Appellants S395 & S396 v Australia Minister for immigration and multicultural affairs, 2002

The appellants are two Bangladeshi citizens who applied for protection visas in Australia due to the fear of persecution in their country. The same-sex couple lived for four years in Bangladesh and during that period experienced a variety of violent incidents and harassment by members of their families.
Their claim was refused by a delegate of the Minister of Immigration and Multicultural Affairs and later affirmed by the Refugee Review Tribunal. Despite recognizing that in Bangladesh homosexual people cannot live openly and constitute a ‘particular social group’ according to the 1951 Convention, the Tribunal found that ‘Bangladeshi men can have homosexual affairs or relationships, provided they are discreet’. After the rejection by a single judge of the Federal Court the applicants appealed to the Full Court of the Federal Court who refused their application on the basis that ‘they did not put this case forward to the Tribunal and it would be wrong to allow it to be raised now in an appeal from an application for judicial review’. The appellants were granted special leave to appeal to the High Court. The Australian High Court found that the tribunal had erred in implicitly dividing the relevant social group into two separate groups, one consisting of discreet gay men and one consisting of non-discrete gay men. Because claiming refugee status is asserting an individual right, the question of whether or not a gay man from Bangladesh has a well-founded fear of persecution cannot be determined by assigning him to the discreet or non-discrete group of homosexual males and then determining the probability of a member of that group suffering persecution. The Court ordered the Refugee Review Tribunal to redetermine its review of the Immigration Department’s decision.

Toonen v. Australia, Communication No. 488/1992

This case was presented by Nicholas Toonen, an Australian citizen resident in Tasmania, a leading member of the Tasmanian Gay Law Reform Group. Toonen complained to the UN Human Rights Committee that two provisions of the Tasmanian Criminal Code, namely, sections 122 (a) and (c) and 123, which criminalize various forms of sexual contact between men, including all forms of sexual contact between consenting adult homosexual men in private, were a violation of his right to privacy under Article 17 and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).
Toonen complained that the above sections of the Tasmanian Criminal Code empower Tasmanian police officers to investigate intimate aspects of his private life and to detain him if they have reason to believe that he is involved in sexual activities which contravene the above sections.
The Committee found that adult consensual sexual activity in private is covered by the concept of ‘privacy’ and that Toonen was affected by the continued existence of the Tasmanian laws, which continuously and directly interfered with his privacy, despite their lack of recent enforcement.
The Committee noted that ‘the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV’, further adding that ‘The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection.’
The Committee found that the Sections did not meet the ‘reasonableness’ test in the circumstances of the case and that they arbitrarily interfered with Toonen’s right under article 17, paragraph 1.
The Human Rights Committee, therefore, found that the facts before it revealed a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant. The author was entitled to a remedy under article 2(3)(a) of the Covenant, and the opinion of the Committee was that an effective remedy would be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code, and requested a response from the Federal government in 90 days.