Last edited: July 17, 2004

Al-Fatiha Applauds Australia High Court Decision Granting Refugee Status to Sexual Minorities

LGBTIQ Muslims Call on Nations around the World to Respect Refugee Rights of Sexual and Gender Minorities

Al-Fatiha Foundation, December 10, 2003
Media Contact: Faisal Alam, founder & director
US Cell: 202-271-0067

Al-Fatiha Foundation, a US-based organization dedicated to supporting and empowering Muslims who are sexual and gender minorities, around the world, applauded the High Court of Australia, today, for ruling that persecution based on sexuality could be grounds for refugee status.

In a historic decision, which is considered to be the worlds-first, the High Court of Australia ruled in a 4-3 decision that gay asylum-seekers fleeing sexual persecution are on par with people fleeing religious or political persecution.

The case involved a gay Bangladeshi couple that has lived together since 1994. They fled Bangladesh in February 1999 after they had been ostracized by their families and had been mobbed and beaten over their sexual orientation. The Australian Refugee Review Tribunal ruled they were not entitled to refugee status because they could keep their sexuality secret by being closeted and that there was no proof that they would be imprisoned upon their return to Bangladesh.

The International Lesbian and Gay Association report that Bangladesh does not criminalize same-sex behavior outright. Rather the country follows British colonial law to condemn sex acts that are deemed “unnatural.” Section 377 of the Penal Code provides: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may be extend to ten years, and shall also be liable to fine”.

Although there have not been any reported cases of sexual or gender minorities being persecuted solely because of their sexuality or gender, male sex workers and transgender people are routinely harassed by local police in Bangladesh. Additionally violence that is perpetuated by family members, community leaders and religious institutions is often far worse than being arrested by the police.

The Washington Blade, a gay and lesbian publication in Washington DC, reported in August 1997 that the (formerly known as) Immigration and Naturalization Service granted political asylum to a Bangladeshi gay man who was threatened with stoning by Islamic extremists in his home city of Dhaka. In his affidavit, the man also reported being raped by police, forced into electroshock treatment and ordered by his family to enter into an arranged marriage. The Embassy of Bangladesh called the man’s story “concocted”, saying there is no such thing as execution by stoning in Bangladesh.”

Al-Fatiha called on nations around the world to follow the lead of the High Court of Australia, noting that under international law individuals who flee their native country and seek asylum in a country other than their origin, must be protected. The 1951 Convention relating to the Status of Refugees notes “countries may not forcibly return refugees to a territory where they face danger or discriminate between groups of refugees.”

The United Nations High Commission on Refugees (UNHCR) defines a refugee as “a person who ‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country...’”

Additionally, the UNHCR notes “homosexuals may be eligible for refugee status on the basis of persecution because of their membership of a particular social group.” “It is the policy of UNHCR that persons facing attack, inhumane treatment, or serious discrimination because of their homosexuality, and whose governments are unable or unwilling to protect them, should be recognized as refugees.”

Asylum law in the United States does not protect sexual and gender minorities outright, but many lesbian, gay, bisexual and transgender people have sought and won asylum in the United States. In cases involving individuals fleeing predominantly Muslim countries, Al-Fatiha has offered letters of support and affidavits to validate the persecution that many face in their countries of origin.

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