Are You Gay? Can you prove it?

That might seem to be a strange question.  More commonly, people struggle to pass as “straight” in the face of constant speculation that they might be gay.  Generally speaking, being gay  involves such a stigma that if a person willingly declares that he is gay, most people would be inclined to accept that without further proof. 

But if you want to stay in Australia as a refugee because, as a gay person, you face persecution in your home country, you will be asked this question.

This  category of refugee developed gradually in the teeth of opposition from the Australian government.  First, it was reluctant to concede that gay people faced persecution.  Secondly, it said that gay people did not relevantly form a social group which attracted protection under Australia’s treaty obligations. Thirdly, it said that members of this group could avoid persecution if only they pursued their sexuality “discreetly.”

Each of these points had grudgingly to be conceded in the face of High Court judgments to the contrary. 

A landmark case: R and J (or: S395 and S; or NAOX) 

The third point was knocked on the head in 2003 by a 4:3 majority in S395/2002 v Minister for Immigration and Multicultural Affairs.  This case involved two Bangladeshi men who had arrived in Australia in 1999.  They made various claims of persecution which they had experienced in Bangladesh, most of which were not believed by the tribunal.  The tribunal accepted that they were gay, but said that it was not satisfied that they faced persecution because:

“I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. [The appellants] lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.”

The High Court said that this involved an error of law amounting to jurisdictional error (which is what is required to succeed in an appeal against a decision of the tribunal) and held that their case should be sent back to the tribunal to be redetermined.

This landmark case was widely reported at the time, and has to an extent improved the prospects of applicants for refugee status who claim to be facing persecution on account of their sexuality or, indeed, on other bases where the risk of exposure and denunciation would pose a constant threat of persecution.  Presumably, the two Bangladeshi men have long since been able to settle in Australia and, other vicissitudes of life aside, have been able to live happily ever after.

Or so I had thought, until this week I read  “Under the Gaydar”  in The Bulletin.  As Paul Toohey reports:

The court remitted the case to the RRT. It was expected they would rubber-stamp the applications by R and J but, at a new 2004 hearing, the tribunal revealed that an anonymous caller had said J was engaged to a woman in Bangladesh, and that the men were cousins. The RRT probably suspected the men would, in a year or two, find they were straight after all and import wives and children.

R was asked to remove his shirt and show the scars from the lashing he’d claimed to have received decades before. The RRT member says he saw no scars.

Although the RRT accepted at the earlier hearing that the men were gay, it was now noted they’d ticked boxes on their original application forms stating they were married. They said they had meant that they were married to each other. The papers were dodgy – or badly completed by the Bangladeshi-speaking migration agent who’d advised them.

The men offered to perform a sex act in front of an adult witness. The RRT declined. It couldn’t be running a porn shop. The two were told they were straight – and to pack their bags.

In fact, apart from some of the details about the conduct of the hearing, most of this was old news, though you could be forgiven for not picking it up because of the system of pseudonymous naming of decisions which is ostensibly designed to protect the applicants in the event that their claims are not upheld and they have to return to their country of origin.  The decision of the Federal Magistrates Court dismissing the appeal from the Refugee Review Tribunal has been available on the internet since last year, although the decision of the Tribunal itself, handed down on 14 January 2005, was not amongst those selected for publication in this manner.

It is easy to see how the system is stacked against the applicants.  When appealing against a decision by the tribunal, the applicant is bound by all the tribunal’s findings of fact, unless it can show that these are affected by jurisdictional error.  But when the decision goes back to the tribunal for a rehearing, all bets are off, and the applicants cannot hold onto any findings of fact which were previously made in their favour.  This is contrary to the normal position in legal proceedings, where, once an issue has been decided in a party’s favour against another party, the party in whose favour the finding was made has the benefit of “issue estoppel” so that the party on the losing side cannot simply go on arguing over and over again the point which it has already lost.  This argument was rejected by the Tribunal and on appeal to the Magistrates Court.

You might also think that, in a case such as this, the applicants would be entitled to be represented by their barrister, who was familiar with this case, and who had taken it to the High Court and was still representing them before the Tribunal.  After the hearing when the argument about “issue estoppel” was made and rejected by the Tribunal, a date was set down for a further hearing about the factual issues.   The applicants’ barrister said that he would not be available on this date, and indicated a range of dates in the relatively near future when he would be available.  There are occasions where the “availability of counsel” is used by parties as a tactic to delay a hearing when it appears that this is simply an attempt to delay an inevitable adverse finding, but given the long history of this case and the relatively short delay which this would have entailed, it is hard to see that the tribunal needed to come to such a conclusion in this case. It may be that the tribunal member considered that the arguments raised at the first hearing were themselves something of an ambush which had been designed to delay matters, as it informed the applicants’ migration agent:

There is nothing arbitrary about the setting of the Hearing on 28 October 2004. These matters have already been delayed once and the Tribunal has a duty to not to delay them further.

