Mr Humayun is a Pakistani national who overstayed his student visa, on which he came to Australia in 2000. He was detained because he was caught working in contravention of the bridging visa which he was granted pending determination of his appeal against revocation of his student visa. He has applied for refugee status, and in particular because, as a bisexual man, he will face persecution on account of his bisexuality if he returns to Pakistan. This application was rejected by the immigration department, and the decision of the department was upheld by the Refugee Refugee Tribunal. He appealed to the Federal Magistrates Court. The magistrate’s court only has power to overturn a decision of the tribunal if that decision has been affected by an “error of law.” What that means is that, unless an error of law can be shown, the magistrate cannot disturb the findings of fact made by the tribunal. It is a very limited type of appeal. The appeal was unsuccessful because the magistrate found that the findings of fact which the tribunal made were open to it and not affected by error of law.
A key part of the tribunal’s finding of fact was that some of the reasons that Mr Humayun gave for why he would face persecution arose as a result of conduct by him which it characterised as being conduct undertaken for the purpose of strengthening his claim to refugee status. In a devilish twist, the law requires the tribunal, if it finds that there has been such conduct, to ignore it. This means in effect that it is possible that Mr Humayun will be persecuted, but the tribunal has ignored this on the basis that, even if that is so, this is of Mr Humayun’s own doing.
Whilst in detention, Mr Humayun had a relationship with another male detainee (who also identifies as bisexual), since released. That man now visits him regularly. On the basis of an anonymous tip-off that Mr Humayan was planning to escape, Mr Humayan is now in detention in a high-security part of the detention centre, populated largely by criminal or allegedly criminal detainees. However harsh conditions are in detention, conditions in this part of the centre are indubitably harsher.
The tribunal did not consider that the fact that Mr Humayun had a relationship with a fellow detainee established that he was in fact bisexual or would lead a bisexual life in Pakistan which would lead to him being persecuted there. In other words, just because you have sex with a man in a prison or similar single-sex institution doesn’t mean that you are gay or (as Mr Humayun claimed) bisexual. The conduct which was disregarded included Mr Humayun’s telling his family in Pakistan about this relationship, so that his claims that his family would persecute him for this were simply disregarded. This has received some publicity as a result of Mr Humayun’s appeal to the “gay community” for help, and has caused quite a lot of outrage.
Senator Kerry Nettle of the Greens has gone in to bat for this man.
It is a complicated story. You can see different aspects of it at:
(includes stories from the Sydney Star Observer, Sydney Morning Herald and a letter from Mr Humayun himself)
and some more background at:
(Federal Magistrate’s court decision which includes references to the Refugee Review Tribunal Decision)
(Full Federal Court decision in relation to revocation of student visa)
(Federal Magistrate’s court decision on appeal from the Migration Review Tribunal Decision in relation to revocation of student visa)
All migration law is fundamentally unfair. Provisions for detention are draconian. Mr Humayun has made some pretty florid claims, and some of those have not been believed. In the face of such an unfair legal regime, the temptation to do or say whatever you think you can which might get some kind of sympathetic treatment (and God knows, you need sympathy because you can’t count on much else, such as, for example, justice other than “justice according to law”) is understandable. However, this becomes a problem when, as in this case, the claim (to be facing persecution on account of sexual orientation) is one which ultimately depends on the credibility of the applicant.
Postscript:The Sydney Star Observer story I have referred to above has also attracted a range of comments. See:http://www.ssonet.com.au/display.asp?ArticleID=6505
These comments (as comments do) fly off in all directions. There is a lot of sympathy for Mr Humayun’s plight. There are also some rather off-the-wall comments about Islam and homosexuality. I should just add that these days (this was not always the case), if a claim is accepted that a person is gay, the tribunal is generally ready to accept that, in a range of countries, including Pakistan, that person will face persecution for a convention-related reason and is therefore eligible for refugee status in Australia. By extension, I assume the same would apply to claims based on bisexuality.