TWO gay men from Bangladesh who offered to have sex before Australian immigration officials to prove their sexuality will appeal their case for protection visas for the fourth time in 10 years.

The men, who cannot be named, told The Daily Telegraph they feared being killed if their latest bid for refugee status is refused at a hearing later this month.

A Federal Court judge recently criticised the Refugee Review Tribunal for its treatment of the pair, who first applied for asylum in 1999, finding it was deliberately biased against them.

In a scathing summation, Justice Spender found three previous tribunals had unreasonably twisted facts to deny the men were homosexual, using unsubstantiated claims they were brothers who had been married to women.

While a first tribunal found they were homosexual, it refused them entry on the grounds they could avoid persecution in Bangladesh if they "lived discreetly". The High Court later upheld their appeal stating the gay men faced a "real risk" of harm if they were deported and could not reasonably be expected to live in hiding.

A subsequent tribunal then used an anonymous phone call to contest the men were brothers, a claim later disproved by DNA testing.

Increasingly frustrated by the process, the couple said in a submission: "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."

In a 2007 hearing, the tribunal asked one of the two men "if he and the second applicant have sex in the morning" and "if they used a lubricant." The 36-year-old said he had been "too embarrassed to answer the personal questions", with his refusal later used as proof he was a not a credible witness.

Human rights lawyer Bruce Levet, who represents the men, described the tribunal's conduct as "disgraceful" adding: "I was ashamed to be a lawyer."

Because the men had lived monogamously for 14 years and did not frequent gay bars or take an active part in the gay community, Mr Levet said they had struggled to convince the hearings of their sexuality claims. He said the Commonwealth had resisted granting the asylum test case for fear of a pink wave of refugees from countries opposed to homosexuality.

The pair, who live in southwest Sydney, fled Bangladesh in 1999 after they say they were stoned, kicked and punched during a violent attack.

The Tribunal will announce a new appeal date on October 18.

Originally published as 'We'll have sex to prove we're gay'