‘Prove you’re gay’
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.”
Jason,
Kevin Rudd should intervene. He has not. Just like the Uganda case he should intervene also, but he is not doing so. I am presently writing form Hong Kong where Kevin Rudd is considered a joke. He has supported Christian Hate groups but when put to the test does very little stop human rights abuses against people in our community. The Greens are the only major party that supports a full end to discrimination. We should never accept from Kevin Rudd just Part Discrimination.
Dave – This first started in 1998 under the Liberal government not Labor, I’m not saying Labor is great but they have removed discrimination in some immigration visas that makes it easier to come to Australia as a couple. Before Rudd Labor removed the discrimination unless your partner was a New Zealand citizen or an Australian citizen a same-sex couple could not apply for citizen ship together as a couple. So basically if you were two USA citizens for instance you could not apply to permantely reside in Australia as a couple even if you were a doctor or school teacher.
Ｎｅｖｅｒ Ｖｏｔｅ Ｌａｂｏｒ ａｇａｉｎ！
Firstly people, it’s their lawyer that suggested sex as a means to proving the relationship, not the Dept of Immigration (DIAC), the Refugee Tribunal (RRT – note independant of DIAC)or the courts.
And sorry but if they have zero evidence outside of each other of the relationship then what are they fearing? If not one person here knows then what makes them think anyone in their home country would know and thus result in persecution?
The issue with protection based on this with no evidence is not an issue with genuine refugees. It’s the issue that once you start just accepting every persons word this opens the floodgates for anyone that wants to get here to just claim to be gay.
And April, if they are found to be straight then they deserve what they get for lying & being stupid enough to go public with the lie. This puts back gay rights & makes it harder for REAL gays & lesbians trying to claim protection
Farrell Platt – “interdependent relationship” Umm hello, back in 1998 same-sex couples were not recognized in any federal laws, and the degrading interdependency relationship terminology used by the Liberal government to cover same-sex relationships did not exist. Back in 1998 the government only recognized a same-sex couple as singles so each partner had to apply for single visas etc and hope that you would both be accepted and not just one partner. If same-sex couples were recognized in federal law back in 1998 like other countries then the couple in question probably would not have had to jump though so many hoops, and they probably would have been treated like a heterosexual defato couple in terms of applying for visas before they even arrived in Australia. I suspect the only reason they went though the Refugee Tribunal was because it was really the only way as a gay couple they could permanently reside in Australia. I thank the SSO for bringing this to attention.
What I find disgusting about this is the idea of laws forcing people to have sex. Sex that is only had under pressure, when one or both parties might feel uncomfortable, even within a loving relationship, is usually called rape. The fact that the pressure comes from outside the relationship makes it even worse. If the couple are under such pressure to have sex – especially in front of someone else, then the tribunal has effectively sexually assaulted two people.
Not to mention the fact that there are a number of couples who are not sexually intimate – for personal, spiritual, or other reasons – but still consider themselves together. If they were married, this wouldn’t be an issue.
I find this all very disturbing.
Besides, having gone public as a queer couple in Australia would surely influence people’s opinions of them in Bangladesh. Even if they are found to be straight, imagine returning to Bangladesh and having to try and deal with people who have heard they claimed to be gay in Aus.
Farrell, this case has been going for 11 years. It took an appeal to the High Court for the Dept to accept these men will be percecuted in their own country for being gay. It is back before the Refugee Review Tribunal a fourth time in its life, after having gone through on appeal on other occasions on other issues because of inept decisions of the tribunal, which does not observe rules of evidence. The outcome has nothing to do with the lawyer representing these men, who I might add is doing it pro bono, it is politically motivated. This inept Tribunal is trying to avoid a finding these men will be persecuted in their home country for being gay, as it may open the floodgates for gay people from Islamic coutnries to seek refugee status in Australia (I don’t know why that would be a problem over refugees for other reasons). As a matter of law in other jurisdictions, if you assert something (like these men asserting they are gay) and the other party (the Dept of Immigration) can offer no evidence contrary to the assertion, then the assertion should be accepted by the Court. In this case, if the men merely say they are a gay couple and have been living in a relationship for 20 years, that should be the end of that. The only other option for them to prove their relationship is to take the extraordinary step of seeking expert evidence from a psychiatrist to advise on the nature of their relationship. They have been referred to someone in Sydney. Immigration in this country is a joke.
I’m not sure if I am more embarrassed for you (SSO) for making this story front page news, or for the lawyer they have engaged that can only see to justify their relationship on the grounds of sex, hanging out in bathhouses or frequenting gay establishments – whatever they are nowadays.
Attitudes such, that pigeon hole people of ANY persuasion are precisely what is wrong with the world, and why equality seems further from anyone’s grasp – gay, straight, black, white, red, yellow or blue (for any smurfs that may be reading)
If these chaps have been living together exclusively for 20 years as stated, then there is clear evidence of an interdependent relationship. If they have no proof of said interdependency after such a long time, then you can probabaly understand the governments point of view.
If their lawyer has not managed to recognise this as an option (or found a loophole to exploit it) then he should hang his head in shame and pass them to someone who knows what they are doing.
Taking to the front page of a gay information gazette to further promote inequality, is only marginally less ridiculous that expecting two people to have sex in public; especially given their nationality.
You kick and scream and pant for equal rights? Then address the situation as you would were you one of the people you so desperately want to be like.
