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[2003] FCA 241
respondent. The application for review was dismissed. The applicant was ordered to pay the respondent's costs of the application.
1 cited instrument linked from this judgment.
The applicant challenged the Tribunal's refusal of his protection visa, focusing in Court on his mother's reported threat to kill herself if he did not marry. Branson J explained that Convention persecution requires more than distressing harm by a private person: the relevant state must be unable or unwilling to provide the protection normally expected, in the circumstances described. As no failure by Bangladesh to protect the applicant on a Convention ground was alleged, the mother's threat could not qualify as persecution on this case. The Court dismissed the review application and ordered the applicant to pay the Minister's costs.
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1,969 words · generated 01/10/2026
NAFP sought judicial review in the Federal Court after the Refugee Review Tribunal affirmed the refusal of his protection visa application. The Court's reasons identify the main issue it had to decide as a focused one: whether the applicant's mother's reported threat to commit suicide if he did not marry could constitute persecution of him under the Refugee Convention.
The applicant arrived in Australia on 13 April 2000 using an Indian passport. He applied for a protection visa on 16 May 2000, claiming to be a citizen of Bangladesh. A delegate refused the application on 23 May 2000, and the Tribunal affirmed that refusal on 14 November 2002. Those procedural events are set out at [1].
The applicant told the Tribunal that he feared persecution in Bangladesh because he was homosexual and involved with western music. His account included claims that he had been expelled from the family home, lost work, faced threats from people he lived and worked with, and been pressured by his family to marry. He said that his mother had threatened suicide if he did not marry. These were his claims, not findings that the Court independently made: they are summarised at [2]–[3].
The Tribunal accepted that the applicant was a citizen of Bangladesh and was prepared to accept that he was homosexual. It did not accept many of his other claims, citing inconsistencies in his evidence. It also found that the country information did not show a real chance of harm from Islamic fundamentalists because of western music or homosexuality. The Tribunal did not accept his account of why his employment ended and did not treat family disapproval, the reported suicide threat, or being asked to leave accommodation as persecution. Its findings are summarised at [4]–[8].
The applicant's amended review grounds alleged jurisdictional and legal errors, including that the Tribunal failed to consider whether his mother's threat could amount to persecution. His written submissions focused on that issue, and in oral submissions he referred to the mental pressure the threat placed on him. Branson J recorded that he had had no contact with his mother during his nearly three years in Australia [9]–[10].
The Court dismissed the review application and ordered NAFP to pay the Minister's costs. The reasons do not re-decide the Tribunal's factual assessment of the applicant's wider claims. They address the legal character of the mother's threat as Convention persecution.
Branson J began with the legal meaning of persecution in Article 1A(2) of the Refugee Convention, which she said was effectively incorporated into the Migration Act through s 36. She referred to her earlier discussion in Hellman v Minister for Immigration & Multicultural Affairs and to the Convention's protective purpose: international refugee protection is relevant where adequate national protection of fundamental rights is not forthcoming [11].
The essential distinction in the reasons is between harm and persecution. Harm may be serious or distressing, but the reasons do not treat all such harm as persecution under the Convention. The state-protection dimension matters. Drawing on authorities including Applicant A and Minister for Immigration & Multicultural Affairs v Khawar, Branson J explained that persecution by a non-state actor requires a failure by the state to make protection available against the ill-treatment or violence alleged [11]–[12].
The Court applied that framework to the threat by the applicant's mother. It treated her as a non-state actor. Branson J reasoned that neither the threat nor the possibility that the mother might carry it out involved persecution by Bangladesh or its agents. The applicant did not allege that Bangladesh would fail, because of a Convention ground, to protect him from the threat or from his mother's possible suicide [13].
That absence of an alleged state-protection failure was decisive. The Court was not asked to decide whether the mother's threat was genuine, whether it caused the applicant distress, or whether the mother would carry it out. The reasons acknowledge the potential harm but conclude that it did not meet the Convention meaning of persecution in the circumstances raised. The Court accordingly said it was not open to the Tribunal to find that the threat could amount to persecution under the Migration Act [13]–[14].
The reasons are therefore narrow. They do not hold that family pressure or suicide threats can never be relevant to a protection claim. They hold that, on the pleaded issue and the stated absence of any claim that Bangladesh would deny the applicant protection on a Convention ground, the particular threat could not qualify as Convention persecution.
The judgment presents the legal framework as an existing one, not as a newly enacted rule. Before applying it, Branson J referred to earlier Australian authorities and to the interpretation of the Convention in other decisions. The reasons describe Convention persecution as discriminatory harm connected to the inability or unwillingness of the country of nationality to provide the protection normally expected of a state concerned with citizens' human rights [11]–[12].
