BWC19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 96
•3 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWC19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 96
File number: MLG 1367 of 2019 Judgment of: JUDGE SYMONS Date of judgment: 3 February 2025 Catchwords: MIGRATION – protection visa – decision of the Administrative Appeals Tribunal – alleged failure to consider material of significance – whether the Tribunal was required to consider statutory declaration made by the applicant’s husband – what inferences to be drawn from the failure of the Tribunal to refer to the statutory declaration in its written statement of reasons – whether findings made by the Tribunal rejecting the applicant’s sexual identity claims were unreasonable – finding that the Tribunal was required to consider the husband’s statutory declaration and failed to do so – error material – writs issued Cases cited: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 91 Date of last submissions: 2 December 2024 Date of hearing: 2 December 2024 Place: Melbourne Counsel for the Applicant: Ms E Levine Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr C McDermott Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 1367 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWC19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs” pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
2.The name of the second respondent be amended to “Administrative Review Tribunal” pursuant to r 7.01 of the Rules.
3.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal made on 15 April 2019.
4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine according to law, the applicant’s application to the Administrative Appeals Tribunal for review of the decision of the delegate of the first respondent dated 22 November 2016.
5.The first respondent pay the applicant’s costs as agreed or in default of agreement, in accordance with the scale set out in the Rules.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
By an application filed on 6 May 2019, and amended on 4 November 2024, the applicant seeks review of a decision of the (then) Administrative Appeals Tribunal (now the Administrative Review Tribunal) (Tribunal) made on 15 April 2019. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (class XA) visa (visa). The Tribunal filed a submitting appearance save as to costs and did not participate in this proceeding. The Minister, by his response filed on 15 May 2019, denied that the Tribunal decision was affected by jurisdictional error. For the reasons which follow, I disagree with this assessment.
BACKGROUND
The applicant is a citizen of Rwanda who arrived in Australia on 26 October 2014 on a Student (Class TU) Visa.
On 5 December 2014, the applicant made a valid application for the visa (CB 1-31). In the application, in response to the question “Why did you leave that country [Rwanda]”? the applicant recorded “Because I have been sexually assaulted, abused, and was fired from my job for being attracted to women” (CB 18). The applicant noted that she would provide a full statement within 6-8 weeks. The application was accompanied by identification documents and a copy of a letter from X Company to the applicant that stated the applicant’s contract would not be renewed from 1 July 2013 (CB 29).
By letter dated 20 March 2015, the Refugee and Immigration Legal Centre advised the (then) Department of Immigration and Border Protection (Department) that it would be representing the applicant.
On 16 June 2015, the applicant’s representative provided the Department with a statutory declaration made by the applicant on the same date in support of her protection claims (first statutory declaration) (CB 49-55). The information contained in the first statutory declaration included:
·The applicant is a citizen of Rwanda, who was born in the Democratic Republic of Congo (DRC) and chooses not to identify as a specific ethnic group.
·The applicant fears harm in Rwanda due to being a lesbian and her status as a young single woman, and the Rwandan authorities will not protect her.
·The applicant has suffered serious harm through violent attacks and rape by members of her family and local community.
·The applicant had a difficult childhood including because her father was violent towards her mother, the applicant’s siblings and the applicant. The family lived in the DRC due to the applicant’s father’s work. The applicant was unable to attend school on a constant basis due to conflict in the DRC.
·In or around 1998, following the death of her father, the applicant returned to live in Rwanda with her mother and siblings.
·During high school, the applicant only had female friends, and did not want to be associated with men at all, citing her father’s behaviour towards her family as a contributing factor.
·While at boarding school, the applicant formed a romantic relationship with another female student, Y. This relationship continued after the completion of high school in January 2023 and the couple kept their relationship a secret.
·In either 2004 or 2005, the applicant’s family questioned her as to why she was not married. After the applicant stated she would never get married, her family threw her belongings out of the house and told her she could no longer stay with them.
·The applicant’s mother told her siblings that the applicant was “bewitched”, which resulted in them ceasing to visit the applicant.
·In or around 2009, the applicant’s neighbour, JP, showed interest in the applicant and asked her out numerous times. The applicant informed JP that she was not interested in men. After this, JP attended the applicant’s house raped her and told her that she should not go to the police because he would tell them she was a lesbian and that she would be arrested. JP continued to pursue and harass the applicant while she was in Rwanda.
