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… Read More »Custom Single Post Header

Family Law Section Law Council of Australia Award
Member of Queensland law society
Family law Practitioners Association
International Academy of Family Lawyers - IAFL
Mediator Standards Board

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.
Things to Read, Watch & Listen

Forced Marriage

On November 1st 2023, Accredited Family Law Specialist and Page Provan Director Stephen Page presented a paper at the Brisbane Zonta Club about forced marriage. I acknowledge the Jagera and Turrbal peoples, on whose lands we meet today, their elders, past, present and emerging. Ruqia Hidari was aged 21 and living in Victoria, when, according to police,… Read More »Forced Marriage

ACT Government Surrogacy Bill

The ACT Government has today introduced a bill to amend the ACT’s surrogacy laws. The proposed changes are more incremental than fundamental. They include allowing a single person to undertake surrogacy, for the surrogate to be single if needed, a requirement for legal advice and counselling beforehand, a written agreement being required, that traditional surrogacy is… Read More »ACT Government Surrogacy Bill

Planning to resolve: ADR in ART

ADR can help resolve disputes in ART cases. ADR is not limited to mediation and arbitration. Other types of informal dispute resolution can resolve disputes. When assisted reproductive treatment cases go off the rails, they can have the next level of bitterness and volatility. There can be a keen sense of betrayal when things don’t… Read More »Planning to resolve: ADR in ART