The tribunal refused to reschedule the hearing to enable the applicants’ barrister to represent them.  It considered that it was sufficient that their migration agent could attend.  In the event, they were represented by their solicitor, and subsequent written submissions were made by the barrister.  In the hearing, the tribunal member revisited a number of inconsistencies in the applicants’ previous evidence.  He also referred to information which he had received the day before the hearing, to the effect that the DIMIA (the relevant government department) had received two anonymous calls from within the community to the effect that the applicants were not homosexual, and to information provided on visa application forms by the brother of one of the applicants to the effect that the applicants were in fact cousins and had been married (the applicants otherwise claimed to have an aversion to marriage).  In the end, the tribunal member held:

“The Tribunal finds that the Applicants are close relatives who are, or have been married to women. The Tribunal’s finding is based on evidence provided by them and by [SZFSG’s] brother. The Tribunal does not rely on the evidence of the anonymous caller to DIMIA in relation to these or, in fact, any adverse factors in the Applicants’ respective cases. However, the Tribunal is also of the view that the anonymous caller’s evidence does not help their cases. The Tribunal considers that it is important to make this clear because the Applicants have made unsupported claims about the caller having acted on behalf of either a homophobic section of the Bangladeshi community or DIMIA or both. The Tribunal does not accept those suggestions. For the reasons stated, the Applicants’ being close and married relatives is at odds with their being a homosexual couple who met by chance in 1994 and lived exclusively with each other in Bangladesh for four years until coming to Australia together. The fact that they are married knocks out their claims about their aversion to heterosexual marriage”.

Tribunal Member Luke Hardy 

As ever, there is a twist to this story.  Paul Toohey, in The Bulletin writes that:

The RRT member who ruled R and J were not gay is himself gay.

I don’t know whether Toohey checked this with the tribunal member, Luke Hardy.  Presumably, Paul Toohey’s source was Mr Levet, the barrister in question, to whom Toohey spoke before writing the story.  Luke Hardy is described on the Refugee Review Tribunal’s 2002-2004 Annual Report as follows:

Luke Hardy was first appointed to the RRT in 1993. Prior to that he was on the staff of UNHCR in Thailand and Indonesia, working on the Comprehensive Plan of Action for Indo-Chinese asylum seekers. His MA was in Latin American Studies, examining the predicament of Salvadoran refugees in Honduras in the 1980s. He has worked on two documentaries about refugees, one filmed in Laos and the other on the Iran-Iraq border. From 1986 to 1991, he was the Executive Director of the Refugee Council of Australia, and before that, in the early 1980s, he worked with a Commonwealth government-funded resettlement orientation program in Phanat Nikhom refugee camp, Thailand.

Toohey continues:

Maybe his “gaydar” is a finely calibrated machine that detects pretend gays; maybe not. During an appeal in another gay case, a magistrate said the member had “preliminary views incapable of alteration regarding male homosexuals” and “a closed mind” about gays. (The magistrate’s ruling was later overturned.)

Although the magistrate’s ruling was later overturned by the Full Federal Court, there was a subsequent appeal to the High Court.  A grant of special leave was made by the High Court in November 2004, where Mr Hardy’s judgment was subjected to a certain amount of criticism.  By consent (that is, the department finally agreed that there had been a jurisdictional error) Mr Hardy’s decision was subsequently set aside and the matter remitted to the tribunal to be decided again.  I haven’t been able to work out what has happened in that case since.

In another case heard in 2005 Mr Hardy tested a Pakistani applicant’s claim to be homosexual and found it wanting by reason of, amongst other things, inaccuracies in the applicant’s recollection of the procedure in the changing room at Sydney’s “Bodyline” gay sauna. Mr Hardy relied in part on what he (perhaps rather coyly) described as “research conducted by the other Tribunal members ” (the mind boggles).  This decision was upheld on appeal to the Federal Magistrate’s Court in 2006.

And there is another twist.  In the case involving R and J, the two Bangladeshis, Toohey reports in The Bulletin:

At the time of going to press, government solicitors had contacted the men’s lawyer conceding the RRT member made a “jurisdictional error” at the second RRT hearing. The case is to be remitted to the RRT for a third hearing.

