Two gay Bangladeshi men came to Australia in 1999, claiming asylum on the basis that they would be killed or harmed if they were returned home. With the support of Amnesty International, the men tendered evidence that they would face persecution and violence if forced to return home to Bangladesh, where homosexuality is a crime.
At first instance, Australia’s Refugee Review Tribunal refused the claim, doubting some of the evidence tendered by the applicants and adding that the men would not face harm “if they lived discretely.” Refugee status was in part refused on the grounds that gay men and women who were forced to “live discretely” to avoid persecution did NOT possess a legitimate claim for asylum in Australia.
A narrow majority of the High Court of Australia (think US Supreme Court–the HCA is the ultimate judicial body in this country) has rejected the findings of the Tribunal. The Court has found that persecuted gay men and women may be considered to be members of an oppressed “particular social group” that is eligible for protection under the 1951 Geneva Refugee Convention (to which Australia is a signatory).
On the subject of living “discretely”:
**The High Court has not reversed the Tribunal’s decision, rather it has been sent back down to be reconsidered. It may be expected that the Tribunal will now allow the two Bangladeshi men refugee status in Australia, since it is bound by the High Court’s finding that homosexual people are a “social group” for purposes of the 1951 Convention, and that it is incorrect to conclude that the potential to “live discretely” to avoid persecution precludes a claim for refugee status.
The effects of the decision
Internationally, this is thought to be the first time that a court of final appeal has considered a claim for refugee status founded on persecution due to sexuality. This is big news.
Two flow-on effects can be expected:
(1) Future claims for asylum on the basis of persecution due to sexuality.
**(2) The predictable outcry of the far Christian Right and anti-gay groups. Such bozos have already piped up with claims that homosexuality is a “choice” and that accordingly refugee status should not be awarded to the men for “choices” they could otherwise refuse.
Tied to this criticism is the juicy fact that one of the judges on the High Court Majority – the estimable Justice Michael Kirby – is living in the committed gay relationship. The outraged cries that Kirby J is biased and should have been precluded himself from sitting on the case have already risen, along with the predictable criticisms of “judicial activism”.
The Commonwealth Government is yet to comment on the decision, but the new leader of the Federal Opposition has already spoken up in support. Prime Minister Howard is notably conservative on the issue of gay rights – he has spoken in the past of his opposition to gay marriage – so I don’t expect him to break out in a rash of support and compassion any time soon.
Personally, I’m thrilled to bits. First, the decision appears correct at law. Second, I’m glad that men and women who face certain persecution and violence at home on account of their sexuality may claim asylum in Australia–it embiggens this nation’s heart (to use a cromulent word).
Third, the gnashing of teeth and tearing of hair of anti-gay groups fills me with delight.
Fourth, I can’t wait for the publicity that will follow when a gay man from a Western nation claims asylum in Australia on account of the fact that he faces persecution and oppression at home.