Appellant S395/2002 v MIMA is a decision of the High Court of Australia.[1]
| S395/2002 v MIMA | |
|---|---|
 | |
| Court | High Court of Australia |
| Full case name | Appellant S395/2002 v Minister for Immigration and Multicultural Affairs |
| Decided | 2003 |
| Citation | 216 CLR 473 |
| Court membership | |
| Judges sitting | Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ |
| Case opinions | |
| appeal allowed | |
| Concurrence | McHugh, Kirby JJ, Gummow, Hayne JJ |
| Dissent | Gleeson CJ Callinan, Heydon JJ |
The case is important to refugee law in Australia, especially for its elaboration upon legal principles as they apply to LGBTIQ asylum seekers.
Appellant S395 is the 21st most cited High Court case according to LawCite.[2][3]
Facts
edit
The appellants were two gay Bangladeshi men. Whilst in Australia they applied for refugee visas. They argued that they had a well-founded fear of persecution as members of a particular social group, if forced to return to Bangladesh.[4]
A Ministerial delegate found that if the men kept their relationship a secret, they would not suffer any serious harm; and so refused them visas for having failed to take reasonable steps to avoid harm. The Tribunal affirmed this decision to refuse them protection visas. The decision was affirmed again at review before the RRT.[4]
Appeals to the Federal Court and Full Federal Court were dismissed. They then were granted special leave to appeal at the High Court.[4]
Judgement
editThe High Court held by majority that the tribunal erred by splitting the social group of 'homosexual men' invalidly into two other purported social groups; discreet and non-discreet homosexual men.
It held while refugee visa applicants must take reasonable steps to avoid harm before a 'well founded fear' can be recognised; that this does not extend to a requirement that people facing discrimination be discreet about their sexuality.
The court then remitted the decision to the Tribunal.
See also
editReferences
edit- ^ "Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 - BarNet Jade". jade.io. Retrieved 30 May 2021.
- ^ Note: LawCite citation statistics track the written judgements of courts, journal articles, and tribunals. (both in Australia and overseas) https://www.austlii.edu.au/cgi-bin/LawCite?cit=&party1=&party2=&court=High%2BCourt%2Bof%2BAustralia&juris=&article=&author=&year1=&year2=&synonyms=on&filter=on&cases-cited=&legis-cited=§ion=&large-search-ok=1&sort-order=cited
- ^ Note: data is as of September 2020
- ^ a b c "Appellant S395/2002 v. Minister of Immigration and Citizenship". LII / Legal Information Institute. Retrieved 31 May 2021.