A Bangladeshi couple may have to have sex in front of witnesses to prove they are gay in order to secure asylum in Australia.
The couple, who cannot be named, have been told to prove they are gay when they appear before the Refugee Tribunal for the fourth time in more than 10 years.
Their barrister, Bruce Levet, said short of forcing the couple to have sex in front of witnesses, physically proving their sexuality was difficult.
“I’ve been bending over backwards to try and think of some way to prove these guys are gay,” Levet told Sydney Star Observer. “They don’t frequent gay bars, they are in a monogamous relationship — so it’s not like we can do what would be easiest to do, to get stat decs from different blokes they’ve slept with. One of them is a particularly private person, and they don’t live in mainstream gay society — so it’s incredibly difficult trying to prove this.
“They don’t really know anyone in gay society. They’re not frequenters of gay establishments, they came here together, they’ve lived together exclusively for 20 years.”
The couple came to Australia in 1998 and have been fighting for asylum since then on the grounds that, as gay men, their lives would be at risk if they returned home.
Originally, the Refugee Tribunal ruled the pair would be safe to return to Bangladesh if they lived discreetly.
That decision was overturned by the High Court. However, afraid of a pink tide of refugees, the Commonwealth tried to prove the couple were not gay.
At their second tribunal appearance the men were forced to undergo DNA testing to prove they were not related after it was suggested they were brothers. The tests proved they were not related on the maternal side, but paternal tests were inconclusive and the tribunal ruled the pair were not gay.
At the third tribunal appearance one of the men was asked if he had sex that day and, when he answered yes, if he had used lubricant. When he refused to answer, he was ruled a dishonest witness and the application was again denied.
Levet said he may attempt to get a gay or lesbian psychiatrist to provide evidence or, as a last resort, ask the couple to have sex in front of a witness.
“They’ve said, if worst comes to worst, they’ll do it but they’d regard it as horribly embarrassing and terribly intrusive,” he said.
“I think the assumption is, because these guys are gay, they must live in some sort of bathhouse environment. I want to find a way to disprove this without subjecting them to that.”

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