Victimised Gay Couple Contest Refugee Refusal
Australian Court Hears Appeal by Bangladeshis
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
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
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