On 11 August 2023 Rainbow Path submitted to the Select Committee considering a petition calling for a Rainbow subcategory within the current NZ Refugee Quota programme. On 23 September, the Labour Party announced its policy to implement this change if re-elected. As Rainbow Path’s submission to the Select Committee noted, there are other steps needed for such a policy to make a meaningful difference for Rainbow asylum seekers and refugees. We reiterate our call for the Ministry of Business, Innovation, and Employment (MBIE) to develop a regular consultation mechanism with Rainbow Path and other Rainbow refugees that would:

• identify ways to collect and monitor data about the extent to which Rainbow refugees are being resettled in Aotearoa, as baseline information for policy decisions including the 2025 review of subcategories within the New Zealand Refugee Quota Programme;
• discuss the extent to which current refugee status determination and resettlement pathways are safe and accessible for Rainbow people, as a basis for identifying potential improvements;
• consider ways to remove financial barriers preventing Rainbow communities from participating in the Community Refugee Sponsorship programme;
• explore how the Refugee Resettlement Strategy can better meet the specific needs of Rainbow refugees;
• identify ways that Immigration NZ can enable trans and intersex asylum seekers and refugees to have useable official documents with their correct name and gender marker; and
• identify and address other legal or policy issues that have a specific or disproportionate impact on Rainbow refugees and asylum seekers, for example current family reunification and partnership visa settings.

Rainbow Path’s full submission to the Select Committee is copied below.

Submission to the Select Committee

11 August 2023

Camilla Belich

Chair

Education and Workforce Committee

Email: ew@parliament.govt.nz

Dear Hon Camilla Belich,

Rainbow Path welcomes the opportunity to provide a written submission to the Education and Workforce Committee on the petition and proposal to create a Rainbow subcategory within the current New Zealand Refugee Quota Programme.

It is important that the lived experiences of Rainbow refugees and our organisations are prioritised in this discussion. This is not only to ensure the voices of refugees are heard, but also so that legal, policy or regulatory proposals are based on an accurate assessment of the current problems, and of the likely effectiveness of any proposed solutions.

Background information about Rainbow Path

Rainbow Path is a community and a peer support and advocacy network for LGBTQIA+ refugees and asylum seekers living in Aotearoa. We are led by Rainbow people with lived experience as refugees and asylum seekers, with support from other Rainbow human rights defenders. Rainbow Path provides social support and rights-based information in-person and online and runs Rainbow-competency training for refugee sector organisations and refugee-competency training for Rainbow community organisations. We also participate in government consultations including the National Refugee Resettlement forum and the Auckland Asylum Forum.

Rainbow Path empowers Rainbow refugees and asylum seekers to lead advocacy on our human rights. Our advocacy work, including this submission, is based on the practical realities of what it means to be a Rainbow refugee. For quota refugees, that includes Rainbow refugees’ experiences seeking support from the United Nations refugee agency (UNHCR), our assessment by Immigration NZ before travelling to Aotearoa and the resettlement support we receive upon arrival here.

Rainbow Path is also aware that one of our Steering Committee members, Eli Rubashkyn, was invited to send the Committee an individual submission. As that submission covers some background information about Rainbow refugee initiatives in overseas jurisdictions, we have not focused on that material in our submission.

Heightened challenges faced by Rainbow refugees

Rainbow Path has read the submissions from Hafsar Tameesuddin from the Asia Pacific Refugee Rights Network and from the Ministry of Business, Innovation and Employment (MBIE). We strongly agree with the statements in both submissions about the heightened vulnerability and challenges faced by LGBTQIA+ refugees in our countries of origin, transit countries and when resettled here in Aotearoa. Those risks are even greater for Rainbow human rights defenders.

Some of us are forcibly displaced because of our ethnicity and religion or due to war and conflicts. We just happen to be Rainbow as well, as there are Rainbow people in all populations. But even if our original persecution was not about being Rainbow, at each stage of our journey to safety we face extra challenges because of our sexual orientation, gender identity or expression, or variation of sex characteristics (SOGIESC status).

We often have no family or community support when we are trying to flee persecution, and we may be fleeing from them as well. Most of us do not feel safe to be with our ethnic or religious communities, and we have to hide our Rainbow identity, both for our own safety and to protect our family or a partner.

The country we are fleeing may criminalise our sexual orientation under so-called sodomy laws and criminalise our gender identity or expression under so-called ‘cross-dressing’ or ‘public immorality’ laws, which are often inherited from colonisation. There may also be honour killings against Rainbow people under religious laws. Our family and wider community may shun intersex people born with variations of sex characteristics, and if there are any available medical interventions, they are most likely to be harmful and non-consensual. Most countries we have fled from do not allow us to change our name or gender marker on ID cards or passports that we must show to cross borders and when we make our refugee claim. This exposes trans people and those intersex people who do not resemble their ID documents to elevated risk.

There is also no visibility of Rainbow people and our explicit rights to protection within the humanitarian sector. Despite efforts by a few agencies including Rainbow NGOs, there are often no safe places for Rainbow people in refugee camps. In many other countries we wait in the local community we have fled to, we often have no right to work and are vulnerable to harassment including from police, especially in places where we are criminalised or have no anti-discrimination protections and religious and other community leaders sanction violence against us.