This seems strangely reminiscent of what happened in the previous case which had been heard by Mr Hardy, where the referral to a further hearing means that there has been no ruling on whether Mr Hardy exhibited bias or otherwise failed to reach a proper decision.  From my own experience in conducting matters against the Commonwealth, it should not be thought that the department is throwing in the towel in either of these cases.  The sagas continue.

Senator Nettle goes in to bat  

Paul Toohey also refers to the case of Ali Humayan, which I have blogged about   previously:

“This comes after news that a bisexual Pakistani man has been shown the door because an RRT member said the man’s bisexuality was “simply the product of the situation where only partners of the same sex were available”. That is, in Sydney’s Villawood Immigration Detention Centre.”

 As she had promised, Senator Kerry Nettle raised that case, as well as other matters ventilated in the Bulletin article, at the Senate estimates committee hearings.  You can read the transcript here, starting from about page 22.

Training for tribunal members 

Senior Member Karas, appearing on behalf of the tribunal, seemed to say that the Tribunal would look into the question of providing its members with training in sexuality-related issues.  This made the front page of the Sydney Star Observer.

But how much will such “training” really help?  How would even a “well-trained” tribunal member be assisted in deciding if applicants were gay and faced persecution for this if their application were rejected?  In the case of R and J, the two Bangladeshis, Toohey wrote in The Bulletin

For what it’s worth, R and J seemed gay to me. J, 34, is a classic peeping-voiced queen. R, 54, is the bloke in the relationship – assuming one exists. R says that while he was growing up, he was constantly being set upon by his father’s devout fundamentalist friends.

 I think he means “piping-voiced.”

In the  readers’ feedback to this story, one reader commented (I think justly):

“Please, Mr Toohey… if your (presumably) external ideas of gay relationships are such that you still hold on to the prehistoric cliche of “he” and “she” existing in gay male relationships, I can’t imagine that your opinions on their possible sexuality mean too much. At least you qualified your opinion with your “for what it’s worth” and an offhand “assuming one exists”.

But really… in today’s world of metrosexuality, masculine male homosexuality, and blurred subcultural lines, one would hope that the way someone speaks would not offer any sure indication of what they may do in bed, or with whom. Shame that you saw to perpetuate the idea in your story.”

Even what people do in bed, or before a witness, as R and J allegedly offered to do for Mr Hardy’s benefit, would not necessarily take matters any further.  In the world of prostitution or pornography, the concept of “gay for pay” is quite familiar. There is no reason to suppose that people are not also capable of being “gay for stay.”

Nor is it clear that the institution of “sexuality-related training” would make much of a difference.  For what it is worth (to coin a phrase), Mr Hardy seems to me to be quite knowledgeable about such issues.  In WAAG, he commented:

The Tribunal has already acknowledged that there is no tried and true test for establishing an individual’s innermost personal convictions. A person can boast a political opinion and articulate it in a most unconvincing way and yet be utterly sincere. The Tribunal thus well understands that it should not expect all or any homosexual men in Iran to take an interest, for example, in Oscar Wilde, or in Alexander the Great, or in Naguib Mahfooz, or in Greco-Roman wrestling, or in the songs of Egypt’s tragic muse Oum Khalsoum, let alone, say, in the alleged mystique of Bette Midler or Madonna. There are always political, social and potentially intangible cultural considerations to take into account. However, the Tribunal was surprised to observe such a comprehensive inability on the Applicant’s part to identify any kind of emotion-stirring or dignity-arousing phenomena in the world around him. In his evidence, absolutely nothing in the world speaks to him in his claimed isolation from Iranian society. It is strange that a purportedly isolated and ostracised person does not even appear to have looked for such things.

The Tribunal stresses that it was not looking for evidence of engagement with `high culture’.

The Tribunal put all of these elements together: the inconsistencies about the first sexual experience; the uniformity of the relationships and of most of their conclusions; the complete absence of a `gay’ circle of friends; lack of evident contact with the `gay’ underground; lack of other forms of identification. Cumulatively, and in some instances on their own, these elements strongly argue a lack of reality.Of albeit less significance, the Tribunal notes that other potential indicators of life’s realities are also missing from the Applicant’s account: whilst he found fulfilling partners at every stage of his career, his evidence shows no unrequited attractions, no unwelcome suitors, no mistakes. Even ignoring this, his story is simply unbelievable.

