(This posting goes on a bit. Sorry about that.)
Some time ago I wrote a cranky email to Senator Chris Evans, Minister for Immigration and Citizenship, in response to media reports that a Bangladeshi couple may have to have sex in front of witnesses to prove they are gay, as they had claimed on their refugee visa application.
This is the same Senator Chris Evans I wrote about last year, when I called him ‘Australia’s best immigration minister in a dozen years’.
When I heard about what these two Bangladeshi fellows were going through, I felt a bit cranky. When I read the history of the case as outlined in the published findings of the Federal Court appeal on 18 September 2009, I was incensed.
These two men have been in the refugee grist-mill for more than ten years. Their claim that they are homosexual and in a relationship has been accepted by the immigration department and the Refugee Review Tribunal throughout almost all of that period. The department has refused their claim for refugee status on the basis that, even though they would be persecuted if they lived openly as gay men in Bangladesh, they could safely return home and “live discretely”. The case has been all the way to the High Court, which rightly rejected as absurd (both morally and legally) the notion that these two could happily live out their lives in Bangladesh as secret homosexuals.
It’s at this point that things take a particularly nasty turn. Faced with the High Court’s rejection of the Closet Solution, suddenly the immigration department decided it no longer accepted the validity of their relationship, and demanded proof.
How do you prove you’re gay? Normally you would get evidence in the form of sworn statements from others who know – in other words, other people the pair have had sex with. But they’re in a monogamous relationship, and have been since arriving in Australia at the end of the last century.
This is where we get to the point that these two are being asked to consider having sex in front of witnesses to prove their point. As if this even proves anything, except that the Australian government is determined to persecute this couple. Unable to prove their sexuality, the Tribunal rejected their claims and the matter ended up in the Federal Court, where the presiding judge, Spender J, found:
I am satisfied that the decision by the Tribunal on the third occasion the matter was before it was not made in good faith. Such a finding is one that is not reached lightly, and unsurprisingly is one that is very rare.
I am satisfied that the finding of the third Tribunal that the two appellants are not, and were not, homosexuals was not made in the exercise of honest fact finding, but was deliberately calculated to “get around” difficulties in the factual circumstances of the appellants’ case, thrown up by the judgment of the High Court. (Emphasis added)
The picture that is being painted here is unpleasantly clear. The Immigration Department and/or the Refugee Review Tribunal are determined to see this case fail, and perhaps with good reason. Australia is a country that is tolerant of homosexuals; one of a handful in the world, and I suppose the potential for establishing a precedent that would lead to many more claims from gay men and lesbians living in less-tolerant nations is substantial. But nonetheless, the treatment these two men have had – more than ten years of endless bureaucratic and legal (in)action – made me despair.
(At this point I should say that I have no idea whether these two guys really are homosexual. And at this point I don’t care – they have suffered enough.)
So on 14 October I sent an email to the Minister, and a few weeks later a letter came from his “Acting Assistant Secretary, Governance and Stakeholder Branch” to tell me the email had been forwarded to the RRT. Today I got an email from Pallavi Sinha, “Executive Officer (A/g), Migration Review Tribunal & Refugee Review Tribunal” which attached (“Attachment ‘A’”, I kid you not) a ‘response’ from the Registrar of the Tribunal, which I include below in full:
Dear Mr Kidd,
I refer to your email dated 14 October 2009 to the Minister for Immigration and Citizenship in which you made representations in relation to two Bangladeshi refugee review applicants claiming protection from the Australian Government because of a fear of persecution based on their claimed homosexuality.
I appreciate you raising your concerns and would like to advise you that I can, in the circumstances, only address them in a limited way, as I explain below.
I can advise you that the applicants’ case has been allocated to an experienced Member of the RRT.
The Member is currently conducting a reconsideration of the case. In this reconsideration, the role of the Member is to conduct an independent review and to reach a fair and lawful decision based on the available evidence. You would appreciate that cases such as this one can involve difficult assessments, which require the making of factual findings by Members in relation to particular claims.
I can tell you that the RRT devotes significant resources to professional development and heightening Members’ awareness about the proper and sensitive handling of such cases. I mention, for example, that focus group sessions on protection visa claims relating to homosexuality have been held in Sydney and Melbourne as part of a programme addressing the subject of “protection visa claims relating to homosexuality”. A seminar has also been conducted for all Members on sexuality and refugee status.
The RRT has also developed extensive procedural guidance for Members (e.g. the Guidance on the Assessment of Credibility) and Members are subject to a Code of Conduct requiring fair and sensitive conduct of reviews. These guidelines emphasise the importance of the use of relevant and appropriate questioning and the avoidance of unnecessarily intrusive questions.
As this case is currently under consideration before the RRT, it is not appropriate that I comment any further about details of the case. I expect that the Member will accord procedural fairness to the applicants and will do so lawfully in accordance with Federal Court directions and the requirements of the Migration Act 1958.
I hope this information is of assistance to you.
I am so glad to hear that the Tribunal has conducted “focus group sessions on protection visa claims relating to homosexuality … as part of a programme addressing the subject of ‘protection visa claims relating to homosexuality’.” I am also thrilled that ‘a seminar’, ‘procedural guidance’ and “guidelines’ have been developed to help the Tribunal members do their jobs at least half well.
But I’m still cranky.
You can read more of the horrible history of this case if you search for NAOX on AUSTLII.