Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473
Outcome: distinguished
In written submissions, the appellant argued that this reasoning showed that the Tribunal failed to understand and properly apply s 91R(1)(a) and (2) of the Act , because it did not address whether belonging to the relevant social group led to persecution (within the Act ), but instead assessed another social group (sexually overt people of any persuasion) that was not before the Tribunal. Put another way, the appellant submitted that the Tribunal failed to consider whether he would be persecuted because of his imputed membership of the social group that was the subject of his claim. If the Court accepted this submission, it would establish relevant error: see Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 (" S395/2002 ") at 486 [31] per McHugh and Kirby JJ. 19 The appellant also maintained that the same passage showed a second error, because, as their Honours said in S395/2002 at 491 [46], in considering the very same law, "the Tribunal was obliged to go on to consider the other implications of the existence of the law in respect of possible persecution". He submitted that the Tribunal failed to do so. The appellant also contended that his Honour not only erred in failing to appreciate this but also "by finding that the Tribunal found that the appellant could live in Bangladesh 'without being imputed with homosexuality'". The appellant argued that the Tribunal made no such finding and merely found that "persecution on that ground would not constitute persecution for a Convention reason based on the flawed reasoning" to which he referred. The appellant augmented these arguments at the hearing. 20 Following these submissions, the appellant was granted leave to file an amended notice of appeal, which included two further grounds. They read as follows: 4. His Honour erred in finding that the Tribunal's decision was not affected by jurisdictional error in that the Tribunal failed to consider the applicant's claims to fear persecution because of his likely imputed membership of a Particular Social Group being gay men in Bangladesh. 5. His Honour erred in finding that the Tribunal's decision was not affected by jurisdictional error in that the Tribunal failed to consider whether gay men (imputed or actual) as a Particular Social Group were the subject of persecution in Bangladesh for the purposes of the Convention as modified by the Act . 21 It suffices to say that the first respondent contended that none of the grounds of appeal were made out. 32 This case is different from S395/2002 , because in this case the Tribunal found that: (1) the appellant was not in fact homosexual; (2) the appellant had fabricated his claim to be homosexual in order to support his protection visa application; (3) although a homosexual demeanour might be attributed to him in Australia (on account of his activities here) it was unlikely that these activities or subsequent activities in Bangladesh would result in a homosexual demeanour being attributed to him in Bangladesh; and (4) even if such a demeanour were attributed to him, he would not be subjected to serious harm amounting to persecution for a Convention reason. In contrast to S395/2002 , this is not a case where the Tribunal made a decision adverse to an applicant upon the basis that he could avoid persecution by modifying his customary behaviour.