AUSTRALIA: Australia's highest court has said that two gay Bangladeshi men can have an application for refugee status heard on the grounds of their sexuality, writes Pádraig Collins in Sydney.
The landmark decision of the High Court in Canberra found that the men s contention that they cannot live openly as homosexuals in Bangladesh could be a reason for granting them refugee status. The men came to Australia in 1999 and applied for protection, saying they would be harmed or killed if they returned to Bangladesh, where homosexuality is a crime.
In the initial hearing of their case, Australia’s Refugee Review Tribunal accepted that people living openly gay lives faced social ostracism and beatings from police in Bangladesh. However, the tribunal disbelieved much of the men’s story about their persecution, including a claim by one that he had been sentenced to 300 lashes for being gay.
As a result, their claim for refugee status was turned down, with the tribunal saying that, if the men were discreet, they would not face serious harm in Bangladesh. However, the seven-person High Court has now rejected that finding. Two of the judges, Justices McHugh and Kirby, said that persecution does not cease to be persecution for the purpose of the [Refugee ] Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
Four of the seven judges effectively accepted the Bangladeshi men’s legal team’s argument that telling gay men they would be safe from persecution if they hid their sexuality was akin to telling Anne Frank she would be safe from the Nazis if she hid her Jewishness.
The men’s barrister, Mr Bruce Levet, said the case was likely to influence policy-making in all refugee-receiving states. [There are] two things this case does, he said. First, so far as a person’s sexual orientation is concerned, it fairly and squarely defines them as a social group for purposes of the Refugee Convention.
In addition to that, it has a wider implication for persons of any race, religion, nationality or social group, and that is they don’t have to be discreet about their membership of that group in otherwords, they don't have to hide who they are.
Three of the High Court's judges dissented, with Justices Callinan and Heydon saying there was a great difference between persecution and disapproval, and that the drafters of the 1951 Refugee Convention were not seeking to guarantee all human rights.