A case involving two Bangladeshi men who are seeking refugee status in Australia because they say they are gay has exposed a tricky legal area, raising the question of how a person can prove to a court they are gay.
The men's future is in limbo. The Refugee Review Tribunal found in November that the two men were not eligible for refugee status because they were not gay, as they had claimed. But this decision was overturned last month on appeal by the Federal Magistrates Court -- and it's thanks in part to a collection of homemade porn shots.
According to the tribunal's finding, the men claimed that if their homosexuality were discovered in Bangladesh they "might be verbally or physically abused, arrested or even killed by religious people and the police". For this reason, they also avoided contact with the Australian Bangladeshi community, as they believed others "would not accept" the relationship.
The original tribunal finding did not accept that the men, who claimed to have been in a relationship for some years, were "homosexual, or had sex, sexual experiences, or a homosexual relationship with [each other] or any other males in Bangladesh or Australia".
But Federal Magistrate Robert Cameron, in an appeal hearing in December, disputed this conclusion on the basis that the tribunal had neglected to consider as evidence a CD containing photographs of the men "having sex with each other".
The tribunal’s original decision to reject the asylum applications stemmed from a range of inconsistencies in the two men’s recounting of their relationship and other details, such as when they met and their knowledge of one another’s histories. While one of the men, known as SZQYU, told the tribunal that they had only kissed once in Bangladesh, this contradicted an earlier interview in which both applicants had claimed to have often been intimate. SZQYU had also been incorrect about the name of the college attended by his putative partner before they came to Australia.
This was despite noting that the applicants went to Mardi Gras together, had attended events held by a gay South Indian community organisation, shared a bank account, and had gone out to gay clubs while in Australia. Due to the contradictions in their testimonies, the tribunal concluded the men were not reliable witnesses, and could not rule out the possibility that they had only involved themselves in the gay community in an effort to win refugee status.
Other witness accounts, including a housemate who had claimed to have walked in on the couple in flagrante
, were also dismissed for this reason.
Scepticism was also expressed at the fact that although the men arrived in Australia as students in 2006 and 2007, neither applied for a protection visa until 2010. When questioned about this, the applicants stated that they had planned to finish their studies and were "going to see" what would happen afterward. The tribunal believed that if the couple were moving to Australia to start a new life together, it was "not credible" that they would have waited so long to apply.
Many such decisions hinge on the timing of the application for protection, with the tribunal often looking askance at those who are slow to apply. The High Court rejected an appeal
in 2010 by a Pakistani man because he had returned to his homeland for three weeks and had failed to apply for refugee status when he landed in the UK prior to arriving in Australia. Such behaviour, the court decided, was out of keeping with a fear of persecution in Pakistan.
And while research has suggested
that gay refugee applicants often face linguistic barriers or are unwilling to fully disclose their sexual activities due to an ingrained fear of authorities, the tribunal decided that as one of the men "presented confidently" and spoke without a translator, the inconsistencies could not be attributed "to his shyness or lack of English language skills".
But Federal Magistrate Cameron argued that in order to find that the men were not in a physical relationship, "it was necessary that the tribunal consider the evidence before it relevant to that subject," which included the photographs. He added that the tribunal did not make reference to the images in its findings, other than to note that the photos had previously been seen by mental health social worker Dr Paul Andrews.
Andrews concluded that the pair were gay and in a relationship, though the tribunal largely overlooked what Federal Magistrate Cameron claimed it described "dismissively" as Andrews’ "view" that the applicant is homosexual.
It appears that the pictures may not been viewed by the tribunal because one of the men, after providing the CD at the hearing, had requested it not be viewed.
Federal Magistrate Cameron noted, however, that in spite of the applicant’s desire that the images not be shown, the tribunal’s failure to consider this evidence had "possibly deprived the applicants of a successful outcome to their review applications".
The matter has been sent back to the tribunal for further review.