A Bangladeshi gay couple who had been refused protection visas by Australia’s Refugee Review Tribunal will have their case re-heard after the Tribunal’s decision was overturned by the High Court on Tuesday.

In a judgment hailed for its implications for international refugee law -“ and for gay men and lesbians seeking asylum in Australia -“ a 4-3 majority of High Court justices found that the Tribunal had erred by not considering what would happen if the men lived openly as a homosexual couple in Bangladesh. The men had argued they would suffer serious harm because of their homosexuality if they were returned home, but the Tribunal had determined they would not be persecuted if they conducted themselves discreetly.

The majority judges, including Justice Michael Kirby, stated that the Tribunal fell into jurisdictional error by dividing Bangladeshi homosexuals into two groups -“ discreet and non-discreet -“ and failed to consider whether the men might suffer harm if police, employers or others became aware of their homosexuality.

The judgment represents a cherished reprieve for the couple, whose applications for protection visas had been previously rejected by the Immigration Department, the Refugee Review Tribunal and the Full Court of the Federal Court. Their initial applications were made two weeks after arriving in Australia in 1999.

The couple’s barrister, Bruce Levet, told Sydney Star Observer he had argued that it was inappropriate to require somebody to hide their identity in order to be safe from persecution, and used an analogy to make his point.

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,’ Levet said.

In their judgments, Justices Kirby and McHugh argued that persecution does not cease to be persecution for the purpose of the [1951] Convention [relating to the Status of Refugees] because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps -“ reasonable or otherwise -“ to avoid offending the wishes of the persecutors.

In the original Tribunal hearing, both Bangladeshi men gave evidence of extensive persecution in their homeland. They said they had lost their jobs because of their homosexuality and a religious court had issued a fatwa sentencing them to death by stoning -“ but the Tribunal rejected many of their claims of persecution, stating that the two men were unreliable witnesses.

Sydney University law lecturer (and Gay and Lesbian Rights Lobby committee member) Jenni Millbank told the Star she had no comment to make on the specifics of the men’s claims. However, she also stated that previous Refugee Review Tribunal rulings regarding homosexual discretion had acted as an incentive for people to make up claims of persecution, or exaggerate them.

Another claim from one of the men at the original tribunal hearing -“ that he had lost his job in Bangladesh in 1980 or 1981 after raping some male co-workers -“ was not given any weight in the tribunal judgment.

In my view, this was clearly a translation error, Millbank said, suggesting that the man had proffered a phrase that meant bad sex or dirty sex in explaining what had happened, and that this had been misinterpreted as rape.

Millbank acted as a consultant for an Amnesty International submission in the case, and said their submission had made a tremendous impact on the case’s development.

The most significant argument in the Amnesty submission, Millbank said, was that the imposition of the discretion requirement was inconsistent with the fundamental aims of the Refugee Convention. She said the judgment was most important for gay, lesbian, bisexual and transgender asylum seekers, but it could also have significant implications for asylum seekers under other grounds.

The national director of the refugee action group A Just Australia, Howard Glenn, told the Star that yesterday’s judgment was a great decision by the High Court.

It’s unclear how much of an ongoing precedent (this judgment) will set, but it opens up the possibility of granting asylum on the grounds of sexuality, which we welcome very much, he said.

There were many other gay and lesbian asylum seekers languishing in Australian detention centres because the homeland threats against them were not recognised by the government, Glenn said.

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