High Court rejects “gay” man’s refugee status

High Court rejects “gay” man’s refugee status

A Pakistani man claiming to be gay has been rejected by the High Court as a refugee.

In the case, called Minister for Immigration v SZMDS, the man had been refused refugee status by the Refugee Review Tribunal. He appealed to the Federal Magistrates Court and lost. He then appealed to the Federal Court, which upheld his appeal. The Minister for Immigration appealed to the High Court.

It was common grounds that homosexual men were prosecuted in Pakistan. The issue was whether this man had discharged his evidentiary burden of proof to show that he was gay, and was rightly fearful of being prosecuted in Pakistan.

The Facts

  • 1991 – he married. He and his wife then had four children
  • 1995 – he moved to the UAE for work
  • 1998 – he returned to Pakistan
  • 2004 – he moved back to the UAE
  • October 2005 to July 2007 – he developed an attraction to other men
  • July 2006 – he commenced a gay relationship in the UAE
  • October 2006- he travelled to the UK
  • December 2006 – he returned to the UAE
  • May 2007- he returned to Pakistan
  • June 2007 – he left Pakistan
  • July 2007- he arrives in Australia
  • August 2007- he applies for a protection visa

Why he failed

When the matter had been before the Federal Court, that court had upheld the man’s appeal because it said that it could not comprehend the decision of the Refugee Review Tribunal. A majority of the High Court disagreed with the Federal Court’s approach, stating that there was a logical conclusion to the Tribunal’s reasoning, and in essence it was this:

  • his evidence was uncorroborated. In other words, he did not have any witnesses to back up his story.
  • the Tribunal didn’t believe him.
  • the man’s story was that he had engaged in gay sex in the UAE where gay sex was criminalised, both under the criminal law and Sharia law.
  • his fear of being persecuted in the UAE was not realistic.
  • if he were so afraid of being persecuted, he should have applied for a protection visa when he was in the UK. He didn’t.
  • if he were so afraid of being persecuted in Pakistan, he wouldn’t have returned there for 3 weeks in 2007.
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