·In around June 2010, the applicant began training with X Organisation and in April 2011, she secured a position as Field Manager for the X Authority.
·In or around 2013, the applicant’s supervisor D at the X Authority asked the applicant if she was interested in marriage. The applicant informed him that she was not. The applicant’s colleagues told D that she was not interested in men at all. After this, D wrote a letter to the applicant, informing her he did not want her working for the company, and accused her of stealing. Following an investigation the applicant retained her position.
·In 2014, JP continued to pursue and harass the applicant. The applicant began searching on the internet for a place that she could be free. These inquiries led the applicant to apply for and obtain a scholarship to study in Australia.
·The applicant arrived in Australia on 26 October 2014 and completed the course she was enrolled in.
·The applicant decided to apply for protection in Australia because she knew she would never be able to live safely in Rwanda. The Rwandan authorities would not protect the applicant from the harm that she feared because they are also anti-gay and lesbian.
·The applicant fears harm including sexual assault, torture and death at the hands of the anti-gay Rwandan community.
On 14 July 2016, the Department invited the applicant to attend an interview on 11 August 2016, which she did (CB 57-60).
On 5 September 2016, the applicant’s representative sent the Department written submissions that were responsive to issues raised at the interview (CB 68-72) and a statutory declaration of the applicant made on 2 September 2016 (CB 73-78) (second statutory declaration). The submissions raised problems with the interpreter used during the interview, addressed concerns about the applicant’s credibility and spoke to new information provided by the applicant at interview that was also the subject of the second statutory declaration. Broadly speaking, the second statutory declaration was organised to deal with the topics of interpreter problems, the applicant’s relationship in Australia with a man named P with whom she had a child, a previous incident of rape in the DRC and in Rwanda in 2014 and the applicant’s relationship with Y.
On 22 November 2016, a delegate of the Minister made a decision to refuse the applicant the visa (CB 80-102).
On 9 December 2016, the applicant made an application to the Tribunal for review of the delegate’s decision (CB 103-104).
On 1 June 2017, the applicant appointed Refugee Legal as her representative and authorised recipient.
On 9 July 2018, the Tribunal invited the applicant to attend a hearing on 12 September 2018 (CB 115-122).
On 11 September 2018, the applicant’s representative sent an email in response to the hearing invitation, attaching a statement of the applicant dated 11 September 2018 (CB 127-130), various medical information, a certificate of marriage which recorded the marriage of the applicant to P (the husband) on 11 February 2017, and the birth certificates of the applicant’s two children born in Australia to the applicant and the husband in 2016 and 2018 (CB 123-135).
On 12 September 2018, the applicant attended a hearing at the Tribunal with her representative. The applicant had assistance from an interpreter in the Swahili and English languages (CB 136-138).
On 10 October 2018, Refugee Legal provided the Tribunal with a post-hearing written submission, accompanied by various items of medical information and two pieces of Rwandan Country Information (CB 142-170).
On 15 October 2018, Refugee Legal sent the Tribunal a letter from the applicant’s general practitioner dated 14 October 2018 (CB 188-189).
On 18 October 2018, Refugee Legal sent the Tribunal a letter from the applicant’s psychologist dated 17 October 2018 (CB 190-191).
On 22 January 2019, Refugee Legal sent the Tribunal a statutory declaration of the husband dated 22 January 2019 (husband’s statutory declaration) (CB 194-196) and an item of Rwandan Country Information.
On 15 April 2019, the Tribunal affirmed the delegate’s decision to refuse the applicant the visa and produced a statement of decision and reasons (R) (CB 208-221).
THE DECISION OF THE TRIBUNAL
The Tribunal identified the relevant law, by reference to the refugee criterion and then the complementary protection criterion and noted its obligations under Ministerial Direction No. 56 (R [5]-[19]).
The Tribunal identified the applicant’s claims for protection by adopting the summary contained in the decision of the delegate (R [23]).
The Tribunal recorded various legal principles related to the assessment of credibility (R [25]-[29]) before turning to an assessment of the applicant’s various claims.
The Tribunal accepted that the applicant had been receiving treatment for her mental health and that she had the mental health concerns that were identified in the documentation provided. The Tribunal noted that it had remained alert during the hearing for any evidence that the applicant was unable to present evidence and arguments but was satisfied that the applicant was able to do so (R [30]-[31]).
