Gender agenda

You might think a service called Gender Clinic belongs in a hospital or allied health setting. But in the context of the ASRC’s Human Rights Law Program (HRLP) it operates as a unique and highly sought after service that is not replicated anywhere else in Australia.

In short, Gender Clinic offers specialised immigration advice and legal assistance to clients (women and LGBTI-identifying) who have gender-based claims for asylum. The ASRC’s Gender Lawyer Alice McBurney explains that such clients often face ‘additional vulnerability factors and complexity in terms of their cases.’

In 2017 Alice directly advised, assisted or represented 126 clients, both through the limited assistance model of Gender Clinic and through the management of an ongoing caseload of clients being offered full representation. Moreover, 37 clinics were held offering a total of 230 appointments. Off the back of such a demonstrated need for the specialised service, last year’s funding from Victoria’s Department of Justice and Regulation has been renewed for 2018-19.

Alice identifies family violence as one of the more prevalent claims to arise in gender cases. This violence might involve a partner and/or other family members. In these cases, the state may have failed to protect the victim. ‘But it can be difficult because often countries will be taking steps to make reforms in relation to the rights of women,’ Alice says.

‘Yet in practice what the authorities are doing is not consistent with these high-level changes. Decision-makers often assess that the state is able to offer protection, even when such changes require cultural change that can take decades or longer. That really does pose a big challenge for our clients who are from countries where there is some kind of positive movement but they are still not able to access state protection.’

The violence may have occurred in the country of origin but it often continues in Australia. The Gender Clinic offers women a safe space to raise such claims. ‘What we often see is that the family will have lodged an application with the husband as the primary applicant raising the claims. The women and children may not have had a voice in that process. Their claims have not been assessed,’ she says.

There are usually other factors that intersect with gender and/or sexuality that put women at greater risk in their home countries, including religion, race and political opinion.

Alice explains, ‘If a woman is a member of a religious minority and that religious minority is being targeted by the authorities, women might be more easily identified than men, just in terms of the way that they dress. Or women political activists may be targeted because they are not accepted to have voices in the public sphere and are perceived as threatening established power structures. Then there are the impacts of a woman being arrested and put into prison: they’re at risk of very particular kinds of gender-based violence, including sexual violence. So there’s a whole range of factors that put them at greater risk. And it’s really important that these intersections are considered in people’s claims.’

‘Increasingly we are also seeing situations where families are not being considered together as a family unit because some family members have lodged applications at different times under different legal regimes. It raises serious concerns about the separation of the family unit, including the separation of mothers from their young children and whether the Department is considering the best interests of the child.’

Decision-makers are also often not appropriately trained to understand and properly assess the claims raised by LGBTI people seeking asylum.

‘A person’s gender identity and sexual orientation will be interrogated by a decision-maker, often in invasive and inappropriate ways,’ Alice says. ‘Where a person’s story or presentation conflicts with accepted categories, decision-makers will often question a person’s genuineness. Also, the mental or psychological harm that LGBTI people have experienced as a result of not being able to openly express gender and/or sexuality is often not properly assessed, particularly where they do not have legal representation.’

The Gender Clinic has also developed a close working relationship with Anti-Slavery Australia so it can better address the needs of clients who present with issues around trafficking and sexual/domestic servitude.

‘We work with women who have been forced into prostitution in their home country or they have been trafficked or exploited in some way. And they fear that they will be forced back into that situation if they have to go home.’

The service assists clients at any stage of the refugee status determination process. Across the caseload this has meant dealing with a complex array of bureaucracies and legal jurisdictions including the Department of Home Affairs (previously the Department of Immigration and Border Protection), the Administrative Appeals Tribunal, the Immigration Assessment Authority, the Federal Circuit Court, the Federal Court, and the High Court of Australia.

The Tribunal stage currently represents the bulk of the Gender Clinic’s work.  ‘Clients are waiting for their hearing with the Tribunal,’ Alice says. ‘We also assist clients who have had a refusal at the Tribunal and are considering their options after that. Whether or not they’re going to seek judicial review of the Tribunal decision and go through the courts or whether or not a Ministerial intervention request would be appropriate in their case.’

Ministerial intervention under Section 48B of The Migration Act 1958 might be sought when new information has come to light that may affect the refugee status determination, but the applicant is at a later stage in the process and there is no further opportunity for them to have their claims assessed. Alice explains there are often good reasons why some information has not been previously disclosed. ‘It could be at the time a client was experiencing family violence and didn’t have the space or opportunity to disclose it,’ she says. ‘It could be because they’ve received really bad advice from a fraudulent migration agent, and they just didn’t know that disclosing these things were in fact relevant to their case. So there’s a whole range of reasons. But what we’re seeing with those Section 48B requests is that overwhelmingly the current Minister is refusing to intervene in people’s cases – even the most compelling cases.’

Alice is also concerned with the way decision-makers determine credibility in relation to applicants presenting with claims of gender-based violence. ‘A client’s ability to remember what has happened to them and then present it to a decision-maker in a coherent, chronological way is a really big factor in how someone assesses credibility,’ Alice says. ‘And we know that trauma affects a person’s ability to recall events. Often women who have been victims of family violence might present in a way that is quite disengaged when they’re talking about what has happened to them. I’ve been in interviews and hearings where a decision-maker has made comments in their written decision about how a person’s presentation was evasive or lacking in spontaneity as a reason for finding that they are not a witness of truth.’

Of even more concern, especially given the recent focus in Australia on family violence – with the report of the Royal Commission into Family Violence tabled in the Victorian Parliament in 2016 – is that there isn’t a more nuanced understanding in the refugee status determination process of how gender-based violence operates. ‘A lot of decision-makers are not trained in the specifics,’ Alice says. ‘There is this real need for decision-makers to understand the complexity of family violence, and also how authorities in different political, cultural contexts respond to it.’

Working in the asylum seeker space means a lot of factors are beyond Alice’s control, particularly in relation to policies, processes and approaches by decision-makers.

‘While we do have positive outcomes for clients, we are also faced with unfair decisions, often the result of unfair processes. It’s really important to not always think about things in terms of outcomes – in terms of positive decisions – because it can be difficult to have good decisions in these kinds of cases,’ she says. ‘Instead, look at how you’ve worked with your client or what values have been driving your practices and approach and how that, in turn, has assisted your client to feel stronger and more able to navigate the process.’

*Please note: individuals in image are models used to protect privacy

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