Skip to comments.Gays win rights as refugees
Posted on 12/09/2003 7:04:01 AM PST by Dundee
Gays win rights as refugees
HOMOSEXUALS who would have to live "discreetly" to avoid persecution in their home country might be entitled to refugee status in Australia, the High Court found in a landmark judgment yesterday.
The court split 4-3 over the decision to grant an appeal by a gay Bangladeshi couple, who claimed they would face persecution if sent back home.
The Refugee Review Tribunal and the Federal Court previously had ruled the men would be unlikely to face persecution if they resumed the "discreet" gay lifestyle they had lived before fleeing Bangladesh in February 1999.
But in a world-first judgment by a final appellate court on whether persecution over sexual orientation could be grounds for refugee status, the High Court found it was.
The court also rejected the distinction between "discreet" and "non-discreet" homosexuals, and ordered that the case be sent back to the Refugee Review Tribunal.
It awarded costs against the Government.
The decision puts gay asylum-seekers fleeing sexual persecution on a par with people fleeing religious or political persecution.
University of Sydney senior law lecturer Jenni Millbank, who helped draft Amnesty International's submission to the court, said the decision might have an indirect flow-on effect for other groups of persecuted people.
"The judgment here - that the onus is not on the applicant to hide from the persecutors - would flow on to women who refuse dress codes in countries where there were legal and religious requirements to dress in certain ways in public," she said.
It might also assist women who had been persecuted as victims of sexual assault to bring refugee claims in future.
The couple at the centre of yesterday's case, who cannot be named for legal reasons, were delighted.
"We are grateful to the court, to our lawyers and to Australia," one of the men told The Australian. "We want to live here for the rest of our lives."
The couple's barrister, Bruce Levet, hailed the judgment as a world first: "Refugee decision-makers all over the world follow each other's rulings, and the outcome in this case has the potential to influence decisions in all countries that accept refugees."
The appeal was upheld by justices Michael McHugh, Michael Kirby, William Gummow and Ken Hayne.
In joint reasons, justices McHugh and Kirby said the lower courts had erred by implying that gay men could be divided into "discreet" and "non-discreet" categories. They also found that the courts had failed to consider whether the need to act discreetly to avoid harm was in itself persecution, and whether the men would be hurt if they were ever outed.
Justices Gummow and Hayne also granted the appeal, saying the tribunal had erred by failing to ask why the men would live discreetly - namely to avoid persecution.
Chief Justice Murray Gleeson said the men's argument had taken "the reference to discreet behaviour entirely out of context".
"It is clear the tribunal was neither counselling nor requiring discretion on the part of the appellants," he found.
The men, who lived together in Bangladesh from 1994, said they had been ostracised by their families and had been mobbed and beaten over their sexual orientation.
But the lower courts rejected assertions that one of the men had been sacked - but not prosecuted - for raping several male colleagues, and had been sentenced to 300 lashes with a whip with a stone on the end, but had no scars.
I wonder if the US would accept me as a refugee. After all, as an Aussie Conservative I face political persecution every bloody day.
Only if you come in illegally from south of the border and speak Spanish, otherwise you'll be sent back.
I doubt I'd be detected and I could opt out of taxes (does the IRS ever try to claim back taxes from illegal immigrants?).
There is even some tourist trade that encourages "non-discreet" homosexuals to visit Australia.
Are the public supposed to "accept" the refuge status of persons who choose to violate local law to engage in a sexual fetish? Private practice is good while public display is bad? Or just bad PR???
Not that I know of. They're even talking about giving them social security checks, even after they stole the number to work.
For illegal aliens... crime pays.