After such a long journey when it has never been safe to disclose who we are, we often don’t know if and when it’s safe to disclose being Rainbow. We may not have the words to describe who we are. There is often a lot of internalised shame. Our first languages often only have derogatory terms for Rainbow people. Some of us come from cultures that do have traditional terms for some Rainbow identities, but these identities are often different from western, English language concepts and terms. When we seek asylum or reach the country of resettlement, we may only have just started to explore our sexuality, gender identity or expression or what it means to be intersex.

Once we are here in Aotearoa, service providers and government agencies often assume our main support network will be our family or other migrants from our country of origin. For example, we may be housed or resettled together with our own ethnic community. But for Rainbow refugees this is likely to result in more harm, especially if we are resettled outside of main cities where there is no access to support from Rainbow communities.

All these factors mean that many Rainbow refugees hide or delay disclosing our Rainbow identities, especially if we are also able to seek asylum under other grounds of persecution. It is vital that refugee status determination processes recognise these barriers and do not assume late disclosure raises credibility issues, and that all refugee resettlement pathways are safe and accessible for Rainbow people.

A Rainbow subcategory within the current New Zealand Refugee Quota Programme

Rainbow Path welcomes the intention of the petition and the attention it gives to the huge gaps in responses to the persecution and displacement of Rainbow refugees.

We strongly support identifying and implementing safer and faster pathways for Rainbow refugees and asylum seekers’ resettlement in Aotearoa. A Rainbow quota is one of the potential solutions. Our concern is that, on its own, it is unlikely to be effective. We make this statement cautiously and would have huge concerns if it is seen as an excuse to merely maintain the status quo. Instead, it is the basis of our call for genuine engagement with Rainbow refugees and organisations about the mix of existing and new policy levers needed to create safer and faster pathways for Rainbow refugees to be resettled in Aotearoa.

In its submission, MBIE raises potential concerns about whether a Rainbow subcategory would create any unintended consequences. The two examples MBIE cites are either “inadvertently putting people at greater risk as their status may be more visible; or alternatively creating incentives for people to claim to be LGBTIQ+ to gain access to priority resettlement”. 

Rainbow Path supports informed decision-making but notes that protecting the privacy and safety of Rainbow refugees is a priority, whatever pathways are being considered. Furthermore, privacy of individuals does not mean that UNHRC has the luxury of shying away from reaching out to support Rainbow refugees. One of the reasons why there has been community support for a separate Rainbow refugee subcategory is because it offers powerful symbolism and hope, in the context of Rainbow people fleeing countries that have ignored the human rights of their Rainbow citizens and other Rainbow people residing there. 

Many Rainbow refugees come from countries where there are no positive terms or messages for Rainbow people and our human rights. Therefore, it is vital that the human rights of our communities, and the protection from violence and discrimination guaranteed under international human rights law, is visible in UNHCR’s and MBIE’s work. 

We would also like to point out that simply creating a subcategory does not mean that anyone who is a member of the relevant marginalised, prioritised group will be eligible to apply. The refugee resettlement system has many checks and balances. Only those Rainbow people who have been recognised as refugees by UNHCR because they are fleeing persecution will have access to this pathway. Rainbow refugees are also not the only group whose protected status is based on self-identification. This is also the situation for many people who are persecuted because of their political opinion or religious beliefs. 

Even if New Zealand were to adopt a Rainbow refugee subcategory, it is unlikely to be developed in the short term. Therefore, it is vital that immediate attention is given to exploring how other existing pathways can be used to resettle Rainbow refugees speedily and safely in Aotearoa.

Lack of data about the use of existing options

MBIE’s submission to the Committee notes that currently most Rainbow quota refugees “are normally referred under general protection or as urgent or emergency cases where they are submitted outside the normal selection mission cycle”.

In Rainbow Path’s experience, most of our members who have come to Aotearoa fleeing persecution because of their sexual orientation, gender identity or expression or variations of sex characteristics have sought asylum in Aotearoa, not overseas through UNHCR. Some of our members who arrived as quota refugees are very prominent within refugee and/or Rainbow communities. Despite that visibility, they have only been contacted by a small number of other quota refugees who sought asylum because of persecution based on their Rainbow identity. This raises concerns for us about the extent to which the current general protection and urgent or emergency pathways are being used effectively to meet the needs of Rainbow refugees.

Rainbow Path strongly supports the use of discretionary humanitarian visas to respond to specific emergency situations. Our concerns are the absence of data about whether these visas are being used effectively for Rainbow refugees from New Zealand’s current priority countries (Afghanistan and Ukraine), and whether the specific situation for Rainbow people in other countries (for example Uganda) is taken into account. New Zealand can learn from the experience of other countries, particularly Canada. We are aware, for example, that in early 2022, the Canadian Government decided to admit an additional 600 LGBTIQ+ Afghan refugees across all of its resettlement pathways.

