Ground 1 of the appeal
36 By Ground 1 of the appeal, the appellant contends that, having accepted or assumed that his expression of interest in music and dance was either a fundamental characteristic of his identity or an innate and immutable characteristic of his person, it had not been open to the Authority to find that he could avoid a real chance of persecution by "exercis[ing] some discretion" by carrying out his activities "underground" and "with caution".
37 As is apparent, Ground 1 seeks to invoke the qualification on the qualification in s 5J(3) to which we referred earlier. It assumes (as the ground itself recognises) that the Authority had accepted or assumed that the appellant's interest in music and dance was either a fundamental characteristic of his identity or an innate or immutable characteristic.
38 Counsel for the appellant submitted that the Authority's decision was affected by two jurisdictional errors. The first was that the Authority had reasoned that the appellant could continue to operate in the "underground music scene" as he had in the past without considering, as required by S395, whether that conduct had, and would be, influenced by his fear of harm. The second was that the Authority had taken into account modifications of behaviour which could be expected of the appellant even though that was excluded by s 5J. Counsel emphasised in this respect the Authority's finding that there were reasonable steps which the appellant could take to modify his behaviour, including by exercising "discretion", and by carrying out his activities "underground" and with "caution".
39 The suggestion in Ground 1 that the Authority had accepted or assumed that the appellant's interest in music and dance was an "innate or immutable characteristic" of the appellant can be disposed of shortly. The Authority made no such finding and there is nothing in its reasons to support the view that it had made the claimed assumption. The Authority did not even use the terms "innate" or "immutable" or any equivalents in relation to the appellant's interest in music and dance. The appellant himself had not made a claim in those terms. Instead, with one exception, his agent had submitted that his interest in dance and music were "fundamental characteristics of his identity". The extracts from the appellant's statement set out above indicate that that was also the way in which he had sought to characterise his interest in music and dance. Finally, the submissions made on the appellant's behalf on the appeal did not seek to support Ground 1 on the basis that the appellant's interest in music and dance was either innate or immutable.
40 It seems that little attention was given during the progress of the appellant's application for a SHEV to the question of whether his interest in music and dance made him a member of a particular social group. In his written submissions to the delegate and to the Authority, the appellant's representative made no reference to a "particular social group", let alone seek to identify a group to which the appellant may belong and its defining characteristics. Likewise, the reasons of the Minister's delegate made no reference in express terms to a particular social group to which the appellant may belong.
41 The only express reference by the Authority to membership of a particular social group was in [5] of its reasons, which comprised a bare recitation of the components of a well-founded fear of persecution for which s 5J provides. The Authority did not otherwise discuss the term, identify a particular social group to which the appellant may belong, or discuss whether the appellant had characteristics which brought him within such a group. Initially, counsel for the appellant submitted that the Authority had, in [21] set out earlier, made a finding of the appellant's membership of a particular social group. However, later counsel acknowledged, in our view correctly, that [21] was in the nature of an introductory recitation by the Authority of the appellant's claims and not a finding. The Authority's reasons at [27], to which counsel also referred, may possibly involve an assumption as to the appellant's membership of a particular social group but cannot reasonably be regarded as a finding on that issue.
42 As noted earlier, the FCC Judge considered that the Authority had accepted that the appellant had made his claim for protection on the basis that he was a member of a particular social group, identified as "persons who expressed and practised their interest in dance and music in Iran", [68]. The extracts from the Authority's reasons set out earlier suggest that this involved a benign understanding of its reasons as it is apparent that the Authority did not ever make an express finding concerning the question of whether the appellant was, or was not, a member of a particular social group.
43 The absence of attention to this issue in the consideration of the appellant's claim which culminated in the decision of the Authority is unfortunate because, as was noted by McHugh and Kirby JJ in S395 at [31], in a case of the present kind, "defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well-founded fear of persecution". Their Honours went on to say:
Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well-founded and is causally related to the particular social group.
(Citation omitted)
44 In our view, that reasoning is equally applicable to the statutory expression of the term "well-founded fear of persecution" in s 5J. Apart from any other consideration, it is not easy to see how the assessment can be made of whether an applicant can take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, if the basis on which it is claimed that there is a well-founded fear of such persecution has not been identified.
45 However, we are willing to consider Ground 1 on the basis referred to in the parties' submissions, namely, that the Authority did conduct the review on the basis that the appellant was a member of a particular social group. If that was so, the Authority must have accepted that each one of the cumulative elements in s 5L was satisfied. That leaves two matters as uncertain.
46 The first is the precise nature and content of the characteristic which was found to satisfy each of those cumulative elements. A characteristic expressed as "an interest in music and dance" seems too general for the purpose of s 5L. So also does an "expression and practice of interest in dance and music", which is, in effect, the finding of the FCC Judge, and which is similar to the description of the Authority itself in [33]. An expression of that kind seem more apt to describe the outward manifestation of a characteristic, rather than the characteristic itself.
47 The second matter of uncertainty concerns which of the three internal alternatives in s 5L(c) the Authority must, on the hypothesis on which we are proceeding, have considered was satisfied. For the reasons given earlier, it could not have been the innateness or immutability of the claimed characteristic (subpara (c)(i)). It is improbable that it was subpara (c)(iii) (the characteristic distinguishing the group from society), not only because there was no discussion at all by the Authority of that element, but also because it is not readily apparent that an interest in music and dance is a characteristic which distinguishes a group from the rest of society. Counsel for the appellant submitted that the Authority must have accepted implicitly that subpara (c)(ii) (a characteristic so fundamental to a member's identity or conscience that the member should not be forced to renounce it) was satisfied. Counsel for the Minister was willing to accept that that was so.
