Migration Legal Services for LGBTIQA+ Individuals Seeking Safety in Australia

By Ava Gordon, B.A (Institut d’Etudes Politiques de Paris), Emigrate Lawyers

LGBTIQA+ individuals from around the world come to Australia for a variety of different reasons, all of which are unique and personal to the individual. That being said, it is not uncommon – rather, it is actually fairly often – that LGBTIQA+ individuals arrive in Australia from their home country and realize that they cannot return if they want to be able to live freely and openly as LGBTIQA+.

I am speaking from experience, being an openly gay woman and having worked as the Client Executive at Emigrate Lawyers for a while now, a firm that not only welcomes LGBTIQA+ clients but that has multiple employees who are part of the LGBTIQA+ community. The circumstances surrounding why LGBTIQA+ folks come to Australia can vary, but the reasons we see at our firm are often the same: they CANNOT go back to their home country, fearing persecution or death on the grounds of their sexuality or gender identity if they do.

That is where we come in. For many LGBTIQA+ individuals, coming to our law firm is already a big step. Being and feeling safe enough to disclose to a lawyer one’s sexuality is not something that everyone is accustomed to being able to do, and our firm recognizes the significance of being possibly one of the first accepting, friendly faces that someone from the LGBTIQA+ community may meet.

Oftentimes, LGBTIQA+ individuals come to us fearing that they have met a dead end because their current visa is expiring, or their original Protection Visa request was refused by the Department of Home Affairs, etc; that there are no options for them but to return home and be jailed, killed, forcibly married, “correctively” raped, or otherwise, but we are here to tell you that THERE ARE OPTIONS FOR YOU. If the alternative to you being in Australia is persecution or otherwise, then we want you to know that there are legal pathways available to you that a legal team can help with.

If you are an LGBTIQA+ individual who is nervous about seeking help or coming forward, I want to provide a case study from my time at Emigrate Lawyers to demonstrate the range of assistance we can provide LGBTIQA+ individuals who come from discriminatory countries.

All names have been changed for confidentiality

Zhao called our firm a few weeks ago, looking for help. His student visa was close to expiring, and he did not know how he would be able to stay in Australia. His case seemed relatively straightforward at first glance: we have plenty of clients who are on Student Visas and are looking for a way to stay. I continued with my normal intake questions, including asking about Zhao’s relationship status. Zhao then confided in me that he has a boyfriend.

Zhao did not think the information about his partner was relevant, as a Partner Visa pathway was only an option if one of them was either an Australian citizen or had Australian Permanent Residency, which did not apply in their case. However, there was another alternative.

Homosexuality is legal in China. That being said, depictions of romantic / sexual relationships between LGBTIQA+ members are state censored. Gay people cannot adopt a child together. There are no legally encoded protections against discrimination that LGBTIQA+ individuals may face when applying for housing, a job, or otherwise. According to EqualDex, an international LGBTIQA+ rights database, 80.4% of the Chinese population opposed the justification of homosexuality, as of 2022.

Although Zhao did not believe his sexuality was relevant to his ability to remain in Australia, a Protection Visa pathway was available to him due to the LGBTIQA+ community’s status as a persecuted group in China.

Under the Migration Act of 1958, Australia has protection obligations towards a person if they fear legitimate persecution upon returning to their home country due to either their race, religion, nationality, political opinion, or membership of a particular social group.

Though it might not seem obvious at first, being a member of the LGBTIQA+ community qualifies under being a member of a particular social group, and therefore, if you are coming from a country that persecutes the LGBTIQA+ community, YOU DO HAVE A VALID PROTECTION CLAIM ON THE BASIS OF YOUR SEXUAL ORIENTATION.

I will provide a list of some of the countries some of our LGBTIQA+ clients have come from seeking protection, as I believe it is important to recognize how wide the spectrum of discriminatory countries really is.

We have had LGBTIQA+ Protection Visa clients from:

• Mexico
• China
• Myanmar / Burma
• Kenya
• Mongolia
• Sri Lanka
• India
• Pakistan
• Iran
• Thailand
• Malaysia
• Indonesia
• North Macedonia
• Cambodia
• Bangladesh

LGBTIQA+ folks come from all around the world, and claiming a protected status on the basis of your sexuality does NOT mean you have to come from a country where you will receive the death penalty for being gay. In the case of Mexico, gay marriage is actually LEGAL, but the widespread public attitude towards the LGBTIQA+ community still counts as persecution.

The process for LGBTIQA+ folks can be daunting – to make it easy our Principal Lawyer Madhab Kharel has written a blog title LGBT Protection Visa: A Pathway to Safety in Australia, explains the process for you.

At Emigrate Lawyers, we have built up years of experience in dealing with LGBTIQA+ Protection Visa clients. They come from all over the world, with different sexualities and gender expressions. Our job as a law firm does not end with legally representing our client on their LGBTIQA+ Protection Visa journey, as this is just the beginning. We are there for you, not just as lawyers, but as a support team who is there to assist you through the process from start to finish, to provide an ear to listen with and a hand to hold as we guide you through the necessary steps to obtain a Protection Visa.

Like I mentioned in the beginning, clients come to us feeling as though they are at a dead end, when in reality they do not know that their sexuality potentially qualifies them for protection under Australian law.

On behalf of myself and the entire team at Emigrate Lawyers: you are welcome here, you are seen and heard, and our job is to make sure that you can live without fears of persecution as a member of the LGBTIQA+ community.