I have never heard of him; in fact I don't know a single person who has sought asylum abroad for any reason.

Yeoh applied for asylum after he overstayed his student's visa in 2004. He had had a 2-year visa to study film-making in America.

His case had gone through an immigration judge and later, the Board of Immigration Appeals, both of which come under the US Department of Homeland Security. Both times, he lost.

He then appealed to the US Court of Appeal in San Francisco, which ruled that the immigration judge (IJ) and the Board of Immigration Appeals failed to take into consideration "all the evidence of record". The court then sent the case back to the immigration judge for reconsideration.

As reported in this blog, the Court of Appeal found that

there was no dispute that Yeoh had demonstrated past persecution, as found by the IJ. The only ground for dispute was the issue of fear of future persecution should he return to Singapore. The IJ concluded, correctly according to the court, that there is "no evidence that the government of Singapore is actively seeking out and prosecuting homosexual relationships or individuals engaging in those relationships," and there is "no evidence at all presented that the government of Singapore is prosecuting homosexuals for private acts."

On the other hand, Yeoh did present evidence of unequal or selective enforcement and punishment of gays in Singapore, said the court, including "documents suggesting that (1) gay men are 'singled out as subjects' of a law that is broad enough to include heterosexual conduct; (2) Singapore's Penal Code criminalizes, without an opposite-gender analogue, the abetting of certain male-to-male sexual activity; (3) Singaporean plainclothes police officers routinely pose as decoys and arrest gay men who approach them; and (4) Singapore's sentencing regime permits punishing gay men in a manner that is disproportionate to the crimes they have committed." Although this evidence was introduced, none of it was mentioned in the IJ decision. Thus, "we cannot confidently determine that the IJ fulfilled his duty to consider all the evidence of record," said the court, so the case has to be remanded to the IJ "to consider all record evidence relating to the unequal or selective prosecution or punishment of homosexual males in Singapore and, having done so, to redetermine, in light of the full record, whether Yeoh has met his burden of establishing a 'well-founded fear of [future] persecution' on account of his sexual orientation if forced to return to Singapore."

It would therefore seem that unless the retrial finds that Yeoh faces future persecution if he is returned to Singapore, his case will fail.

While there is plenty of evidence that Singapore discriminates against its gay citizens, persecution is quite a different thing. It would involve specific targeting of persons with arrests, lawsuits and physical threats to life and limb, perhaps economic threats that imperil a person's livelihood as well, whether carried out by the state and its agents, or by non-state actors such as religious vigilantes.

From what I have seen, it should be rare for any gay person to be able to demonstrate a pattern of such behaviour by the state or by any vigilante group today. No doubt, not long ago -- barely 10 years -- the state was actively persecuting gay men. There may however still exist some gay people, e.g. gay Muslim females, who may be able to demonstrate a pattern of persecution by the community in which she lives. We do not all experience Singapore in exactly the same way, so it would be presumptuous of me to rule it out.

(And let's not forget how we are likely to taunt transgendered people or fire them from their jobs because they're "not appropriate to the company image".)

In the report in the New Paper, Dusty Araujo, an asylum documentation coordinator at the International Gay and Lesbian Human Rights Commission (IGLHRC) was quoted as saying that 11 gay Singaporeans succeeded in getting asylum since 1990. These were out of 45 cases filed.

Anxious to defend Singapore's innocence, the New Paper promptly asked the question, "Is there evidence to support this [kind of asylum] claim?"

Page 4 focussed on Sections 377 and 377A of the Penal Code.

Section 377 is the one that prescribes up to life imprisonment for "carnal intercourse against the order of nature", archaic language that basically says that all sex that doesn't potentially produce babies is illegal. This includes oral sex, anal sex, the use of fingers, dildoes, etc whether between 2 men, two women or husband and wife [2]

Of course, since no sexual act between persons of the same sex is potentially capable of producing babies, effectively it makes all sexually active gays and lesbians criminals. Moreover, the penalty is disproportionately severe compared to the zero harm caused (quite the reverse really, there's usually a net gain in happiness) when 2 consenting adults are engaged in the activity whether gay or straight.

Section 377A is an unusual law in that it is inordinately directed at gay men. It makes "gross indecency" between 2 males an offence punishable by up to 2 years' imprisonment. This covers mutual masturbation, frottage, even just looking at each other while standing at the urinals (I'm told there's a precedent for this, arising from an English case.)

Lawyers interviewed by the New Paper however said that prosecution for private consensual acts are almost unheard of unless there has been a complaint. (The "unless" is important, because a search through the case archives will show that people HAVE been prosecuted because someone did complain – something the New Paper didn't highlight.)

There's a consensus among the lawyers that these laws are nowadays only used when non-consensual sex (e.g. with juveniles considered too young by the court to be capable of giving consent) has occurred [3].

Lawyer Nakoorsha Abdul Kadir said if Section 377 or 377A is to be applied to unnatural sex offences involving underaged boys, then perhaps the writing in the law "should be made clearer", with specific reference to underaged boys.

-- The New Paper, 18 Oct 2006, We've not heard of it

Further on in the same article,

Ken, 39, a civil servant, said Section 377A is "unfavourable" towards gays. "Because it says that whatever that is being engaged behind closed doors is also illegal. What people do in private is their own business."

But the police hardly act upon private gay sex unless a complaint is filed.

"Then why have a law with the intent to prosecute (people who engage in private gay) sex?" Ken asked.

-- ibid

The point to remember is this: to say that a law is not normally used is not good enough. The very presence of a law has effects of its own. As Vikram Seth and others said in their open letter to the Indian government [4], "What has to be borne in mind is that whenever any behaviour is identified as a penalisable crime, it gives the police and other law enforcement officers huge power to harass and victimise some people. The harm done by an unjust law like this can, therefore, be far larger than would be indicated by cases of actual prosecution."

Beyond harassment and victimisation, the presence of the law is used to justify a climate of discrimination across many sectors of society both by private citizens and by the state, for example in its refusal to engage constructively with the gay community over HIV, thereby neglecting its duty to provide for public health.

© Yawning Bread