Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

In *Appellant S395/2002 v Minister for Immigration and Multicultural Affairs*, the High Court of Australia considered appeals by two Bangladeshi nationals who sought Protection Visas. The appellants, who identified as homosexual men, claimed a well-founded fear of persecution in Bangladesh. Their applications were refused by the respondent, and this decision was affirmed by the Refugee Review Tribunal. The matter proceeded to the Federal Court and ultimately to the High Court.

The central legal issue before the High Court was whether the Refugee Review Tribunal had erred in law by finding that the appellants did not face a real chance of persecution because they conducted themselves discreetly and would continue to do so. This raised the question of whether a requirement to act discreetly to avoid serious harm constituted persecution under the Refugee Convention. The Court also considered whether the appellants' chosen mode of conduct was voluntary and whether it would provoke persecution.

The High Court accepted the respondent's submissions, finding that the Tribunal had not imposed a requirement of discretion on the appellants. Instead, the appellants had chosen to live discreetly, a choice not dictated by external imposition or fear of persecution. The Court distinguished between persecution and disapproval, even strong disapproval, noting that the drafters of the Convention were addressing refugees in the context of post-World War II Europe and not seeking to guarantee all human rights. The appellants had not demonstrated that any expression or manifestation of their homosexuality was likely to provoke persecution, nor did they express a desire to engage in activities aimed at securing greater toleration of homosexuality.

In each matter, the High Court allowed the appeal with costs. The orders of the Full Court of the Federal Court were set aside, and in their place, the appeals to the Federal Court were allowed with costs. The orders of Lindgren J were also set aside, with the applications granted with costs, the decision of the Refugee Review Tribunal set aside, and the matters remitted to the Tribunal for redetermination.