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Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs, High Court of Australia (9 December 2003)

Procedural Posture

Judicial review by the High Court of Australia of a decision of the Refugee Review Tribunal.


Under Section 36(2)(a) of the Migration Act 1958 (Commonwealth) a non-citizen could be granted a protection visa if Australia owed them protection under the 1951 Convention Relating to the Status of Refugees. Under Article 1A of the Convention a non-citizen would qualify as a refugee if, “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”.

The appellants arrived in Australia from Bangladesh and applied for protection visas. They claimed they had a well-founded fear that, if they returned to Bangladesh, they would be persecuted because of their homosexuality. A delegate of the respondent Minister denied their claim. The Tribunal then rejected the appellants’ applications for a review of that decision. The Tribunal affirmed that the appellants, as homosexual men, were members of a social group for the purposes of the Convention, but were not refugees because they did not have a well-founded fear of persecution if returned to Bangladesh.

The Tribunal found that homosexuality was not accepted in Bangladeshi society and that homosexual sexual acts were criminalised under Section 377 of the Penal Code of Bangladesh. Prosecutions were rare but it was nevertheless impossible to live openly as a gay man in Bangladeshi society without risk of serious harm. However, the Tribunal concluded that homosexuality was generally ignored rather than openly confronted and that men were able to have homosexual relationships provided they were “discreet”. The Tribunal found that the applicants had not previously suffered serious harm on the basis of their sexual orientation and there was no “real chance” that they would be persecuted if they returned to Bangladesh. The Tribunal held that the appellants had “clearly conducted themselves in a discreet manner” and there was “no reason to suppose that they would not continue to do so if they returned home now”.


Whether the applicants, as homosexuals, were required to modify their behaviour by acting discreetly in order to avoid persecution; whether the Tribunal erred by dividing the social group of homosexual men into ‘discreet’ and ‘non-discreet’ sub-categories.

Domestic Law

Migration Act 1958, Sections 36(2)(a) and 476(1)(e).

International Law

1951 Convention Relating to the Status of Refugees, Article 1A.

Reasoning of the Court

The High Court found 4 to 2 for the appellants. The majority delivered two separate joint-judgments. Both majority opinions found the Tribunal’s implicit finding, that homosexual men would not be subject to persecution if they acted discreetly, to be problematic. When the Tribunal stated that there was no reason to suppose that the appellants would not continue to act discreetly if they returned home, it had effectively broken the social group of “homosexual males in Bangladesh” into two sub-categories, those who were discreet and those who were not. The Tribunal implied that it would be more difficult for a “discreet” homosexual to obtain asylum because he would be less likely to suffer persecution. In creating this “false dichotomy”, the Tribunal had fallen into jurisdictional error.

Justices McHugh and Kirby held that the Tribunal’s decision was wrong in principle to the extent that it created a requirement or expectation that asylum seekers should take reasonable steps to avoid persecutory harm. They held that “persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality”. An analogy to racial and religious persecution was illustrative. The object of the Convention itself would be undermined if individuals were required to modify their beliefs or opinions or to conceal their racial or national identities as a prerequisite to receiving protection. The same was true for the social group of homosexual Bangladeshi men.

The Tribunal had failed to consider how the appellants’ conduct was influenced by the threat of serious harm; whether the appellants had acted discreetly in order to avoid harm; and, whether this in itself constituted persecution. In doing so, the Tribunal had misdirected itself on the issue of discretion and had not properly considered the appellants’ claims that they had a real and well-founded fear of persecution if they returned to Bangladesh. The real question was whether the harm that would be suffered was such that, “by reason of its intensity or duration, the person cannot reasonably be expected to tolerate it”.

Justices Gummow and Hayne also held that it would be wrong to expect an applicant for asylum to live discreetly so as to avoid persecutory harm. The Tribunal had no jurisdiction to compel applicants for asylum to behave in a certain way in their country of nationality. The Tribunal had asked the wrong question by placing an emphasis on the “discreet” conduct of the appellants, rather than contextualising and considering the adverse consequences that their sexual identities had within Bangladeshi society. The use of terms such as “discretion” and “being discreet” in connection with sexual expression could be misleading and, by using such terms, the Tribunal had distorted the real issue of whether the appellants had a well-founded fear of persecution within the meaning of the Convention.

The appeal was allowed and the original decision set aside. The matter was remanded to the Tribunal for re-determination.

Appellant S395-2002 v. Minister for Immigration and Multicultural Affairs, High Court of Australia (full text of judgment, PDF)