Federal Court (Full Court). Do the expressions in ss 5L(c)(ii) and 5J(3)(a) of the Migration Act 1958 (Cth) necessarily encompass the same "characteristic"? Assuming that IAA accepted that the Appellant's interest for music and dance was "a characteristic that [was] fundamental to [his] identity", was it open to IAA to find that Appellant could avoid a real chance of persecution by carrying out his activities underground and with caution? Could the IAA 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 ... without having made a finding concerning the existence and nature of that characteristic"?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Do the expressions “[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 “a characteristic that is fundamental to the person’s identity” appearing in s 5J(3)(a) of the Migration Act 1958 (Cth) necessarily encompass the same characteristic?
Question 2: Assuming that the Immigration Assessing Authority (IAA) accepted that the Appellant's interest for music and dance was "a characteristic that [was] fundamental to [his] identity", was it open to the IAA to find that the Appellant could avoid a real chance of persecution by carrying out his activities underground and with caution?
Question 3: Could the IAA 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 ... without having made a finding concerning the existence and nature of that characteristic"?
The FCAFC answered those questions as follows: