Federal Court. If a persecution claim is based upon membership of a particular social group, may AAT be required to consider a group definition open on the facts but not expressly advanced by an applicant? If AAT chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so according to law? IAA found Appellant did not satisfy s 36(2)(a) on the basis that, as she had only told a few people she had been rapped, there was not a real chance that she would suffer societal discrimination. Did IAA make a jurisdictional error by not asking Appellant why she would not tell others about her rape? Could stigma or discrimination arising from sexual assault give rise to a protection claim?
The questions to the Federal Court (FCA) were as follows:
Question 1: If a claim of persecution is based upon membership of a particular social group, may the Tribunal be required to consider a group definition open on the facts but not expressly advanced by an applicant?
Question 2: If the Tribunal chooses to exercise its jurisdiction more widely than an applicant or the Minister has asked, must it do so in accordance with law?
Question 3: Did the Immigration Assessment Authority make a jurisdictional error by not asking the Appellant why she would not tell others about her rape?
Question 4: Could stigma or discrimination arising from sexual assault give rise to a protection claim?
The FCA answered those questions as follows: