Federal Court says that Refugee Review Tribunal is biased against gay couple

What happens if you and your partner are gay, are found by the High Court to have a real chance of being persecuted in your home country, Bangladesh, because you are both gay, but when you end up back before the Refugee Review Tribunal, for the third time, it finds that you are not gay? You appeal of course.

That was the experience that the applicants had in the recent Federal Court case of NAOX v Minister for Immigration and Citizenship. In a “very rare” decision, Justice Spender found that the Refugee Review Tribunal was not acting in good faith, that it engaged in a a pre-ordained manner to find that they were cousins and came up with a result “in the teeth of the evidence”, that was “highly argumentative”, “self-justifying”, legally “perverse” and “contrived”. This was contrary to the clear evidence that:

• there was a previous Refugee Review Tribunal finding that they were a gay couple;
• DNA evidence that the couple were unlikely to be related to each other! The DNA evidence was obtained by the applicants despite the clear earlier findings that they were a gay couple, but in light of the views expressed by the Tribunal.

And how did the Tribunal come to such an inglorious conclusion? It said that it relied on the lack of credibility of the applicants. And what did it rely upon to come to this conclusion? Primarily the following passage of appalling questioning:

[THE TRIBUNAL]: Do you have sex in the morning?
THE INTERPRETER: This is a personal question.
[THE TRIBUNAL]: You don’t want to answer?
THE INTERPRETER: No. …
[THE TRIBUNAL]: Do you have sex with him though?
THE INTERPRETER: Yes….
[THE TRIBUNAL]: Now you may not want to answer this question but when you do have sex do you use a lubricant?
[NAOX]: I don’t want to.
[THE TRIBUNAL]: Don’t want to answer …

Justice Spender said :

It is one thing for the Tribunal to say that the first appellant refused to
answer a question, and that this was the basis for finding that the first
appellant was not a truthful or credible witness. It is quite another thing when
the Tribunal prefaces the question “Now you may not want to answer this
question, but when you do have sex, do you use a lubricant” to which the first
appellant replied, “I don’t want to.” And the Tribunal noted “Don’t want to
answer”, and to use the first appellant’s refusal to answer that question as the
basis for a finding that the first appellant was not a truthful or credible
witness.

It didn’t matter to the Refugee Review Tribunal that the Department of Immigration had accepted, 10 years ago, that the couple were gay. The issue from the Department’s point of view back then was whether there was a real chance of persecution of the applicants.

This is what Justices McHugh and Kirby had to say about the matter when it had been before the High Court:

The Tribunal found that the appellants were homosexual males who had lived
together at various places in Bangladesh from 1994 to 1996. … The Tribunal
accepted that “homosexual men in Bangladesh constitute a particular social
group
under the Convention”. The Tribunal found:
“[H]omosexuality is not
accepted
or condoned by society in Bangladesh and it is not possible to live
openly as a
homosexual in Bangladesh. To attempt to do so would mean to face
problems
ranging from being disowned by one’s family and shunned by friends
and
neighbours to more serious forms of harm, for example the possibility of
being
bashed by the police. However, Bangladeshi men can have homosexual
affairs or
relationships, provided they are discreet. Bangladeshis generally
prefer to deny
the existence of homosexuality in their society and, if
possible, will ignore
rather than confront it. It is also clear that the
mere fact that two young men
held hands or hugged in the street would not
cause them to be seen as
homosexuals, and that being caught engaging in
sexual activity on one occasion
would be most unlikely to cause a young
single man to be labelled a homosexual.”

The High Court had sent the matter back to the Refugee Review Tribunal for a second hearing. Despite the earlier clear finding that the couple were homosexual, the second Refugee Review Tribunal rejected that. The couple appealed and then had this third hearing, which ultimately resulted in the appeal before Justice Spender.

The matter has now been sent back to the Refugee Review Tribunal for a fourth hearing. It will be heard by a different tribunal to those which heard the previous 3 matters.