Gay muslim refugees face uphill battle
- Published: 24 November 2009
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A gay Bangladeshi couple have been battling to gain citizenship in Australia for 10 years because the Refugee Review Tribunal doesn't believe they are queer. Rachel Evans and norrie mAy-welby report.
Three times the refugee Review tribunal (RRT) knocked the couple back, and three times a higher court has overturned their findings, most recently ruling that the RRT had been biased and made its decisions in bad faith.
The couple had fled to Australia in 1999 after they were beaten up, dragged out of their shared home, held up against a wall and pelted with stones. They escaped their stoning by crawling through a sewer. This incident was the most serious of various assaults the lovers received.
Bangladesh is a predominantly Muslim country with 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 sat next to other and ticked 'married' on their visa papers. They had fallen in love four years prior, moved in together, and faced attacks from homophobic community members. They ticked 'married' because they considered that they were married to each other.
In 1999 the two men 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 ten year traumatic odyssey that has not ended. They were knocked back at their first RRT hearing because it ruled they could go back to Bangladesh and live without persecution as a homosexual couple if they were discreet. A December 9th 2003 High Court decision was convinced by the couple's barrister Brian Levet's argument that it was inappropriate to require somebody to hide their identity in order 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 ruled the RRT decision biased.
The second RRT hearing then ruled the men weren't gay, basing this decision on an anonymous phone call that told the Immigration Department the couple "were brothers." The RRT also decided their ticked 'married' box on visa forms meant they had been married to women. When Bangladeshi government documents confirmed neither of the men had been married; the RRT decided Bangladeshi documents were untrustworthy.
The RRT ignored testimony from the brother of one of the men, whom the couple lived with after arriving to Australia. They ignored the fact that the couple live in a one bedroom apartment, with one double bed and have joint bank accounts.
The second ruling drove the couple to obtain an expensive DNA test, that showed that it was not likely, and only 'possible second cousins on their brothers side.' True to form, the 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).
Committed Muslims, who pray regularly at a local mosque, the couple 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 saying one act of homosexuality does not prove ones homosexuality.
The third RRT hearing asked one of the men blunt questions about his sex life, prefacing them with the phrase “Now, you may not want to answer this,”, and then when he balked about lubrication (or who does what to who) used this as evidence he is a not a truthful or credible witness.
The Federal Court Judge, Justice Spender, found that the RRT had gone to convoluted lengths to reach a pre-ordained conclusion. In the judgment issued in September 2009, he wrote “The Tribunal was guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not n a homosexual relationship.”
Their gayness was initially accepted by the government, there is plenty of evidence supporting this, and nothing substantiated to deny it. For ten years they have been living hand to mouth with visas that don’t allow them to get permanent employment, with the constant present danger of being sent back to the dire persecution that drove them from Bangladesh.
Observers believe the RRT should not just be granting this couple refugee status, they should apologise and offer them compensation for the trauma they have placed them under.