Homosexuality & Refugee Claims





In a narrow 4/3 majority, the High Court has made an important decision relating to whether refugee applicants should be required to suppress their behaviour in their country of origin.

Appellant S395/2002 v MIMA [2003] HCA 71 (9.12.03) involved a claim for protection from a homosexual male couple from Bangladesh.  They argued that they would be discriminated against if they returned to Bangladesh.  The RRT found that provided the men behaved discreetly they would not be persecuted in Bangladesh and therefore rejected the claim.  McHugh & Kirby JJ wrote a joint judgment:


  1. The reasons of the Tribunal show, however, that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunal’s findings that they do. Nor did the Tribunal’s reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution. If the Tribunal could not have properly exercised its jurisdiction without considering these matters, it has fallen into jurisdictional error….

Living openly as a homosexual

  1. The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.

41.History has long shown that persons holding religious beliefs or political opinions, being members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from their national authorities. The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them. It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality or membership of particular social groups before those countries would give them protection under the Convention.

 51.Central to the Tribunal’s decision was the finding that the appellants had not suffered harm in the past because they had acted discreetly. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, the Tribunal failed to determine whether the appellants had acted discreetly only because it was not possible to live openly as a homosexual in Bangladesh. Because of that failure, the Tribunal, unsurprisingly, failed to give proper attention to what might happen to the appellants if they lived openly in the same way as heterosexual people in Bangladesh live.

52.The Tribunal did find, however, that to attempt to live openly as a homosexual in Bangladesh “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.” That finding appears to be based on an acceptance of the evidence of Mr Khan, the Executive Director of the Naz Foundation. In its reasons, the Tribunal recorded Mr K as saying:

“[T]he consequences of being identified as homosexual vary enormously, from acceptance and tolerance, to harassment, physical abuse or expulsion from the community. Most of the harassment of males who have sex with males takes the form of extortion by local police and hustlers who threaten to expose them to their families if they do not cooperate.”

The Tribunal’s findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr K spoke. If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well-founded and amounted to persecution. That would have required the Tribunal to consider what might happen to the appellants in Bangladesh if they lived openly as a homosexual couple. Would they have suffered physical abuse, discrimination in employment, expulsion from their communities or violence or blackmail at the hands of police and others, as Mr K suggested were possibilities? These were the sorts of questions that the Tribunal was bound to consider if it found that the appellants’ “discreet” behaviour in the past was the result of fear of what would happen to them if they lived openly as homosexuals. Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants’ claims that they had a “real fear of persecution” if they were returned to Bangladesh.

  1. It follows that the Tribunal has constructively failed to exercise its jurisdiction and its decision must be set aside.

This is not that different what McHugh J said in the seminal High Court refugee case of  Chan v MIEA (1989) 169 CLR 379 at 431:

Moreover, to constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution: Weis, “The Concept of the Refugee in International Law”, Journal du Droit International, (1960), 928, at p 970. Thus the UNHCR Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par 151. In Oyarzo v Min of Empl & Immigration 95[1982]2 FC 779, at 783, the Federal Court of Appeal of Canada held that… loss of employment because of political activities constituted persecution for the purpose of the definition of “Convention refugee” in the Immigration Act 1976 (Can), s 2(1). The Court rejected the proposition that persecution required deprivation of liberty 96 [1982] 2 FC, at p 782.. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.

Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason: Goodwin-Gill, pp 38 et seq. In R v Immigration Appeal Tribunal; Ex p Jonah 97[1985]Imm AR 7. Nolan J, sitting in the QB Div, held as a matter of law that there was a well-founded fear of persecution when the adjudicator had found “that if the appellant on his return to Ghana sought to involve himself once again in union affairs, he could be in some jeopardy, but there is no acceptable evidence to indicate that he would be at any material risk if he was to resume his residence in his remote family village where he spent a year and a half immediately prior to coming to this country”  98[1985] Imm AR, at p 12.. His Lordship held that being “subjected to injurious action and oppression — by reason of his political opinion and membership of a social group opposed to the government” constituted a well-founded fear of being persecuted “in the ordinary meaning of that word”  99[1985] Imm AR, at p 13. In the USA, the 9th Circuit has also taken a liberal view of the term “persecution”. In Kovac v Imm & Naturalization Service 100(1968)407 F 2d 102, at 10 (9th Cir.), the Court of Appeals construed the phrase “persecution on account of race, religion, or political opinion” in the Immigration and Nationality Act as meaning “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive”. This definition of “persecution” was re-affirmed by the 9th Circuit in Moghanian v US Dept of Justice 101 (1978) 577 F 2d 141, at 142 (9th Cir.)..In Berdo v Imm & Naturalization Service   102 (1970) 432 F 2d 824, at pp 845-847 (6th Cir.)., the 6th Circuit approved a similar construction.

Barbara Davidson