Editors --- "Asylum Seekers: Defining The Relevant 'Social Group'" [2004] AdminRw 9; (2004) 56 Admin Review 57

• Case notes
• Asylum seekers: defining the relevant ‘social group’

---

Case notes

Asylum seekers: defining the relevant ‘social group’

In both Dranichnikov v Minister for Immigration and Multicultural Affairs^[1] and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs^[2] the High Court considered the correct definition of a ‘social group’ for the purpose of a claim for refugee status. Under Article 1A(2) of the United Nations Convention Relating to the Status of Refugees, a well-founded fear of persecution because of membership of a particular social group is one of the grounds for refugee status.

In Dranichnikov both the original decision maker and the Refugee Review Tribunal had rejected the applicant’s claim on the basis that there was no evidence that he was persecuted for being a businessman in Russia. By a four–one majority the High Court held that the Tribunal had misstated the applicant’s case and failed to respond to his true claim, which was membership of a narrower social group of businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.

In the view of the majority, the applicant had consistently emphasised his public stance against crime and corruption as the basis of his claim to refugee status. Failure to respond to his case not only constituted a failure to accord him natural justice (which was not a basis for review of the decision under s. 476 of the Migration Act 1958 as it then stood): it was a constructive failure of the Tribunal to exercise its jurisdiction. Relief was therefore available in the form of writs of certiorari, prohibition and mandamus.

In S395 the two applicants claimed they had been persecuted in Bangladesh because they were homosexuals. Although the Refugee Review Tribunal rejected some of their evidence, it accepted that homosexuality was not accepted or condoned in Bangladesh and that it was impossible to live openly as a homosexual. In rejecting the applicants’ claim for refugee status, the Tribunal made several comments to the effect that it was generally possible for homosexuals to avoid difficulties if they were discreet and that the applicants had lived and would continue to live discreetly if they returned to Bangladesh.

By a four–three majority the High Court held that the Tribunal had made an error of law. McHugh and Kirby JJ, in a joint judgment, and Gummow and Hayne JJ, in a second joint judgment, considered that the Tribunal had not responded to the reasons for the applicants living discreetly and had not considered whether the applicants’ fear of persecution was well founded. On the question of ‘living discreetly’, McHugh and Kirby JJ said,

The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many—perhaps the majority of—cases, however, the applicant has acted in the way that he or she did only because of the threat of harm.^[3]

They also considered that the Tribunal had effectively divided homosexual males in Bangladesh into ‘discreet’ and ‘non-discreet’ categories. This was erroneous. It did not necessarily follow that ‘non-discreet’ homosexuals would suffer persecution or that ‘discreet’ homosexuals would not suffer persecution:

Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future. But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a ‘well-founded fear of being persecuted for reasons of ... membership of a particular social group’.

It follows that whether or not a Bangladeshi male homosexual applying for a protection visa has a well-founded fear of persecution cannot be determined by assigning him to the discreet or non-discreet group of homosexual males and determining the probability of a member of that group suffering persecution. An applicant claiming refugee status is asserting an individual right and is entitled to have his or her claim considered as an individual, not as the undifferentiated member of a group.^[4]

Gummow and Hayne JJ expressed similar reasoning:

[T]here is a serious risk of inverting the proper order of inquiry by arguing from an a priori classification given to the applicant, or the applicant’s claim, to a conclusion about what may happen to the applicant if he or she returns to the country of nationality, without giving proper attention to the accuracy or applicability of the class chosen. That is, there is a real risk of assuming (wrongly) that a particular applicant will be treated in the same way as others of that race, religion, social class or political view are treated in that country. It would, for example, be wrong to argue from a premise like ‘homosexuality is generally ignored in Bangladesh’ to a conclusion that ‘this applicant (a homosexual) will not be persecuted on account of his sexuality’, without paying close attention to the effect of the qualification of the premise provided by the word ‘generally’. Thus it would be necessary in the example given to consider whether, on return to Bangladesh, the applicant would stand apart from other homosexuals in that country for any reason.^[5]

The dissenting judges concluded that the applicants had never claimed before the Tribunal that they had needed to live discreetly for fear of harm. They had based their claim for refugee status on specific events of persecution, which the Tribunal found had not occurred because it rejected their evidence as lacking credibility.

---

^[1] [2003] HCA 26.

^[2] [2003] HCA 71.

^[3] [2003] HCA 71 at [43].

^[4] [2003] HCA 71 at [58] to [59].

^[5] [2003] HCA 71 at [77].