AUSTRALIAN HIGH COURT GRANTS ASYLUM FOR GAY BANGLADESHIS

The BBC is reporting:

The Australian High Court has ruled that two Bangladeshi gay men should be given the same asylum rights as political refugees.

The men, whose names have not been revealed, fled to Australia nearly five years ago to seek asylum on the grounds that they would be socially ostracised and possibly persecuted by the Bangladeshi authorities because of their long-term relationship.

The High Court overruled lower court and immigration tribunal opinions that the men would not suffer adversely if they returned to Bangladesh and lived in a discreet manner.

It said that the Australian Refugee Review Tribunal should have considered what would happen to the men if they lived openly as a gay couple.

The full text of the opinion in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs is available here. In reference to precedent and administrative and lower court decisions against these particular asylum seekers, Justices McHugh and Kirby write:

In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed. (paragraph 40)

Justices Gummow and Hayne agreed and took the Refugee Tribunal to task for misconceiving the nature of sexual identity:

Addressing the question of what an individual is entitled to do (as distinct from what the individual will do) leads on to the consideration of what modifications of behaviour it is reasonable to require that individual to make without entrenching on the right. This type of reasoning. . .distracts attention from the fundamental question. It leads to confining the examination undertaken . . . merely "to considering whether the applicant had a well-founded fear of persecution if he were to pursue a homosexual lifestyle in [the country of nationality], disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result" [quoting from an earlier case, Applicant LSLS v. Minister for Immigration & Multicultural Affairs]. That narrow inquiry would be relevant to whether an applicant had a well-founded fear of persecution for a Convention reason only if the description given to what the applicant would do on return was not only comprehensive, but exhaustively described the circumstances relevant to the fear that the applicant alleged. On its face it appears to be an incomplete, and therefore inadequate, description of matters following from, and relevant to, sexual identity. Whether or not that is so, considering what an individual is entitled to do is of little assistance in deciding whether that person has a well-founded fear of persecution. (paragraph 83)

Looking at the factual record and the unwillingness of the Tribunal to believe the applicants' stories of persecution, however, three justices, including Chief Justice Gleeson, would have ruled against the asylum seekers.

The web site for the High Court of Australia is here.