Last edited: January 25, 2005

Victimised Gay Couple Contest Refugee Refusal

Australian Court Hears Appeal by Bangladeshis

The Guardian, April 8, 2003

By David Fickling in Sydney

An Australian court is to rule on whether a gay couple’s fear of homophobic discrimination in their home country is sufficient grounds for entitlement to refugee status.

The appeal before the high court in Canberra, brought by two Bangladeshi men, was turned down by the refugee appeal tribunal, but has the support of Amnesty International Australia. Its outcome could set a precedent for other countries.

The two, identified in court as K, aged 32, and R, 51, arrived from Bangladesh in 1999. They had previously lived together for four years, but say that when this became known they were stoned and whipped, and cast out from their families and community. A local cleric issued a fatwa calling for a death sentence against them, they said. Under Bangladeshi law sodomy carries a maximum life sentence.

“They would not be permitted to live openly [in Bangladesh],” their lawyer, Bruce Levet, told the court yesterday. “They would be subjected to a range of problems, including the possibility of being bashed by police.”

When the review tribunal rejected their application for refugee status last year, it said the couple had “lived together for over four years without experiencing any more than minor problems ... they clearly conducted themselves in a discreet manner, and there is no reason to suppose that they would not continue to do so if they returned home now.”

Mr Levet attacked this rul ing, saying that such logic would have judged Anne Frank safe in occupied Amsterdam during the second world war, as long as the Nazis did not manage to discover the Jewish teenager in her attic hiding place.

An Amnesty International Australia spokesman said: “People should not have to hide their sexuality to avoid persecution. We don’t tell victims of political or religious discrimination that they should go back and be more discreet about their politics or religion, and we shouldn’t be doing it to people because of their sexualities either.”

Ann Duffield, an adviser to immigration minister Philip Ruddock, said the government was fighting the appeal because it believed the two men did not have a valid case under international law.

“Homosexuality is in the government’s view not a valid reason for seeking asylum under the UN convention on refugees,” Ms Duffield said.

The case is thought significant, because states study each other’s rulings in interpreting the 1951 refugee convention.

Other gays have had their refugee applications rejected by the tribunal. A paper in the Sydney Law Review studied 204 cases covering various refugee issues between 1994 and 2000, and found that Australia was twice as likely as Canada to reject applications.

Of these Australian cases, nearly one in five was rejected when the tribunal told applicants that they should exercise discretion regarding their sexuality. Other tribunal decisions have been found to show bias, but appeals can be made only on points of law.

A ruling on the Bangladeshi case is not expected for several months.

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