Court Rules in Favor of Homosexual Asylum-Seekers

By Patrick Goodenough | July 7, 2008 | 8:04 PM EDT

Pacific Rim Bureau ( - An Australian High Court decision has elevated homosexuality to the status of religion and politics when it comes to asylum applications.

A Christian organization warned that the ruling would prompt a flood of claims from people who were not refugees but had simply chosen a particular lifestyle.

In what lawyers say is a world first - a precedent-setting decision - Australia's highest court challenged lower court rulings that homosexual applicants could not claim refugee status on the grounds of persecution if they were able to hide their sexual preference.

The 4-3 decision by a seven-judge panel means that homosexuals may be considered members of a "particular social group" eligible for protection under a 1951 international refugee agreement.

The U.N. Convention on Refugees says applicants for asylum must have "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion" in their home country.

In recent years, several countries have permitted applications based on claims of persecution based on sexual preference.

In the U.S. in 1994, then-Attorney General Janet Reno determined that homosexuality may, under certain circumstances, constitute grounds for asylum.

But the Australian case is understood to be the first time a country's highest court has ruled on the matter, and the decision is likely to be used as precedent elsewhere.

"It's the first time anywhere in the world that a final appellant court of a country has considered a refugee claim based on the grounds of sexual orientation," said Bruce Levet, the lawyer representing two Bangladeshi men at the center of the case.

"It's got a huge potential to influence decision making and jurisprudence in all countries which receive refugees," he told Australian media.

The Bangladeshis, whose names have been withheld, arrived in Australia in 1999 and applied for refugee status two weeks later, claiming they fear persecution in Bangladesh because they are homosexuals.

Their applications failed and they were turned down, first by a refugee review tribunal and then by Australia's federal court.

The tribunal rejected as untrue their claims to have been subjected to serious violence and threatened with an Islamic court death sentence. It found "much of the evidence given by both men regarding the problems which they faced during their time together to be lacking in credibility."

"While homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it," it said. "[The men] lived together for over four years without experiencing any more than minor problems with anyone outside their own families."

The tribunal also said that they would have no serious problems if they returned to Bangladesh and conducted their relationship discreetly.

But the High Court this week rejected that view, saying the tribunal should have taken into account what would happen to the pair if they lived openly as a homosexual couple.

It sent the case back to the tribunal for re-adjudication.

Immigration Minister Amanda Vanstone has declined immediate comment until she has further studied the judgment.

Jenni Milbank, a senior law lecturer at the University of Sydney who studies immigration issues, said more than 200 asylum cases in Australia between 1994 and 2000 involved claims of persecution based on sexual orientation.

Failed claims, especially by those from Islamic countries like Bangladesh and Iran, should be reheard in the light of the High Court ruling, she said.

'Dangerous precedent'

An Australian Christian ethics group, Salt Shakers, expressed alarm at the court ruling and the potential ramifications.

"This decision will set a very dangerous precedent because every Muslim country would have people who choose to be homosexual and Islam forbids that," said the group's executive officer, Peter Stokes.

"If the refugee tribunal accepts this High Court decision, they will all want to come here."

Stokes said the two Bangladeshis were not refugees and Australia should not be obliged to allow them to stay in the country.

"If they feel attracted to each other, so what? Nobody forces then to publicly flaunt their personal choices."

Salt Shakers is also unhappy that one of the four judges who swung the 4-3 decision is openly homosexual, and has "condemned anyone who opposes" homosexuality.

"There is a clear case of conflict of interest when someone's own chosen minority lifestyle is at issue in an appeal of this nature," Stokes said.

Stokes said Prime Minister John Howard and his attorney-general should "declare that Judge Michael Kirby is ineligible to hear cases involving homosexuality."

Salt Shakers also urged the refugee tribunal to continue to refuse refugee status to thee two Bangladeshis.

Levet, the Bangladeshis' lawyer, played down concerns about a rush of applications following the court decision.

"I can't imagine it would be a huge flood," he told Australian radio.

"It is fairly difficult to establish any convention-based ground [for asylum], and the same fairly rigorous tests would be applied to persons seeking it on the basis of sexual preference as to any other."

Levet pointed out that, under the convention, applicants must show that they have a "well-founded fear" of persecution by their government, or by others in their country in cases where their government is unwilling or unable to protect them.

Judge Kirby's homosexuality has been an issue in the past. Last year, he was at the center of a serious row after a government Senator, speaking in parliament, accused him of allowing his homosexuality to affect his legal judgment.

Senator Bill Heffernan, a campaigner against child-sex abuse, said Kirby was not fit to preside over child sex cases.

Government, legal and other figures rallied around Kirby, and Heffernan later apologized publicly.

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Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow