protected of behavior understood “sexual orientation.”is that the Australian and Rather it any princi- courts did so without providing United Kingdom position that departure from the accepted pled basis for their grounds are to be conceived the Refugee Convention’s nexus principles.in line with non-discrimination that By suggesting protected under the rubric of a boundless range of activities is created a schism between sexual orientation, the courts have in cases based on a claim- the understanding of nexus adopted (where protected activities ant’s religion or political opinion to evolving norms of interna- are circumscribed by reference and cases based on a claim- tional non-discrimination law), there is to be, it seems, no ant’s sexual orientation (where principled circumscription). reason There may be some good categories—forfor differentiating between these example, like the truly innate and un- that sexual orientation is more and nationality than like re- changeable characteristics of race are immutable only in the ligion or political opinion, which an unacceptable human sense that disassociation imposes rights cost. in fact But if this (or some other) justification was suaded to embrace sexual orientation as a form of “particular sexual orientation as a form suaded to embrace of on the grounds of the consonance social group” precisely of with contemporary understandings that characterization law. non-discrimination 31420-nyi_44-2 Sheet No. 39 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 39 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 40 Side A 03/19/2012 11:22:47 385 for ex- are far- , and made an HJ and HT HJ and HT, HJ and HT, Yet less than four 254 and , handed down less than , handed down less HJ and HT TM S395 “does not of course mean that , Justice Elias expressed his concern , Justice Elias expressed ] is not limited just to sexual orientation limited just to sexual ] is not HJ and HT QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER HJ and HT HJ and HT There has however been considerable concern and been considerable concern There has however More recently still, the English High Court suggested More recently still, the English . [40]. 256 Id 253 255 While on the surface having generated a legal muddle, it While on the surface having generated In practice, the decisions in the decisions In practice, 256. Yameen v. Sec’y of State for the Home Dep’t, [2011] EWHC (QB) 254. 255. RT (Zim.) v. Sec’y of State for the Home Dep’t, [2010] EWCA (Civ) 253. Dep’t, [2010] EWCA (Civ) TM (Zim.) v. Sec’y of State for the Home ample, the English Court of Appeal noted that “[p]lainly the that “[p]lainly of Appeal noted English Court ample, the [ ratio of the Conven- to all grounds covered by cases but will apply tion.” reaching. to consider In the first decision 2250, [69] (U.K.). 1285, [32], [2011] Imm. A.R. 259 (appeal taken from Asylum & Immigr. Trib.) (U.K.). 916, [38] (appeal taken from Asylum & Immigr. Trib.) (U.K.). 916, [38] (appeal taken from Asylum & is at least possible that this confusion was explicitly sown by the is at least possible that this confusion Kingdom Supreme Court). courts (or at least, by the United lower courts to jettison the Was the goal perhaps to encourage the nexus clause and inter- previously accepted link between 2012] articulate to had a responsibility they the courts, on by relied it. \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 71 8-MAR-12 9:05 the punishment of any form of sexual behaviour or of any the punishment of any form of or other opinions” is pro- manner of expressing religious tected. that the decision in confusion surrounding the judgment’s unqualified vision of the judgment’s unqualified confusion surrounding protected activities. In the case of months later, in another political opinion case, the same court months later, in another political that there might be limits on seemed to reject the suggestion that “[Lord Rodger’s] com- protected activities, observing right of a gay man to live ments on what was involved in the to see where he would have ‘freely and openly,’ make it hard ‘marginal’ actions or activi- drawn the line between ‘core’ and ties.” a month after about the “far-reaching” language of about the “far-reaching” standards to international human rights attempt to employ activity in the protected and unprotected draw a line between “if the pro- opinion case, observing that context of a political activity in the the margins, persistence in the posed action is at being perse- harm is not a situation of face of the threatened cuted and does not attract protection.” 