High Court holds Bangladeshi homosexual men have well founded fear of persection
Thursday, December 11, 2003
- Organization: UNHCR
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S [2003] HCA 71 (9 December 2003)
The High Court of Australia held in a landmark judgement given on 9 December 2003 that two homosexual men from Bangladesh might be entitled to refugee status in Australia. The court was split 4-3 on the decision, but ultimately it was established that the men did have a well founded fear of persecution if they were to return to Bangladesh.
The men had lived together in Bangladesh from 1994 and contended that they had been ostracised by their families and mobbed and beaten on a number of occasions due to their sexual orientation. The couple argued that they had a well founded fear of persecution because of their sexual orientation and the treatment of homosexuals in Bangladesh. Their appeal was based on the contention that the Tribunal's decision "involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found" by the Tribunal.
The country of origin information that was gather stated that homosexual men could have affairs or relationships in Bangladesh as long as they were discreet. Based on this assertion DIMIA, the RRT, the Federal Court and the Full Federal Court insisted that the men were not refugees as they could live in Bangladesh as it was possible for them to escape persecution so long as they maintained a discreet relationship.
The High Court overruled the lower courts findings. Justices McHugh and Kirby said that the lower courts had erred in three areas. Firstly, by implying that gay men could be divided into "discreet" and "non discreet" cateogories. Secondly, by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution. And thirdly, by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
Justices Gummow and Hayne also granted the appeal stating that the Tribunal incorrectly addressed the question required by the Migration Act - being, did Australia owe protection obligations to the appellants? The justices found that the Tribunal erred in failing to consider why the appellants would have had to live "discreetly" (namely to avoid persecution) and in failing to consider whether the adverse consequences the appellants may suffer upon return were sufficient to make the appellants' fears well founded.
The following address provides a link to the judgement:
