By Ani Lamont
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.”
Judge blasts 'biased' refugee tribunal
Source: The Australian
By Michael Pelly
A FEDERAL Court judge has denounced the Refugee Review Tribunal for its treatment of a gay Bangladeshi couple, finding it twisted facts and ignored evidence as it heard their claim for asylum.
Justice Jeffrey Spender said the tribunal's ruling that the men were not homosexual and would therefore not face persecution in their homeland was "not an exercise in honest fact finding".
The men even took DNA tests to disprove claims they were related, but the judge said the tribunal had "irrationally and indefensibly" found the results indicated they might be cousins.
The tribunal also found that one man was not a credible witness because he refused to answer questions about whether they used lubricants during sex on the grounds such matters were personal. Justice Spender said the tribunal decision was "deliberately calculated" to get round problems caused by a High Court ruling and "not made in good faith".
"Such a finding is one that is not reached lightly, and unsurprisingly is one that is very rare," he added.
The case will now return to the tribunal for a fourth time, but barrister Bruce Levet doubts his clients will ever get a fair hearing. "On the last occasion, I was ashamed to be a lawyer and an officer of the court," he said.
The men arrived in Australia in 1999 and applied for protection visas. The first tribunal accepted they were homosexual but ruled they would not face persecution if they were "discreet about such matters".
The High Court said the tribunal did not seriously consider the threat of physical harm, including bashings by police, and ordered a review of the decision. This time the tribunal found the men were not homosexual but close relatives who had been married to women. At one point the men became so desperate to prove their credibility, they offered to have sex in front of a witness nominated by the tribunal.
Mr Levet said his clients were "terrified at the thought of having to return to Bangladesh". They have bridging visas and are living in southwest Sydney.
"The only way the tribunal could find against them was if they stuck to the (second) finding that they were not gay, even though the first tribunal made an actual finding they were gays in a gay relationship." Justice Spender noted the "improbable" decision of the third tribunal was based on its opinion of the witnesses, which would normally make it immune from review.
But he said it was unfair to declare "J" not credible, simply because he failed to answer a question about lubricants which had been prefaced with "Now you may not want to answer this question".
He said that the material sought by the tribunal had "the flavour of interrogation" and that the treatment of the DNA tests had been "contrived to support a predetermined result".
"The tribunal was guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not in a homosexual relationship," Justice Spender said.