The Tribunal found that country information before it indicated that the Rwandan government had been prioritising mental health in recent years including by the integration of mental health care services into the national health system (R [32]). The Tribunal found that there was nothing to suggest the applicant would not have the support of her family members upon return to Rwanda and that there was nothing before the Tribunal to indicate that she would be denied access to mental health services and medication upon her return to Rwanda (R [33]).
The Tribunal found that the applicant was not a lesbian or bisexual and did not have a real chance of serious harm or a real risk of significant harm upon return to Rwanda. The reasoning that informed this conclusion is the subject of the applicant’s judicial review challenge but can be summarised as reflecting:
(a)The applicant’s evidence about her relationship with Y, including her responses to questions asked at the Tribunal hearing. The Tribunal was dissatisfied with this evidence and found that the applicant was not in a long-term same sex relationship with Y, although she may have experimented with her sexuality with Y (R [34]-[39]);
(b)The failure of the applicant to engage in a lesbian relationship or seek out the lesbian community since being in Australia and her transition to a committed heterosexual relationship instead (R [40]-[43]).
The Tribunal accepted that the applicant had been raped as a young girl by a soldier but did not accept her claim to have been raped twice by her neighbour JP. The Tribunal identified what it described as inconsistencies in the applicant’s account. The Tribunal did not accept that the applicant faced a real chance of persecution from JP (R [44]-[53]).
The Tribunal considered the applicant’s claim relating to her ex-supervisor at the X Authority but found that any mistreatment was not related to the applicant being a lesbian and had not ultimately resulted in any detriment to the applicant, given that she had been reinstated to her position (R [54]-[56]).
The Tribunal considered whether the applicant was a member of a particular social group, described as: “Member of the LGBTI community in Rwanda and/or lesbians/perceived lesbians in Rwanda/or bisexuals in Rwanda/Rwandans with mental health disorders/mental ill-health, members of the LGBTI community with mental ill health and/or women in Rwanda”. The Tribunal found that given the applicant was now married with two children she would not be a member of the LGBTI community in Rwanda or a lesbian or a perceived lesbian or bisexual person upon return (R [58]). Likewise, given the Tribunal’s earlier findings about the provision of mental health services, the Tribunal found that the applicant would not be targeted because she had mental ill health (R [59]).
The Tribunal concluded that it did not accept there to be a real chance of the applicant being persecuted now or in the reasonably foreseeable future on return to Rwanda for any Convention related reasons. The Tribunal found that the applicant did not have a well-founded fear of persecution and did not accept that there were grounds for believing that there was a real risk that the applicant would suffer significant harm for being a lesbian, a perceived lesbian or imputed lesbian from the authorities, her family or JP on her return (R [67]-[68]).
JUDICIAL REVIEW
The hearing of the applicant’s application for judicial review took place on 2 December 2024 on which occasion the applicant was represented by Ms Levine of counsel and the Minister by Mr McDermott of counsel. Both counsel made submissions that were delivered with commendable efficiency and clarity.
The applicant relied on her written submissions filed on 4 November 2024, as well as affidavits of lawyer Andrea Main filed on 6 and 29 November 2024 which annexed a copy of the Department of Home Affairs “Gender and Sexual Orientation Procedural Instruction” in effect at the date of the Tribunal decision (Instruction) and a partial transcript of the applicant’s hearing before the Tribunal on 12 September 2019 (T), respectively.
The Minister relied on his written submissions filed on 18 November 2024.
GROUND ONE
Ground one reads:
1. The Tribunal committed a jurisdictional error by failing to have regard to a relevant consideration, being evidence from her husband which corroborated the applicant’s claims concerning her sexual identity.
Particulars
a. The applicant claimed that she was at risk of serious harm in Rwanda by reason of, among other things, her identity as a bisexual woman, and claimed to have previously identified as a lesbian woman.
b. In support of her claim as to sexual identity, the applicant submitted a statutory declaration from her husband, P##: CB 194-195.
c. The statutory declaration included statements that:
i.“At some point [the Applicant] told me that she was lesbian – that she liked women and for this reason she did not want to have a proper relationship with me” (at [3]).
ii.“I told [the Applicant] that I fell in love with her the first time I saw her and did not cope well with [the Applicant] saying she was a lesbian. I told [the Applicant] that I thought a person could love men and women – so to be a bisexual, but to be honest, I still could not accept in my mind that [the Applicant] could be attracted to women. Gradually [the Applicant] believed that I accepted her as she was, and she told me that she also loved me” (at [4]).
d. The statutory declaration constituted significant corroborative evidence in support of the Applicant’s claimed sexual identity.
e. The Tribunal was required to take into account this corroborative evidence as a relevant consideration.
f. The Tribunal did not refer to the corroborative content of the statutory declaration from the Applicant’s husband in the Decision.
g. It is to be inferred that the Tribunal did not take the content of the statutory declaration into account.