31420-nyi_44-2 Sheet No. 40 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 40 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 40 Side B 03/19/2012 11:22:47 [Vol. 44:315 AND POLITICS or, indeed, if they wished to or, indeed, if they 258 178–81 (2006). OVERING , C INTERNATIONAL LAW OSHINO rule for gay claimants, shouldn’t that position have rule for gay claimants, shouldn’t Y ENJI K 257 However, if the Australian and British courts intended to Australian and British courts intended However, if the But now I must temper passion with realism. I believe we should to protect traditional adopt a group-based accommodation model civil rights groups from covering demands.equal I believe with to adopt this course. conviction, however, that courts are unlikely American society will in- The explosive pluralism of contemporary politics—thereexorably push this country away from group-based much less to protect.will be too many groups to keep track of, In- look more like American deed, I expect English jurisprudence to jurisprudence fifty years from now than vice versa. Americans are already sick to death of identity politics; the courts are merely fol- lowing suit. 258. acknowledges, that It is important to recall, as Yoshino forthrightly 257. . at 183. there is no sign that law is likely to shift away from its present focus on the there is no sign that law is likely to shift strength of principled arguments protection of immutable identity, the favoring such a shift notwithstanding: Id unleash such a fundamental challenge to non-discrimination unleash such a immutability law grounded in 386 liberta- of a more favor norms in non-discrimination national of equality?rian understanding indeed, principled There are, of non-discrimination understanding to argue for an grounds characteris- protection of immutable grounded in the law not (pre- difference and protects which instead celebrates tics, but of the rights duty not to infringe subject to the sumably others). stirring liberation mani- In this regard, Lord Rodger’s focus of non- Yoshino’s argument that the festo echoes Kenji identity is on the protection of immutable discrimination law an “ac- that we should instead embrace unnecessarily cribbed, conformity under which demands for commodation model” bear the only if those arguing for the same are countenanced conversa- in what he terms a “reason-forcing burden of proof tion.” \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 72 8-MAR-12 9:05 encourage a divorce of the nexus clause from non-discrimina- encourage a divorce of the nexus position have been made tion law altogether, ought not their clear, and expressly justified? intend to And if they did not but simply to establish a launch such a radical transformation, sui generis risks of such a conceptual been forthrightly stated, and the schism addressed? 31420-nyi_44-2 Sheet No. 40 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 40 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 41 Side A 03/19/2012 11:22:47 387 HJ and and are, of course, S395 HJ and HT are watershed decisions, and S395 ONCLUSION HJ and HT C In formulating what has become a legal what has In formulating 259 and QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER S395 “Hard cases, it has frequently been observed, are apt to been observed, it has frequently “Hard cases, The circumstances of The circumstances In the face of such a clearly correct result, we may appear In the face of such a clearly correct error to allow our But it would in our view be a serious meant that gay men seeking relief from the misery of a life meant that gay men seeking relief 259. Winterbottom v. Wright, (1842) 152 Eng. Rep. 402 (Exch.) 406; 10 M. & W. 109, 116 (Rolfe J.). 2012] bad law.” introduce \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 73 8-MAR-12 9:05 adage, Judge Rolfe expressed his concern that the faithful ap- that the faithful his concern Rolfe expressed adage, Judge of legal rules—inplication on privity of con- that case, rules tract—woulda deserving litigant, deny relief to require him to relation- who had no direct contractual an injured coachman repair firm. ship with the negligent quite different. as the courts’ misapplica- Despite what we view to iden- fear” test, failure accurately tion of the “well-founded of the risk of being persecuted, and disregard tify the relevant require- set by the refugee definition’s nexus principled limits asylum ultimately ruled in favor of granting ment, the courts to the applicants. As such—and contrast to the dis- in stark would receive of concern to Judge Rolfe who abled coachman no relief—the rules in misapplication of legal HT in Bangladesh, Cameroon, of perpetual enforced concealment freely and openly . . . to be as and Iran would be able “to live . . . to live their lives in the way free as their straight equivalents without fear of persecu- that is natural to them as gay men, tion.” recognition of refugee sta- churlish to insist that the basis for tus in such cases be revisited. clear We wish to be absolutely the human rights community, that, like nearly everyone else in and British courts’ rejec- we deeply admire both the Australian avert persecution, and more tion of a “duty of discretion” to the context-sensitive applica- generally their commitment to tion of refugee law to gay applicants. cases to override our intellec- instincts simply to celebrate the refugee law evolves in a way tual responsibility to ensure that that is both principled and sustainable. is no While there question that Oliver Wendell Holmes famously cautioned that “[g]reat cases Oliver Wendell Holmes famously like hard cases make bad law. For great cases are called great, 31420-nyi_44-2 Sheet No. 41 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 41 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 41 Side B 03/19/2012 11:22:47 [Vol. 44:315 260 AND POLITICS INTERNATIONAL LAW As we have been at pains to show, the courts’ errors are to show, the courts’ been at pains As we have harms, well-founded fear of exogenous No, there is no status is owed when- And no, it is not the case that refugee 260. N. Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., whether actual or imputed—thatis the lynchpin to refugee dissenting). 388 of some because . . . but importance of their by reason not to which appeals interest of immediate overwhelming accident the judgment.” and distorts the feelings gay both for consequences, real and detrimental not without seek- and for persons medium term) (at least in the claimants grounds on the basis of other Convention ing refugee status already shown).(as decisions have Most important, the cor- advocated errors in line with the framework rection of these gay applicants compromise the ability of here will in no sense prospect of asylum when faced with the and others to access their safety. to avert clear threats to indefinite self-repression would in fact or beatings, where a gay man such as prosecution to escape such threats.opt for seclusion But, given the trau- (anxi- normally follow from self-repression matic effects that an alternative or worse) there is ety, paranoia, disassociation, traditional link between per- and solid basis, grounded in the of human rights law, to affirm secution and risk to core norms refugee status. harm Because the risk of severe psychological to contravene the right to has been authoritatively interpreted or degrading treatment, protection against cruel, inhuman is most likely to be well- this is the persecutory risk that founded in such cases. by reason only of an applicant ever serious harm is threatened that is vaguely or stereotypi- having engaged in some activity (or any other protected cally associated with homosexuality ground). law, the Drawing on norms of non-discrimination Convention definition was “for reasons of” criterion in the of the beneficiary class. conceived as a principled delimitation form of immutable identity—This means that it is ordinarily a status is owed only where risk status. In general terms, refugee is or what he believes. ensues because of who the applicant identity per se but rather of Where risk is the product not of the nexus requirement having engaged in a particular activity, can still be met. But this is so only when the activity engender- \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 74 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 41 Side B 03/19/2012 11:22:47 Side B 03/19/2012 Sheet No. 41 31420-nyi_44-2 31420-nyi_44-2 Sheet No. 42 Side A 03/19/2012 11:22:47 389 QUEER CASES MAKE BAD LAW BAD MAKE CASES QUEER Refugee law is not an all-embracing remedy for every cir- remedy law is not an all-embracing Refugee to acknowledge that We will, however, occasionally have 2012] protected to the intrinsic to be deemed is fairly the risk ing identity. made available. freedom is not in which full cumstance This real- to the dominant blind us should not, however, realization but is be imperfect, may law fairly interpreted ity: refugee commit- means by which human rights nonetheless a powerful real in the lives of those fundamentally ments can be made their home states.disfranchised in It is a sign of strength that facing the not just gay applicants refugee law encompasses vigilante under anti-gay laws or rabid clear risk of prosecution prisoner’s persons who would opt for the violence, but also well-being to their own psychological dilemma of sacrificing avert such harms. of refugee law to Similarly, the commitment class on to circumscribe the beneficiary deny states the right non-discrimi- by reference to principles of any basis other than identity and both forms of fundamental nation law, including of such protected identi- engagement in activities at the core self-interested retrogression. ties, is a critical bulwark against for freedom pull at our heart- some persons whose aspirations even these progressively inter- strings may not be able to meet preted tests. Law is imperfect, and international law—subject of an extraordinarily diverse to the need to secure the consent community of states—ismore imperfect than most perhaps law. applica- It is nonetheless clear that the context-sensitive states can yield powerful re- tion of norms already agreed by sexual minorities from ongo- sults, including the liberation of ing self-repression. \\jciprod01\productn\N\NYI\44-2\NYI202.txt unknown Seq: 75 8-MAR-12 9:05 31420-nyi_44-2 Sheet No. 42 Side A 03/19/2012 11:22:47 Side A 03/19/2012 Sheet No. 42 31420-nyi_44-2