1711563 (Refugee)

The applicant, a citizen of Fiji, sought review of a decision by the Refugee Tribunal to refuse his application for a protection visa. The Federal Circuit Court had affirmed the Tribunal's decision, finding no jurisdictional error. The applicant then appealed to the Full Federal Court.

The central legal issue before the Full Federal Court was whether the Tribunal had failed to exercise its jurisdiction by failing to adequately consider the applicant's claims of persecution based on his membership in the social group of homosexual men. This included claims of discrimination by employers and assaults, and the court was required to determine if the Tribunal's adverse credibility findings were so flawed as to amount to a failure to exercise jurisdiction.

The Full Federal Court found that the Tribunal had made a jurisdictional error. The court noted significant inconsistencies and contradictions in the applicant's evidence regarding the timing and nature of key events, particularly concerning assaults and his attire during these incidents. The Tribunal had expressed concern that the applicant repeatedly changed his evidence to align with the Tribunal's questions, undermining his credibility. This included shifting the dates of incidents, altering the order in which they occurred, and providing conflicting accounts of his clothing and his reasons for wearing it. The court concluded that while the Tribunal was entitled to make adverse credibility findings, its approach to the applicant's changing evidence, particularly in relation to his fear and subsequent actions, demonstrated a failure to properly engage with and assess the substance of his claims.

The Full Federal Court set aside the decision of the Federal Circuit Court and the decision of the Refugee Tribunal, remitting the matter to the Refugee Tribunal for redetermination according to law.