Applicant’s submissions
The applicant’s counsel, Ms Levine, submitted that for the applicant to enjoy success on ground one, she would need to establish first, that the husband’s statutory declaration was corroborative evidence that the Tribunal was required to take into account and second, that the husband’s statutory declaration was not in fact taken into account by the Tribunal.
As far as the first proposition was concerned, the applicant relied on the often-cited decision of Robertson J in Minister for Immigration and Citizenship v SZRKT(2013) 212 FCR 99 at [111]-[112] which passages although well known, bear repeating (internal citations omitted):
111. In my opinion there is no clear distinction in each case between claims and evidence…The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion, the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
112. …whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
The applicant characterised the husband’s statutory declaration as significant and cogent because it was made in support of the applicant and represented the husband’s account of what must have been intimate conversations between himself and the applicant concerning the applicant’s sexuality and the manner in which the applicant’s sexuality had impacted on the couple’s relationship through its various stages.
The husband’s statutory declaration was important, contextually, because the applicant’s claims concerning her sexuality had evolved over time so that when the Tribunal came to make its decision, the applicant’s claim was best understood as based on her fear of being a bisexual woman who had previously identified as a lesbian. The applicant accepted that while the husband could not provide any direct evidence about the applicant’s lesbian relationships in Rwanda, he could give an account of how, in the context of their relationship, the applicant had experienced and identified her sexuality.
The husband’s statutory declaration was significant having regard to the way in which the Tribunal reasoned, a central component of which was to reject the applicant’s claim based on credibility and, it might be inferred, lack of corroboration. It was also significant because a key reason for rejecting the applicant’s claim was that she was, at the time, in a heterosexual relationship with a man and had had children with him. The husband’s statutory declaration corroborated the applicant’s claim to be bisexual and did so in cogent fashion.
As far as the second proposition was concerned, the applicant submitted that it was an inescapable conclusion that the husband’s statutory declaration had not been considered by the Tribunal because there was no mention of it in the Tribunal’s decision record. This was in contrast to the treatment of the two statutory declarations made by the applicant, both of which had been specifically identified and aspects of their content referenced.
The applicant submitted that if the Court was to accept that the husband’s statutory declaration was required to be taken into account, then the Minister’s argument that it could be inferred that it was considered but not mentioned because of its lack of importance, could not be sustained.
The applicant submitted that the failure of the Tribunal to consider the husband’s statutory declaration was undoubtedly material on an application of the test articulated in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [14] and in circumstances where the husband’s statutory declaration was capable of affecting the Tribunal’s assessment of credibility, which assessment did not proceed in linear fashion (referring to BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [101]-[102]).
Minister’s submissions
The Minister’s submissions contained an acknowledgement that the Tribunal had made no specific reference to the husband’s statutory declaration or its specific content. However, the Minister submitted that the proper inference to be drawn from this omission was that the Tribunal did not consider the evidence to be material to the dispositive issues on the review, rather than it being an indication that the Tribunal had acted in ignorance of the material.
To support this characterisation of the husband’s statutory declaration, the Minister submitted that it (the declaration) had no probative value in the Tribunal’s evaluation of the applicant’s claimed long-standing relationship with a woman in Rwanda, which the Minister described as a “very significant underpinning” to the Tribunal’s rejection of the applicant’s claimed sexual orientation(s) overall. When the husband’s specific evidence was seen in the context of this reasoning, it had little to no “importance…to the exercise of the Tribunal’s function” (referring to SZRKT at [111]).
The Minister submitted that the husband’s evidence of the applicant and himself being in a “committed marriage” buttressed the Tribunal’s record of the applicant’s evidence of her being in a genuine and exclusive marital relationship with the husband (referring to R, [40] and [63]). As far as its capacity to inform findings about the applicant’s sexuality or sexual orientation, it went no higher than that the applicant had informed the husband that she identified as bisexual.
GROUND ONE: RESOLUTION
In order to place the submissions of both parties in their proper context it is first necessary to reproduce parts of the husband’s statutory declaration that are directed to the applicant’s sexuality and those parts of the Tribunal’s written statement that involve a rejection of the applicant’s claim to apprehend harm in Rwanda based on her sexual identity.
