Page:ASF17 v Commonwealth of Australia.pdf/45

Edelman J

serious harm with its menacing implications that constitutes the persecutory conduct."

122 None of these matters was considered by the primary judge. There was no consideration of whether ASF17, as a bisexual man, would find it necessary to act or behave in a way that conceals his sexuality to avoid the threat of execution. It is, however, unclear from the materials before this Court whether a fear of persecution on this basis was ever raised by ASF17. Perhaps the closest that this issue came to being raised before the primary judge was in the unconfined assertion by the Commonwealth in cross-examination of ASF17 that ASF17 would not fear harm on return to Iran because he was bisexual.

123 In this Court, the Solicitor-General of the Commonwealth submitted, without demur from ASF17, that in relation to matters of this nature "there was nothing before [the primary judge] of the kind that would need to be considered by a decision-maker to properly evaluate whether non-refoulement obligations are engaged". In the absence of any dispute on this point, and based on the materials before this Court, it must be concluded that ASF17 presented no case before the primary judge other than on the narrow basis, rejected by the primary judge, that he would be persecuted due to the knowledge of the authorities of the event when he was found by his wife in bed with another man. On that basis, this Court could not disturb the primary judge's finding that ASF17 did not have "a genuine subjective fear of harm if removed to Iran based upon the claims he has made as to the reasons for that subjective fear".

Conclusion

124 In The Commonwealth v AJL20, the majority joint judgment said that ss 189(1) and 196(1) of the Migration Act "are valid in all their potential applications". In the context of the whole of their reasons, their Honours cannot be taken to have expressed that proposition without qualification. In NZYQ, six members of the Court qualified the proposition in The Commonwealth v AJL20 by holding that ss 189(1) and 196(1) did not apply where the legitimate purpose of removal of classes of aliens from Australia was "refute[d]" in particular cases in which removal had no real prospect of being achieved as a matter of practicality in the reasonably foreseeable future. Again, in the context of the whole of their