Gay Bangladeshi's Seek Asylum

Gay Bangledeshi couple denied asylum

Rachel Evans and norrie mAy-welby, Sydney

Green Left Weekly - 4 November, 2009

A gay Bangladeshi couple have been battling to gain citizenship in Australia for 10 years. The Refugee Review Tribunal knocked back their claims three times, and three times a higher court has overturned the rulings.

The two men fled to Australia in 1999 after they were beaten, dragged out of their shared home, held up against a wall and pelted with stones. They escaped by crawling through a sewer. This incident was the most serious of the many assaults the lovers received.

Bangladesh has penalties for gay sexual acts. Section 377 of the Bangladesh penal code, inherited from British rule, makes “intercourse against the order of nature” a crime.

Escaping persecution, on their flight to Australia the couple ticked “married” on their visa papers. They had fallen in love four years before, moved in together, and faced attacks from homophobic community members. They ticked “married” because they considered themselves married to each other.

In 1999 the pair applied for permanent residency in Australia.

They clearly fit the criteria for refugee status under the United Nations 1954 Refugee Convention, which defines a refugee as anyone who, “owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion … is unable … or unwilling to return … to his country of nationality.”

In 1999, they began a 10-year odyssey for asylum, living with the constant threat of being sent back to the persecution that drove them from Bangladesh.

They were knocked back at their first RRT hearing, which ruled they could go back to Bangladesh and live without persecution as a homosexual couple if they were discreet.

A December 2003 High Court decision agreed with the couple's barrister Brian Levet's argument that it was inappropriate to require somebody to hide their identity to be safe from persecution.

In court Levet used the analogy: "Had Anne Frank sought asylum in Australia, she could have been told, 'Go back to your attic, hide your Jewishness and you’ll be safe’.” The landmark High Court decision overturned the RRT ruling.

The second RRT hearing then ruled the men weren't gay. They based the decision on an anonymous phone caller who told the immigration department the couple "were brothers".

The RRT also decided that because they had ticked “married” on their original visa applications they had actually been married to women.

When Bangladeshi government documents confirmed neither of the men had been married, the RRT decided Bangladeshi documents were untrustworthy.

It also disregarded the fact that the couple lived in a one-bedroom apartment, with one double bed and shared a bank account.

The second ruling drove the couple to obtain an expensive DNA test to prove they were not related.

However, a third RRT hearing ruled they were second cousins (although that is not what the test said), and therefore not gay (although that doesn’t logically follow).

The couple, who are committed Muslims and pray regularly at a local mosque, have become so desperate they sent a letter to the RRT saying they can prove their homosexuality by having sex in front of a witness who can confirm the act to the RRT. The RRT replied that one act of homosexuality does not prove one’s homosexuality.

The the third RRT hearing also asked one of the men blunt questions about his sex life, prefacing them with the phrase “Now, you may not want to answer this”. When he balked about discussing lubrication this was used as evidence that he was not truthful.

Federal Court Judge Jeffrey Spender found that the RRT had gone to convoluted lengths to reach a pre-ordained conclusion in a September ruling. He said: “The Tribunal was guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not in a homosexual relationship.”

Supporters of the couple say the RRT should not just grant them refugee status, but should apologise and offer compensation for the unnecessary trauma they have been put through.

From: Comment & Analysis, Green Left Weekly issue #816 4 November 2009.