48 Let it be assumed that this was the way in which the Authority reasoned. That gives rise to a further difficulty.
49 It should be accepted that applicants for refugee status may have more than one characteristic which is fundamental to their identity. That means that the expression "[a] characteristic [which] is so fundamental to a members identity … [that] the member should not be forced to renounce it" appearing in s 5L(c)(ii) and the expression "a characteristic that is fundamental to the person's identity" appearing in s 5J(3)(a) need not necessarily encompass the same characteristic. It is at least theoretically possible that the fundamental characteristic with which the modifying action may conflict in a given case may be different from that which satisfies s 5L(c)(ii).
50 However, that theoretic possibility did not arise in the appellant's claim. In the circumstances of his claim (in which an interest in music and dance was relied on for the purposes of both s 5L and s 5J(3)(a)), the two matters necessarily had a close relationship and should have involved the same, or substantially the same, considerations. It is possible that s 5L(c)(ii) connotes a stricter view of the fundamental characteristic than does s 5J(3)(a) but, if that be so, a characteristic satisfying the former would encompass a characteristic satisfying the latter. In the circumstances of the appellant's claims, a decision-maker could not consider the application of s 5J(3)(a) without regard to the decision-maker's findings concerning the application of s 5L(c)(ii). Yet, on the premise that the Authority did proceed on the basis that the appellant was a member of a particular social group because, amongst other things, his interest in music and dance was so fundamental to his identity that he could not be expected to renounce it, that is what the Authority did. Had the Authority considered that the appellant's interest in music and dance was a characteristic fundamental to his identity for the purposes of s 5L(c)(ii), it would not have been necessary for it to say in [33] that it had "considered the submission" that the appellant's expression of his interest in music and dance was a fundamental characteristic of his identity: instead, (on the hypothesis being considered) it would have known that it had already found that that was the case.
51 We are left with the firm impression that, if the Authority did make a finding for the purposes of s 5L(c)(ii), then it must have overlooked that finding when it considered the application of s 5J(3). That is to say, the Authority did not consider that the characteristic to be considered in relation to a possible conflict in the application of s 5J(3)(a) was one which was so fundamental to the appellant's identity that he could not be expected to renounce it.
52 The first matter of uncertainty mentioned earlier also gives rise to a difficulty. Looked at in the abstract, until a decision-maker identifies with some precision the characteristic which is fundamental to the person's identity, it is difficult for the decision-maker to assess whether a postulated modification of behaviour would conflict with it. In the circumstances of this case, until the Authority had made a finding as to the precise nature of the characteristic concerning the appellant's interest in music and dance, it did not have a sound basis on which to make the assessment of whether confining his music and dance activities to private functions undertaken "underground" and with "caution" conflicted with a fundamental characteristic of the appellant's identity. That is to say, it could not assess the significance of the appellant having to carry out his activities underground and with caution.
53 In our opinion, these matters indicate that the Authority did not discharge its statutory task. Because it did not make findings concerning the particular social group to which the appellant could belong which was said to be the basis for his claimed well-founded fear of persecution, it could not assess, as required by s 5J(3), whether the steps it considered the appellant could take to modify his behaviour may avoid a real chance of persecution for that reason. If the Authority did accept that the appellant's interest in music and dance (or both his interest in and expression of music and dance) were a characteristic of his identity which was so fundamental to him that he should not be forced to renounce it, the Authority did not apply that understanding when considering the issue of conflict under s 5J(3)(a).
54 For these reasons, it was not open to the Authority to find that that appellant could avoid a real chance of persecution by the modifying actions to which it referred in [33] of its reasons.
55 It is appropriate also to consider Ground 1 on the basis for which the parties did not contend, namely, that the Authority did not make a finding that the appellant's interest in music and dance was so fundamental to his identity that he could not be expected to renounce it. In our view, this is a more natural understanding of the Authority's reasons. That is especially so given the absence of an express finding by the Authority in circumstances in which it is to be expected that there would have been such a finding had the Authority turned its mind to the issue. Moreover, the Authority did say in [33] that it had considered the issue, but did not make a finding. Instead, the Authority moved immediately to a different question, being the appellant's ability to continue to express his interest in music and dance.
56 On this view of the Authority's reasons, its error lies in its failure to identify the particular social group, this being the step which McHugh and Kirby JJ in S395 said was fundamental to the determination of whether a member of the group has a well-founded fear of persecution. Again, it is not easy to see how the Authority could have decided that the appellant's expression of his interest in music and dance "underground" would not conflict with a characteristic which was fundamental to his identity (as it did in [33]) without having made a finding concerning the existence and nature of that characteristic.
57 This means that Ground 1 should succeed on the basis that it was not open to the Authority to make the finding which it did about the appellant's ability to avoid a real chance of persecution. Our reasons for that conclusion differ a little from those advanced by the appellant, but are encompassed by the Ground and the submissions made by the appellant on the appeal concerning them. It is accordingly unnecessary to consider further the submissions of the appellant on the appeal, summarised in [37] above.