This does not read like the decision of a man who is in need of education about sexuality issues, even though the approach he took was subject to a degree of criticism in the High Court (and by Federal Magistrate Raphael).  If anything, the criticism would be that he was well-informed about such issues, but that these preconceptions unduly affected his approach to the particular case.  This, together with an unguarded manner of expression left his reasoning open to criticism which a legally-trained tribunal member could well have been able to avoid.

Two final comments

As I commented before in relation to Mr Humayun, the whole system of immigration law is unfair.  If the system is unfair, there is something odd about talking about people obtaining an unfair advantage within that system by “queue jumping,” which is the accusation often levelled against claimants for refugee status.

Secondly, these stories are complicated, and I have necessarily had to simplify matters in this post.  You don’t need to take my word for it though.  You can always click on the links.

8 Responses to “Are You Gay? Can you prove it?”

  1. Legal Eagle Says:

    It is very difficult to pin down concepts such as “gay” and “straight”.

    I knew a woman who was in a long-term three year relationship with another woman, but did not identify as “gay” – she said “I just happened to fall in love with another woman”. I knew of another woman who identified as “gay”, but in between her various long-term female partners, she had a few “flings” with both men and women – did the fact that some of her flings were with men make her “not gay”?

    What would the Tribunal have to say about either of these women if they had applied for refugee status? Would they be gay or straight?

  2. marcellous Says:

    I’ll start off with the legal angle to your question in the context of refugee law.

    The starting point is that the applicant must have “a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion.” (section 36 of the Migration Act)

    That is why the cases focus on the applicant “being” something.

    I don’t think that what people call themselves is in any way determinative of what they are (and in any event, the operative question is what other people are likely to call them and how they might be treated accordingly). However, the tribunal does have to call applicants something in the sense of identifying them as members of a group by reason of which they have a well-founded fear of being persecuted. In order to make an application for refugee status, the applicant would also have to engage in this exercise by self-naming to this extent.

    Supposing that the conduct of either of these women would expose them to persecution in the country to which they would otherwise be returned, I don’t think the question of whether this meant that they should be labelled as lesbian or bisexual should be an impediment to their being found to be members of a social group by reason of which they had a well-founded fear of persecution. Being “gay” or “lesbian” is only a staging-point in the reasoning which leads to the determination of the claim, and indeed Mr Humayan’s claim, based on bisexuality, indicates that his advisors were of the view that such a claim, if established, would have been sufficient.

    The category of “groups” is not closed: the important point (in theory at least) is that the persecution has some kind of socially systemic nature so that it can be described as directed against a group rather than simply against an individual, and that the person really is a member of such a social group which attracts such persecution (my periphrasis: you could say “or by reason of their membership of which, they have a well-founded fear of persecution”).

    As to your more general point about sexual orientation as a reified “thing”, on reflection I think that might need more than a comment to address all or even just a few of the issues, though if anyone wants to have a stab at it, I will read with interest.

  3. rahat Says:

    im male 28 from bangladesh…im gay.i love my gay partner.n would lie to stay in austrilia…….dnt know how to get visa n how wud i do the process to get visa wuld u plz help me………..

  4. rahat Says:

    its really tuff to stay in bangladesh for gay people.i cant act anymore in social life.i know my family n social comunity will not accept me..its hurting me.ij ust want to leave the country.and i wud like stay austrilia.wuoild u plz suggest me how wuold i get visa…..

  5. marcellous Says:

    I am sorry to say that I believe it is most unlikely that you will get a visa as a gay refugee from outside Australia. Offshore applications are according to quotas and the Australian government’s own selection. I doubt if they will select any gay people, at least if they are still living in their own country. If you can otherwise get to Australia you could make an application once you were here, but I expect that if you had first made an inquiry about coming as a refugee they would make sure that you could not get any other visa.

  6. A Khosru Says:

    I am Bangladeshi gay. My partner who live in Australia. We make relation by internet. Every day we talking over phone & always we send letter, card etc. by postage. We love very much each other. now we want to live together at Melbourne Australia how can it will be possible?

    Please inform me how I can apply for Australian visa. My partner is ready for sponsorship

  7. dondon Says:

    Gay ba ako?

  8. Fadi Danhach Says:

    well, what I am trying is different , I always go through the official way even it takes longer time than problems. I am Syrian and forced to leave my country and be far away from my boyfriend, after struggling for 2 years I had settled in GCC and start working but due to the ban of Syrian in GCC I have no options to live with my love, after a relationship last for more than 5 years, I still can’t imagine my life without him, it is one of the reasons why I am still trying to move to a country believe in us, does not harass us or jail us, a country would say to us welcome and you can work and proof yourself and be the couple you want, and nobody will ask you!

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