For claims involving non-state actors, the framework in the reasons requires attention to state protection. The alleged private conduct alone does not establish Convention persecution: the state’s failure to provide protection supplies the connection between private harm and the Convention's protective scheme. Branson J quoted the passage in Khawar that described this failure as an essential element in non-state-agent cases [12].
After setting out that framework, the Court applied it to the applicant's case. The alleged source of the threat was his mother, and no relevant failure by Bangladesh to protect him was alleged. Consequently, the Court held that the threat could not amount to persecution within the meaning of the Convention on the case before it [13]–[14].
The judgment does not state that it changed the law, nor does it set out a statutory amendment or later doctrinal development. It uses the authorities cited in the reasons to explain the existing relationship between persecution and state protection, then resolves the particular review ground. Any account of changes to the law after this decision would require sources beyond the judgment provided here.
At [11], Branson J said that persecution involves discriminatory harm which the country of nationality is “not willing or not able to prevent” to the level normally expected of a state concerned with its citizens' human rights.
In plain English, the reasons distinguish between harm and Convention persecution. A person may experience harm, but the Convention analysis also asks whether the home country can and will provide the relevant protection. That is why the applicant's mother's conduct could not be considered in isolation from the role of Bangladesh.
At [12], the reasons explain the position where the alleged persecutor is a non-state actor. The state’s failure to provide protection is described as “an essential element”. The passage, quoted from Khawar, frames state protection as the link between private conduct and the Convention's system of protection.
In plain English, where the alleged source of harm is a private person rather than the state, the inquiry described by the judgment includes whether the state makes protection available. The passage does not, by itself, decide every possible factual question about what protection is effective or adequate; the judgment applies the principle to the particular issue before it.
At [13], Branson J said the harm involved in the mother's threat, or her carrying it out, would not amount to persecution in this case. She explained that the harm involved no persecution by Bangladesh or its agents, and there was no complaint that the state would fail to protect the applicant because of a Convention ground.
In plain English, the Court did not treat the threat's emotional impact as enough to make it Convention persecution. The missing element in the case as advanced was an alleged failure by the state to provide relevant protection.
At [14], the Court stated that it was “not open to the Tribunal” to find the threat could have amounted to persecution under the Migration Act. That conclusion answered the central legal issue and led to dismissal of the application at [15].
The reasoning is most directly relevant to a protection-claim issue where the alleged harm comes from a private person, such as a family member, and the question is whether that conduct can be characterised as Convention persecution. The judgment indicates that a lawyer analysing such a claim would need to examine both the nature of the harm and the state's response or capacity to protect.
The decision's application concerned a mother's reported threat to commit suicide if her son did not marry. The Court considered the threat and the possibility it might be carried out, but emphasised that no claim was made that Bangladesh would fail, for a Convention reason, to protect the applicant [13]. That combination is central to understanding the limits of the decision.
The case does not establish that any threat by a relative is irrelevant to a protection claim. Nor does it decide how a different case should be resolved if the evidence or arguments include an alleged refusal or inability by the state to provide protection. It also does not examine a claim that the state itself was responsible for the threat, because the reasons describe the alleged source as the applicant's mother and identify no state involvement [13].
The judgment's factual setting also included claimed harm relating to homosexuality and western music. The Tribunal's findings on those matters are recorded at [4]–[8], but the Federal Court's central reasoning in these reasons focuses on the mother's threat. The decision should therefore not be read as a full judicial determination of the Tribunal's treatment of every factual allegation.
The supplied judgment contains no discussion of later decisions treating NAFP as followed, distinguished, approved, or otherwise applied. The reasons themselves cite decisions predating the judgment, including Hellman, Applicant A, Islam, Khawar, and Horvath [11]–[12]. They do not provide a subsequent-cases history.
Accordingly, this judgment alone cannot establish how later courts have treated NAFP, whether its reasoning has been qualified, or whether a later court has applied it to different facts. The only supported account here is that Branson J relied on the authorities identified in the reasons to explain the state-protection aspect of persecution and applied that framework to the applicant's particular ground.
The reasons do not determine whether the mother's threat was factually genuine or whether she would have carried it out. They note that the Tribunal had questioned aspects of the applicant's evidence and that the threat had been made some four years earlier, but the Federal Court's legal conclusion did not depend on resolving those factual matters [7]–[8].
The judgment also does not decide what would follow if a claimant alleged and established that the country of nationality was unwilling or unable to protect them from a family member's conduct. Its stated conclusion rests on the absence of a complaint that Bangladesh would fail to provide protection to the applicant for a Convention reason [13].
