Melbourne Age April 9 2003
By Rod McGuirk
A gay couple took a claim for asylum to the High Court yesterday in a world-first case, arguing that they could not live openly homosexual lifestyles in Bangladesh.
The men say they were ostracised by their families and community, stoned, whipped and risked police bashings after being exposed as a gay couple. Their local Islamic council had issued a death sentence against them.
The seven judges of the High Court reserved their decision.
The men, who have lived together since 1994, came to Australia in February 1999. They applied two weeks later for protection as refugees from persecution.
Their barrister, Bruce Levet, told the court that the Refugee Review Tribunal agreed they could not live in an openly gay relationship in Bangladesh. But it rejected their refugee application on the basis that they would face no further problems if they were discreet about their sexuality.
He argued that on that basis, the tribunal would have found Anne Frank was safe to remain in Amsterdam during World War II as long as she continued to live discreetly in an attic. (The Jewish teenager was discovered by the Nazis after hiding in an attic for three years and died in a concentration camp.)
"The finding of fact is that they would not be permitted to live openly," Mr Levet said.
"They would be subjected to a range of problems, including the possibility of being bashed by police."
The Bangladeshi criminal code carries a maximum life sentence for the crime of sodomy.
Stephen Gageler, SC, counsel for the Immigration Minister, said the principle of the case was whether denial of freedom to express sexual preference could be described as persecution.
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