By Advocate.com Editors
Originally published on Advocate.com April 08 2003 11:00 PM ET
Two Bangladeshi gay men appealed to Australia's highest court Tuesday to grant them asylum because they fear persecution at home for their sexual orientation. Lawyer Bruce Levet told the High Court of Australia that his clients were ostracized by their families and community, stoned, and whipped after being exposed as a gay couple. Their local Islamic council issued a fatwah, or death sentence, against them, Levet said. The men, who had lived together in Bangladesh since 1994, fled to Australia in 1999 and applied for protection as refugees from gay persecution. Their identities have not been released.
When Australia's Refugee Review Tribunal rejected their application, they appealed to the Federal Court of Australia, which in February of last year upheld the tribunal ruling. In October the High Court, Australia's final court of appeal, agreed to hear their case. Levet told the High Court Tuesday that the men would be persecuted if forced to return to Bangladesh. "They would be subjected to a range of problems, including the possibility of being bashed by police," he said.
Levet said the review tribunal had ruled that although the men could not live in an openly gay relationship in Bangladesh, they would face no persecution if they were discreet about their sexuality. Levet argued that on that basis, the tribunal would have found that Holocaust victim Anne Frank would have been safe from the Nazis during World War II as long as she had continued to hide in an attic.
Stephen Gageler, lawyer for the immigration minister, said the central principle of the case is whether denial of freedom to express sexual orientation could be described as persecution. Ann Duffield, an adviser to immigration minister Philip Ruddock, said the government is fighting the appeal because it believes the two men do not have a valid case under international law. "Homosexuality is, in the government's view, not a valid reason for seeking asylum under the U.N. Convention on Refugees," Duffield said in a telephone interview.