Nor do the reasons address the full legal or factual assessment of the applicant's other allegations. Those included claimed discrimination and harm related to homosexuality and western music. The Tribunal's findings are summarised, but the Court's reasoning on the mother's threat does not independently reassess them [4]–[8].
Finally, the supplied material does not establish any later judicial treatment of this decision. Questions about subsequent authorities, current statutory wording, or how another factual scenario would be analysed cannot be answered from this judgment alone.
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REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 13 April 2000 having travelled on an Indian passport. He lodged an application for a protection visa on 16 May 2000 claiming to be a citizen of Bangladesh. A delegate of the respondent refused this application on 23 May 2000. The applicant applied for review of this decision by the Refugee Review Tribunal ('the Tribunal') on 2 June 2000. On 14 November 2002 the Tribunal handed down its decision affirming the decision not to grant the protection visa. 2 The applicant gave evidence before the Tribunal on 19 July 2002. He claimed to fear persecution in Bangladesh by fundamentalist Muslims including fundamentalist members of his own family. He claimed that they would persecute him on two grounds. The first is that he is homosexual and the second that he is involved with western music. The applicant alleges that he was expelled from his family home in 1996 after being discovered having sexual relations with a male servant. He said that he moved to Dhaka in 1998 and worked in a recording studio for two years. There he became involved in a sexual relationship with another homosexual man. He said that people discovered this relationship and he was threatened by his room mates and work mates and eventually lost his job as a result of his homosexuality. He was forced to move from where he was living and moved in with his homosexual partner with whom he lived for two and a half months. 3 The applicant claimed that his family holds fundamentalist Islamic beliefs and hate him because of his homosexuality and love of western music. He said that they have placed significant pressure on him to marry and that his mother has threatened to commit suicide if he does not get married. He said that if he returns to Bangladesh he will be forced to follow Islamic religious customs and to get married. 4 The Tribunal apparently accepted that the applicant is a citizen of Bangladesh. It was prepared to accept that the applicant is homosexual. However, it did not accept many of the applicant's other claims. The Tribunal was not satisfied that the applicant was a reliable witness and said that his evidence contained a number of inconsistencies which were not convincingly explained. 5 In relation to his involvement to western music, the Tribunal stated that although the applicant worked in a recording studio for two years there was nothing to indicate that he experienced any harm from anyone as a result. The Tribunal was not satisfied that the applicant was at risk of harm by Islamic fundamentalists due to his involvement with western music. 6 In relation to his homosexuality, the Tribunal considered the independent country information. It found that that information indicated that while homosexuality is illegal in Bangladesh these laws are not enforced. The Tribunal noted that the applicant had lived in a homosexual relationship for two and half months without experiencing harm or discrimination. The Tribunal did not accept the applicant's account of the termination of his employment. 7 The Tribunal accepted that it may have been upsetting for the applicant to be asked to leave his accommodation by his room mates but did not accept that this amounted to persecution. Similarly, the Tribunal accepted that family disapproval and the threat of suicide made by the applicant's mother would have been upsetting but it also found that these did not amount to persecution. It is not entirely clear whether the Tribunal considered that there was a real chance that the applicant's mother would kill herself if the applicant returned to Bangladesh and persisted in his refusal to marry. The Tribunal noted that the suicide threat was made some four years ago. 8 The Tribunal found that there was no reliable evidence from the applicant that he had ever experienced any serious harm because of his sexuality. It did not accept that there was a real chance that his family or any one else would harm the applicant. The Tribunal was not satisfied that the applicant had a well-founded fear of harm for a Convention reason. For this reason it found that the applicant did not satisfy the criteria for a protection visa. 9 By his amended application to the Court for an order of review the applicant made the following claims: '1. The Refugee Review Tribunal failed to exercise its jurisdiction. … 2. The decision involved an error of law. … 3. The decision was not authorized by the Migration Act 1958. ….'
As to each of these three grounds the particulars given by the amended application raised the issue that the Tribunal failed to consider whether, if the applicant's mother were to carry out her threat to commit suicide, this could constitute persecution within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Convention').
