Asylum ruling backs gay bid to live openly

By GREG ANSLEY Herald correspondent

CANBERRA - The status of homosexuality has been elevated to that of religion and politics by a High Court decision allowing a gay Bangladeshi couple asylum in Australia.

The case, the first in the world to be heard by a final court of appeal, upheld the right of homosexuals to live openly without fear of persecution and overturned previous Australian rulings that gay men and women could not claim asylum if they were able to conceal their sexuality.

The principle already exists in New Zealand, Canada and the United States, but the decision is expected to be influential in similar international hearings.

The Australian case has also brought widespread attention to the little-known use of the 1951 Refugee Convention by homosexuals seeking asylum from persecution in their own countries, some of which still impose the death penalty.

In the past decade a growing list of countries - including New Zealand, Australia, Canada, the US, Britain, Ireland, Finland, Latvia and most European Union members - have accepted gay asylum-seekers under the convention.

Since 1994 in Australia and 1995 in New Zealand, homosexuals have been included in the definition of a refugee as someone who cannot return to his or her own land "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion".

But unlike New Zealand, Canada and the US, successive court hearings in Australia rejected the view that homosexuals should be able to live openly without fear of persecution because of their sexual orientation.

In 1995, the New Zealand Refugee Status Authority, noting an earlier German decision, held that "to expect of [gays] the total denial of an essential part of his identity would be both inappropriate and unacceptable".

But Australian authorities held that unlike religion - which required freedom to publicly profess and practise faith - gay men and women could practise their sexual preferences privately without feeling the need to proclaim them to the world.

"Public manifestation of homosexuality is not an essential part of being homosexual," the Refugee Review Tribunal ruled in 1998.

Two years ago the Federal Court held that the death sentence in Iran did place limits on gay behaviour, but that accepting those limits did not amount to persecution.

This week the High Court rejected the argument by overruling the tribunal and the Federal Court in an appeal by the two Bangladeshi men against the decision to refuse them asylum.

The men had lived together for four years in Bangladesh and claimed they had been ostracised by their families, been beaten and lost jobs, and one had been subjected to 300 lashes - a claim rejected because there were no scars.

The Refugee Tribunal held that while openly gay couples faced ostracism, the couple could return to Bangladesh and live without serious harm if they conducted themselves discreetly.

University of Sydney senior law lecturer Jenni Millbank, who prepared an Amnesty International submission to the High Court, said that the "discretion" argument was one of the main reasons Australia's acceptance rate of gay asylum seekers was only half that of Canada's.

In a 4-3 decision, the High Court upheld persecution of homosexuality as grounds for refugee status and rejected the tribunal's decision between "discreet" and "indiscreet".

"Persecution does not cease to be persecution ... because those persecuted can eliminate harm by taking avoiding action within the country of nationality," Justices Michael Kirby and Michael McHugh said in a published judgment.

The decision was welcomed by Amnesty International.

"It puts asylum on the basis of persecution because of sexuality on the same level as people who are seeking asylum on the basis of religious or political persecution," said spokeswoman Suzi Clark.

Couple's battle

* Bangladesh's penal code provides for life imprisonment for anyone who has "carnal intercourse against the order of nature with any man, woman or animal".

* Heavy penalties are rarely imposed and the nation tends to turn a blind eye to homosexuality.

* But most gays are forced to live apart and at risk of beatings - at times by police.

* More recently, Islamic fundamentalists have threatened gays with stoning.