Parallel decisions of the Refugee Review Tribunal that did not accept that a pair of Bangladeshi men were “homosexual, or had sex, sexual experiences, or a homosexual relationship with [each other] or any other males in Bangladesh or Australia” were overturned on appeal when the Federal Magistrates Court noted that a compact disc given to an expert had been supplied to the Tribunal, apparently showing the two men having sex with each other.
In the case, called SZQYU v Minister for Immigration, Federal Magistrate Robert Cameron stated that before the Tribunal: “could find that the applicants were not homosexual the Tribunal had to deal… with their allegation that their relationship had a physical dimension. It did this by concluding that neither of them had ever had sex with a male, including each other. However, in order to reach that particular conclusion, it was necessary that the Tribunal consider the evidence before it relevant to that subject. The evidence of the applicants …was rejected on credibility grounds. The only other evidence on the subject was what [the expert] Dr Andrews said was depicted on the disc but that was not discussed by the Tribunal.”
In his report Dr Andrews indicated that he had interviewed the applicants and had viewed a compact disc of photographs of them having sex. He also indicated that SZQYV had told him that he had had his first sexual experience with a boy when he was fifteen years old and had had sex with “one other man” in Bangladesh before he came to Australia. SZQYV also told Dr Andrews that he met SZQYU in 2005 (in Bangladesh ) and that, while they were physically affectionate and would often kiss, they did not have sex with each other until about three months after his, SZQYV’s, arrival in Australia. Dr Andrews concluded that SZQYV and SZQYU were homosexual and in a homosexual relationship.
The Tribunal had stated that it had: “ considered Dr Andrews’ report and his view that the applicant is homosexual and that the photographs on the compact disc depict the applicant having sex with [the other applicant]. The Tribunal has taken detailed oral evidence from the applicant since Dr Andrews prepared his report and finds Dr Andrews’ earlier assessment does not overcome the Tribunal’s concerns about the applicant’s evidence.”
Federal Magistrate Cameron rejected this approach: “However, in neither case did the Tribunal say that it had considered the evidence contained in Dr Andrews’s report as material relevant to its decision. Specifically, it made no reference to the photographs of the applicants having sex beyond referring dismissively to Dr Andrews having a “view” that that was what they depicted.”
The matter was sent back for further consideration by the Tribunal.