Rainbow Path is frequently and increasingly contacted by Rainbow people in high-conflict countries overseas or those where Rainbow people generally, or trans people specifically, are targeted under laws. This includes being contacted by people in Afghanistan and Ukraine, seeking support because of their heightened vulnerability. These approaches have grown this year, particularly with heightened attacks against trans people in most regions. Rainbow Path is only able to provide people with publicly available information from UNHCR and Rainbow community organisations such as ORAM and Rainbow Railroad. We would welcome the opportunity to work with UNHCR and MBIE on ways to safely enable Rainbow asylum seekers and refugees to have the same opportunity to access existing emergency pathways.

Rainbow Path recommends that MBIE is required to collect and monitor data about the extent to which Rainbow refugees are being resettled in Aotearoa, as baseline information for identifying and then addressing barriers and gaps. This information will be necessary for any future policy work including the 2025 review of subcategories within the New Zealand Refugee Quota Programme.

While UNHCR does not currently collect SOGIESC data, we note that the 2021 Global Roundtable on Protection and Solutions for LGBTIQ+ People in Forced Displacement prioritised such data collection in its recommendations, including to:

• Create environments in which it is safe for LGBTIQ+ persons to share their experiences . . . (Section C: Recommendation 1)
• Encourage collection of data on the experiences of LGBTIQ+ people by supporting humanitarian staff to overcome the fear of failure and to effectively mitigate fear of doing harm (Section C: Recommendation 2) and
• Conduct appropriate respectful collection of data, exercising extreme care for the safety of individuals and security of their personal information, disaggregating data, and engaging in careful stewardship, including anonymization and access controls. (Section L, recommendation 2).

Lack of resourcing for community-based pathways

Two Rainbow Path members participated in the 2021 Global Roundtable on protection and solutions for LGBTIQ+ people in forced displacement. MBIE’s written submission mentions one of the recommendations from that report, namely:

“. . .  to consider a Humanitarian Visa Pathway for LGBTIQ+ persons with acute protection risks in crisis situations (such as for trans and gender non-conforming individuals), whereby vetted civil society organisations can refer LGBTIQ+ displaced persons in origin or asylum countries to a community sponsorship program”.

As noted above, Rainbow Path welcomes the opportunity to explore the use of a Humanitarian Visa Pathway for Rainbow people. However, it is vital to realise that where community sponsorship programs have been developed for Rainbow refugees in other countries, they have been linked to well-resourced Rainbow community organisations. These groups have the funding, staff and accommodation to support Rainbow refugees. There are no equivalent Rainbow organisations with such resourcing in Aotearoa.

Rainbow Path has met with HOST International Aotearoa to discuss the Community Refugee Sponsorship programme here and encouraged Rainbow community organisations to attend their informational webinar. However, without resourcing for Rainbow community organisations here, it is not feasible for Rainbow communities to take on the costs attached to this model.

The importance of meaningful participation by Rainbow refugees

Finally, at the heart of Rainbow Path’s submission is the necessity for MBIE to engage meaningfully with Rainbow refugees and organisations about resettlement pathways for Rainbow refugees. This is vital to ensure that proposals will actually work for Rainbow refugees.

Rainbow Path recently presented to the National Refugee Resettlement Forum. We appreciated the opportunity to meet with other refugees and refugee organisations. However, there were few decision makers in the room.

Our main advocacy work over the last four years has been attempting to resolve the lack of legal gender recognition options for asylum seekers and refugees living in Aotearoa. That work covers the portfolios of both Immigration NZ and the Department of Internal Affairs (DIA). Rainbow Path collaborated with DIA to co-organise and co-facilitate community consultations about legal gender recognition solutions for people born overseas. While that work was ultimately deferred, the process itself is one that Rainbow Path valued and that enhanced the advice DIA received for its policy work.  We have never had any similar high-level engagement with Immigration NZ / MBIE about the role it can play in enabling Rainbow asylum seekers and refugees to have official documents with their correct gender marker and/or name. 

Rainbow Path recommends that MBIE works with Rainbow Path to develop a regular consultation mechanism on Rainbow refugee resettlement issues. Its purpose could include, for example, to:

• identify ways to collect and monitor data about the extent to which Rainbow refugees are being resettled in Aotearoa, as baseline information for policy decisions including the 2025 review of subcategories within the New Zealand Refugee Quota Programme;
• discuss the extent to which current refugee status determination and resettlement pathways are safe and accessible for Rainbow people, as a basis for identifying potential improvements;
• consider ways to remove financial barriers preventing Rainbow communities from participating in the Community Refugee Sponsorship programme;
• explore how the Refugee Resettlement Strategy can better meet the specific needs of Rainbow refugees;
• identify ways that Immigration NZ can enable trans and intersex asylum seekers and refugees to have useable official documents with their correct name and gender marker; and
• identify and address other legal or policy issues that have a specific or disproportionate impact on Rainbow refugees and asylum seekers, for example current family reunification and partnership visa settings.

Thank you again for the opportunity to make this submission. Rainbow Path realises that the Select Committee’s time is very constrained in the lead-up to the general election. However, we would welcome any opportunities now or in the future to meet with the Select Committee or individual members to discuss and progress these issues.

Ngā mihi

Rainbow Path’s Steering Committee