Page:ASF17 v Commonwealth of Australia.pdf/44

Edelman J

topic. It is not open to challenge that finding as "glaringly improbable" or "contrary to compelling inferences". The primary judge reasoned from that finding, together with a rejection of ASF17's other claims of persecution based upon his religion, ethnicity and opposition to Iran's mistreatment of women, to the conclusion that ASF17 did not have a genuine subjective fear of harm if removed to Iran. In relation to ASF17's sexuality, the reasoning of his Honour was that ASF17's subjective fear of harm was based upon the alleged event of being discovered by his wife and its "alleged consequences" (an apparent reference to ASF17's wife reporting him to police). A rejection of that alleged event and its consequences was considered by the primary judge to be sufficient to conclude that ASF17 had no subjective fear of harm as a bisexual man in a country where homosexual activity is subject to the death penalty.

121 In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, senior counsel for the Minister submitted to this Court that the Refugee Review Tribunal was correct to reject the applicants' claims to fear physical harm as homosexual men in Bangladesh because there was no reason to expect that they would not be discreet. But a majority of this Court held that it was an error for the Refugee Review Tribunal not to consider why the applicants might live discreetly and whether the decision to live in that way was influenced by a fear of harm. As Gummow and Hayne JJ expressed the point, "to say that an applicant for protection is 'expected' to live discreetly is both wrong and irrelevant to the task to be undertaken". And as 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 … [T]he well-founded fear of persecution held by [an] applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of