Dis graceful – in the truest sense of the word.
Editor’s Note: I think offering solutions to help this couple and their legal representation would be more beneficial than sitting back criticising.
I am a psychiatrist with many years of experience evaluating LGBT asylum applicants in the U.S. and have developed ways to address this very issue. I’d be happy to speak with the barrister. I can be located through Physicians for Human Rights based in Cambridge, MA, U.S.
Perhaps the proof may be in the perception of the sexuality of the two people in questions by the people in the country of origin.
The Bangladeshi couple claim to be gay.
They seek refugee status in Australia because they fear they will be persecuted for their sexuality in their country of origin.
Perceptions are real and powerful.
People are still bashed in Australia because people perceive other people to be homosexuals. It is only a perception because they do not have sex in front of the people who bash them.
The recent case of the young couple that were bashed outside a club in the Western Suburbs is proof that it only requires a perception to invoke persecution.
People used to be burned as witches, not because they were witches but because people believed that they were witches.
The counsel for the Bangladeshi couple is seeking evidence to prove their sexuality.
That evidence may be found in the perceptions held by the people in Bangladesh about the sexuality of the couple.
If this wasnt such an atrocity it would be laughable.
What you are kidding me??????
So now I have to watch straights having sex to prove they are straight – what is this world coming to??????
I blame both the “Religious Nazi” John Howard and “socialist chinese crack pot” Kevin Rudd for all this mess.
I question this every single day – “What have we really achieved on gay rights in Australia?”
Well at least we are better than the Americans when it comes to gay rights!!!!!
“do not equate to proof of a relationship” – The the problems these guys are having proving their status is the exact same reason why our current inadequate defacto-only laws are not worth the paper thier not written on in recording our relationships- it is why we need equal marriage access. If these guys got married in South Africa first, or a British Civil Partnership, I doubt they would be having this problem. Same with us living here- how do we beyond a doubt prove we are in a relationship without being able to marry. Defacto is not enough. At least with a marriage certificate from Canada, although it’s not recognised, it still helps prove our defacto status- but what make us fly overseas to get that proof???
how entertaininmg for the bored officials at the our illustrious department – smacks of colonial days cowboy governing!
:O THIS IS ABSOLUTLEY DIGUSTING< IMMORAL< PERVERTED AND REALLY REALLY WRONG!!!!!
methinks some ‘witness’ has requested a private screening… I hope the boys will at least get paid for their services, otherwise ALL sex workers should get up in arms on their behalf as well.
How does someone prove they are followers of a certain prosecuted religion or political persuasion? Wouldn’t the same standards apply here? After all you can’t physically prove your religion/politics apart from stating that that’s what you believe.
The problem is that the relevant question is actually about sexuality, being one of the grounds for protection under a protection visa. A straight couple would not have to prove they are straight as they would have no grounds for protection based on their sexuality. They would fail because they are straight and that is not a ground for protection. Whether or not these guys are gay is indeed relevant. Having said that, however, what the Tribunal decides constitutes good evidence of being gay is the question. One would expect that the Tribunal might adopt the same sort of criteria they use in interdependent visas to look at whether the relationship is genuine. Whether a couple have sex at all shouldn’t be relevant. If they percieve themselves as gay then it is likely that others will see them as gay, giving rise to possible persecution. After all, generally people outside the relationship don’t know the ins and outs (so to speak) of a gay person’s sex life. It’s not the actual knowledge of sex that gives rise to the bashings, hate crimes, etc. Clearly here the Tribunal members have had no competency training in understanding the right to self identity and the implications of that. These seem like decisions of those who have not been taught and have no concept of seeing the world other than through straight eyes.
What a joke, as a former employee of the Dept of Immigration and Citizenship, This is just another display of how many mistakes the Department makes on a day to day basis. Please note that it is my experience, that DIAC are regulars at enforcing homophobic sentiment both in-house and before the general community.
If we take away the sexual relationship you should be left with; joint photos, joint financials, joint mortgage/lease/accommodation receipts, joint utilities (phone/gas/electricity), and trails of emails/sms between the individuals. If in 10 years there is not a forensically discoverable link between the couple, wouldn’t that make you question?
PS. Come on SSO, please don’t start feature articles with value statements, it damages your journalist integrity!
Editor’s Note: Allan, all your suggestions do not equate to proof of a relationship, according to the tribunal.
I would think that if they went to Canberra and started “proving” that they were gay on the lawn in front of Parliament House, the matter would soon be resolved! With the number of Japanese tourists taking photos of the event, there would be no shortage of evidence to present at the next hearing!
The refugee review tribunal systematically discriminates against LGBTQ cases in this very way. They use the Spartacus travel guide to determine whether a country is gay friendly and ignore real human rights reports from NGOs such as Human Rights Watch.
See The Australian article here http://www.theaustralian.news.com.au/story/0,25197,26133734-5006784,00.html
So how do Hetro’s prove they are straight…….
The Refugee Tribunal’s approach to this case sounds utterly appalling.
I’m not sure whether I’m more annoyed at the generalisations regarding what a gay couple should look or act like, or yet another example of our government attempting to send refugees back (that’s ‘refoulement’, and against our obligations under the refugee convention).
I guess it shows the lengths to which our immigration administration will go to try to keep people out of the country (and you have to wonder what the lawyers / public servants coming up with their arguments are like).