Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

Matter No S395/2002

APPELLANT S395/2002 APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS RESPONDENT

Matter No S396/2002

APPELLANT S396/2002 APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS RESPONDENT

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

Appellant S396/2002 v Minister for Immigration and Multicultural Affairs

[2003] HCA 71

9 December 2003

S395/2002 and S396/2002

ORDER

In each matter:

1. Appeal allowed with costs. 2. Set aside the orders of the Full Court of the Federal Court dated 20 February 2002 and, in place thereof, order that:

(a) the appeal be allowed with costs; and

(b) the orders of Lindgren J dated 26 July 2001 be set aside and, in place thereof, order that:

(i) the application be granted with costs;

(ii) the decision of the Refugee Review Tribunal dated 5 February 2001 be set aside; and

(iii) the matter be remitted to the Tribunal for re-determination.

On appeal from the Federal Court of Australia

Representation:

B Levet with P de Dassel for the appellants (instructed by Bharati Solicitors)

S J Gageler SC with S B Lloyd for the respondent (instructed by Australian Government Solicitor)

Intervener:

J W K Burnside QC with S E Pritchard appearing as amicus curiae on behalf of Amnesty International Australia (instructed by Allens Arthur Robinson)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

Appellant S396/2002 v Minister for Immigration and Multicultural Affairs

Immigration – Refugees – Particular social group identified as homosexual men in Bangladesh – Whether well-founded fear of persecution – Whether error of law by Refugee Review Tribunal in finding that no real chance of persecution because appellants conducted themselves discreetly and would continue to do so – Whether finding had effect of requiring appellants to act discreetly to avoid persecution – Whether need to act discreetly to avoid serious harm constituted persecution.