Disagreement about the mechanics of that questioning and implicitly of prioritisation (some people are construed as more worthy than others) is evident in the NAOX v Minister for Immigration & Citizenship [2009] FCA 1056, a judgement by Spender J of the Federal Court.
The Court strongly criticised the Refugee Review Tribunal (RRT), an administrative review body that reports to the Minister and is concerned with decisions by the Minister's department under the Migration Act 1958 (Cth) [here] regarding refugee status.
It found that the RRT had ignored evidence and twisted facts in dealing with the claim for asylum by a gay Bangladeshi couple, concluding that the Tribunal's ruling that the men were not gay (and would therefore not face persecution in their homeland and thus were not legitimate refugees) was "not an exercise in honest fact finding".
The Court considered that the RRT decision was "not made in good faith", being "deliberately calculated" to get round problems caused by a High Court ruling - Appellant S395/2002 v Minister for Immigration & Multicultural Affairs; Appellant S396/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 - in relation to an earlier decision on the two men by the Tribunal. In thus characterising the RRT's decision-making Spender J commented that "Such a finding is one that is not reached lightly, and unsurprisingly is one that is very rare".
The men had arrived in Australia in 1999 and applied for protection visas. That required them to persuade the Department that each was a person who
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.The Department refused to grant either man the requested refugee status, on the basis that
In his circumstances, if he believes that his homosexuality, and his relationship, would not be acceptable to the community in which he is living, it is only reasonable to believe that he should be discreet about such matters.Being gay does not necessarily equal persecution and therefore result in refugee status.
In considering the Department's negative response to that application the RRT accepted that the men engaged in same sex activity but ruled that they could not gain protection as refugees because they would not face persecution, if returned to Bangladesh, as long as they were "discreet about such matters". Don't ask, don't tell and definitely don't do anything to alert a mullah, a vigilante or a representative of the police, given that homosexual intercourse is a criminal offence under s 377 of the Penal Code of Bangladesh.
In hearing an appeal from the Federal Court the High Court said that the Tribunal did not seriously consider the threat of physical harm (including violence by police). It ordered a review of the decision, although noting disagreements about both evidence and interpretation. Callinan and Heydon JJ for example commented
The great difficulties for the appellants were that the accounts of their experiences in Bangladesh and the attitude of society and officials there to homosexuality, were not only full of inconsistencies but also of improbabilities. That is why the Tribunal found against them.The Tribunal then found the men "were not homosexual" and that they had not lived in a homosexual relationship, concluding instead that they were close relatives and indeed been married to women (regarded as a litmus test for sexual affinity and thus refugee status, although arguably not definitive, as men with a stigmatised same sex affinity might choose to marry out of fear or for cultural reasons).
Spender J commented that "Confronted by this judgment in the High Court, the second Tribunal found the only way out to justify the refusal of the protection visas. It found that they were not homosexuals after all". He notes that the men used DNA tests to disprove claims that they were related. He commented that the Tribunal had "irrationally and indefensibly" interpreted the results of those tests as indicating that the men might be cousins. Its treatment of the DNA tests had been "contrived to support a predetermined result".
The men were presumably somewhat distressed, responding to the Tribunal's scepticism by offering to have sex in front of a witness nominated by the RRT.
Should you require it (although such a step would cause us significant embarrassment) we are prepared to have an adult witness view us engaged in an act of homosexual intercourse and then attest before you to that fact. It would be illogical were you to refuse such an offer and then go on to find ... that we are not homosexual.That seems to have unimpressed the bureaucrats, with the RRT finding that one of the men was not a credible witness because he refused to answer questions about whether they used lubricants during sex, a refusal justified on the grounds that such matters were personal. The Court commented that it was unfair to declare him not credible, simply because he failed to answer a question about lubricants which had been prefaced with "Now you may not want to answer this question".
Spender concluded that the material sought by the Tribunal had "the flavour of interrogation" and that the RRT was "guilty of bias, in the sense that it was predisposed to making its ultimate finding that the appellants were not in a homosexual relationship". Damningly, he commented that
I am satisfied that the decision of the third Tribunal has been moulded to support a particular conclusion, namely, that the appellants were not homosexual. I am satisfied that this was done, not as a genuine exercise of administrative fact finding to which Courts, and in particular this Court, should, and must, defer, but in an attempt to insulate the finding from judicial examination ...
