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Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

A woman and her children applied for protection visas in Australia. The Refugee Review Tribunal refused the application. The tribunal evidence included the departmental file notes that indicated that the woman’s husband was alive in Australia and had a visa that would enable the woman and their children to remain in Australia. However, the tribunal had either overlooked the file notes or failed to appreciate their significance. It was not until after the hearing that the woman found out about her husband’s visa. She then applied to the Minister for Immigration and Multicultural and Indigenous Affairs to exercise his discretion to change the decision of the tribunal so that she and her children could stay in Australia. The Minister refused. She applied to the High Court asking the court to rule that the decision should be reconsidered. The High Court refused, by majority, holding that the tribunal was under no obligation to consider a claim that was not advanced in the application. A feminist judgment will draw on feminist ethic of care arguments to contend that tribunal members have a responsibility to properly examine file notes available to the member and to draw the attention of the parties to relevant issues in the file notes.

Commentary author

Mary Crock is a Professor in the Sydney Law School, University of Sydney. She has worked with Australian senators and with the Human Rights and Equal Opportunity Commission. Mary has a long standing interest in the intersections between legal scholarship and legal practice, and has assumed leadership roles in this area. Her main field of research is migration, citizenship and refugee law.

Judgment author

Charlotte Steer is a Sesional Lecturer in the Faculty of Law at the University of New South Wales. She teaches administrative law. Previously she was a conference registrar to the Administrative Appeals Tribunal (NSW).

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

In this case two men from Bangladesh sought refugee status under the 1951 Convention on the Status of Refugees (as amended), incorporated into Australian domestic law, on the basis of fear of persecution due to membership in a particular social group, that of homosexuals. The Refugee Review Tribunal affirmed the decision of the Department of Immigration not to grant protection visas on the basis that the men could return to their country of origin and maintain their relationship if they were discreet. This decision was upheld by the Federal Court and the Full Federal Court. A close majority of the High Court (4:3) held that the tribunal erred in dividing the particular social group into discreet and non-discreet homosexual men, by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution, and by failing to consider whether the men might suffer serious harm if it were discovered in Bangladesh that they were homosexual. A feminist judgment replacing the High Court decision would not change the outcome of the case, but would rewrite the rejection of the criteria of “discreet” behaviour to reveal its historically sedimented homophobia. It would also rewrite the guidance to tribunals on the exercise of jurisdiction to investigate the generality of a claim of fear of persecution in relation to sexual orientation to avoid ‘orientalising’ the social group and to avoid homophobia.

Commentary author

Wayne Morgan is a Senior Lecturer and Sub Dean LLB/JD Programs at the ANU College of Law, Australian National University. Wayne maintains a small anti-discrimination and human rights practice, where he advises pro-bono clients on discrimination and United Nations Human Rights Committee cases.

Judgment author

Nan Seuffert is Professor in the Law School and Director of the Legal Intersections Research Centre at the University of Wollongong. Previously, she was a Professor of Law at the University of Waikato, New Zealand. Nan’s research interests include in the areas of critical legal theory, law and history, race, gender and sexuality.