10 Written submissions were prepared on the applicant's behalf by a legal adviser. The applicant indicated to the Court that he placed reliance on those submissions. They deal only with the issue of the applicant's mother's threat of suicide. In his oral submissions to the Court the applicant referred to the mental pressure which his mother's threat placed on him. The pressure which, as I understand him, does not impact on him in Sydney as he has had no contact with his mother during his nearly three years in Australia. 11 The submissions made on the applicant's behalf call for consideration to be given to the meaning of the term 'persecution' in Article 1A(2) of the Convention. Article 1A(2) of the Convention is effectively incorporated into the Migration Act 1958 (Cth) ('the Migration Act') by s 36 of that Act. In Hellman v Minister for Immigration & Multicultural Affairs [2000] FCA 645; 175 ALR 149 at [18]-[21] I said: 'The object and purpose of international refugee law, which presently has the Convention at its heart, has been described by Professor Hathaway in The Law of Refugee Status, at p 124 as follows: "… refugee law is designed to interpose the protection of the international community only in situations where there is no reasonable expectation that adequate national protection of core human rights will be forthcoming. Refugee law is therefore 'substitute protection' in the sense that it is a response to disenfranchisement from the usual benefits of nationality.' As Guy Goodwin-Gill puts it, '… the degree of protection normally to be expected of the government is either lacking or denied.'" It is in the light of the object and purpose of the Convention, which are fairly summarised in the above paragraph, that the ordinary meaning of the words in Article 1A(2) of the Convention is to be determined. That light suggests that Article 1A(2) is concerned with persecution in the sense discussed by Mr Atle Grahl-Madsen in The Status of Refugees in International Law AW Sijthoff-Leyden, 1966, vol I at p 189: "…. The label 'persecution' may, as a rule, only be attached to acts or circumstances for which the government (or, in appropriate cases, the ruling party) is responsible, that is to say: acts committed by the government (or the party) or organs at its disposal, or behaviour tolerated by the government in such a way as to leave the victims virtually unprotected by the agencies of the State." The above approach to the interpretation of the word "persecuted" in Article 1A(2) of the Convention is supported by Australian jurisprudence. Brennan CJ stated in Applicant A (at CLR 233; ALR 334): "The feared 'persecution' of which Article 1A(2) speaks exhibits certain qualities. The first of these qualities relates to the source of the persecution. A person ordinarily looks to 'the country of his nationality' for protection of his fundamental rights and freedoms but, if 'a well-founded fear of being persecuted' makes a person 'unwilling to avail himself of the protection of [the country of his nationality]', that fear must be a fear of persecution by the country of the putative refugee's nationality or persecution which that country is unable or unwilling to prevent." Although the Chief Justice was in dissent in Applicant A, there is nothing in the majority judgments which suggests disagreement with the above paragraph (see also Islam v Secretary of State for The Home Department [1999] 2 WLR 1015, considered in Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190). It is thus strictly speaking incorrect to speak of a person who has a well-founded fear of being persecuted within the meaning of Article 1A(2) of the Convention nonetheless having available to him or her the protection of the country of his or her nationality. A person who has available to him or her the protection of his or her country of nationality may have a well-founded fear of being harmed in a discriminatory way (see per McHugh J in Applicant A at CLR 258) but that feared harm will not amount to persecution within the meaning of Article 1A(2) of the Convention. Persecution in the Convention sense involves discriminatory harm which the putative refugee's country of nationality is not willing or not able to prevent to the degree that is normally to be expected of a country sensibly concerned with the human rights of its citizens.' 12 In Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14; 187 ALR 574 Gleeson CJ at [18] referred to the passage from the judgment of Brennan CJ in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 233 referred to above with apparent approval. Gleeson CJ at [19] observed: 'The relationship between persecution as the inflicting of serious harm in violation of fundamental rights and freedoms, and the responsibility of a country of nationality, or state, as the primary protector of fundamental rights and freedoms, has been taken up in the interpretation of the Convention. It is reflected in what was said by Lord Hope of Craighead in Horvath v Secretary of State for the Home Department: "I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word 'persecution' implies a failure by the state to make protection available against the ill-treatment or violence which the person suffers at the hands of his persecutors. In a case where the allegation is of persecution by the state or its own agents the problem does not, of course, arise. There is a clear case for surrogate protection by the international community. But in the case of an allegation of persecution by non-state agents the failure of the state to provide the protection is nevertheless an essential element. It provides the bridge between persecution by the state and persecution by non-state agents which is necessary in the interests of the consistency of the whole scheme."' (citations omitted) 13 The harm to the applicant involved in the applicant's mother's threat to commit suicide and, indeed, in her carrying out that threat should she regrettably decide to do so, would not amount to persecution within the meaning of the Convention. That harm involves no element of persecution by the state of Bangladesh or its agents. No complaint has, or perhaps could be, made that the state, by reason of a Convention ground, would not provide protection to the applicant against his mother's threat of suicide or, should it come to that, her actual suicide. 14 For the above reasons it was not open to the Tribunal to find that the applicant's mother's threat of suicide could have amounted to persecution of the applicant within the meaning of the Migration Act. 15 The application for review of the decision of the Tribunal must be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Counsel for the Applicant: The applicant appeared in person
NAFP
Minister for Immigration & Multicultural & Indigenous Affairs
The application for review was dismissed. The applicant was ordered to pay the respondent's costs of the application.