1620706 (Refugee)

The applicant, a citizen of Iran, sought review of the Refugee Tribunal's decision to refuse their application for a protection visa. The applicant claimed to be a homosexual, lesbian, and to have a gender expression that was masculine, evidenced by their dress. They asserted that these characteristics placed them within a particular social group and that they faced persecution in Iran due to societal discrimination and a lack of state protection. The matter came before the Federal Circuit and Family Court of Australia.

The court was required to determine whether the applicant's claims of being a homosexual, lesbian, and having a masculine gender expression constituted membership in a "particular social group" for the purposes of the *Migration Act 1958* (Cth). Further, the court had to assess whether the applicant had a well-founded fear of persecution in Iran based on these characteristics, considering both state persecution and societal discrimination, and whether the Iranian state was unable or unwilling to offer protection. The existence of a genuine continuing relationship was also a factor to be considered in the assessment of the applicant's claims.

The court considered the established criteria for identifying a "particular social group," which requires the group to be defined by characteristics that are immutable or fundamental to identity, and that are recognised as such by society. The court analysed the evidence presented regarding societal norms and discrimination in Iran concerning homosexuality, gender expression, and masculine dress. It was necessary to determine if these factors, individually or collectively, rendered the applicant a member of a particular social group to whom Australia owed protection obligations. The court's reasoning would have involved an assessment of whether the fear of harm was well-founded and whether the state protection was inadequate.