Starting with the husband’s statutory declaration, it states (relevantly):
1. I make this statutory declaration in support of the review by the Administrative Appeals Tribunal of the refusal of the protection visa application of my wife [the applicant]. I would like this information to be considered by the Tribunal.
2. …
3. [The applicant] has already explained that we met at an African event in the city of Melbourne in 2015. I moved into her apartment as a friend. We had sexual relations. I wanted to have a relationship with [the applicant]. [The applicant] did not want this. At some point [the applicant] told me that she was a lesbian – that she liked women and for this reason she did not want to have a proper relationship with me. I was very upset because I felt that I loved [the applicant]. It was very difficult. I remained in the apartment to help and support [the applicant] after she became pregnant and after our son J was born on 4 June 2016. J was unwell and required hospital treatment. I moved out of the hospital for a while but kept returning to support [the applicant] and J.
4. It was like moving a mountain to get [the applicant] to agree to marry me. [The applicant] very much appreciated the help and support I gave her with J. We started talking about many issues including her sexuality. I told [the applicant] that I thought a person could love men and women – so to be a bisexual, but to be honest, I still could not accept in my mind that [the applicant] could be attracted to women. Gradually [the applicant] believed that I accepted her as she was, and she told me that she also loved me. She agreed to marry me and we married on 11 February 2017. Our daughter J was born on 15 July 2018. We are now in a committed marriage.
5. …
6. It is not safe for [the applicant] to return to Rwanda. I understand that people in Rwanda including her family know her as a lesbian and that she is at risk of harm there for this reason. I am worried that she will not be safe – that she will be harassed, and discriminated against and that she is at risk of being physically attacked in Rwanda as a lesbian woman. I understand that lesbian women are at risk of being raped.
…
The Tribunal addressed, under the heading “Lesbian relationship” the applicant’s claim to fear relevant harm as a lesbian or bisexual person at R [34]-[43]. Given that these reasons are also relevant to the applicant’s second ground of review, I have chosen to reproduce them in full:
34. The applicant spoke of her relationship with her former girlfriend Y. She said they started their relationship in high school and that they were together for twelve years from 2002-2014. The Tribunal asked what types of things they did together and the applicant said they shared love; they enjoyed everything together, went to clubs and just did normal things. They were together but never physically lived together.
35. The Tribunal asked the applicant how Y felt about her coming to Australia and she said she didn’t care. They had not planned anything for their future. The Tribunal queried how they had been in a relationship for twelve years but did not plan anything for the future and that Y did not care that she was coming to Australia. The applicant responded that she was coming to do a course and if there was a change she would let her know. The Tribunal asked the applicant if she had planned to go back. The applicant responded that she knew there was freedom in Australia for lesbians and gays and if she found it she would let Y know. There is no freedom in Rwanda.
36. The Tribunal asked her when she last spoke to Y and she said she never spoke to her again once she arrived in Australia. The applicant said it was because when she got here she went into a depression, she had depression before but it was much worse than before. She also said that maybe Y couldn’t get a hold of her due to security. However, she never spoke with her again.
37. The Tribunal is not satisfied that the applicant ever was in a long term same sex relationship with Y. The applicant said she was in a relationship with Y for twelve years yet when she arrived in Australia she never spoke with her again. When asked how Y felt about her coming to Australia she said she didn’t care. The Tribunal finds it implausible that the applicant’s claims around being a lesbian in Rwanda centre on her relationship with Y yet she simply arrives in Australia never to speak to Y again.
38. The applicant did not have any documentary evidence of her relationship with Y. There were no photos provided or any evidence that Y existed let alone that she spent twelve years of her life with her. Further, the applicant said she was depressed when she arrived in Australia and that it was worse than the depression she had before. However, she did not reach out to Y; she did not try to contact her in anyway. The Tribunal would consider that after twelve years in a committed relationship Y would be the person the applicant reached out too (sic).
39. When asked what the couple did together the applicant only answered that they did loving things and went to clubs. She did not elaborate on their daily life or what they did as a couple, any trouble they may have had as a couple or any other matter. The applicant did not live with her partner at any time during the course of their claimed twelve year relationship. The Tribunal considers that the applicant may have experimented with her sexuality with Y but does not consider that she was ever in a twelve year lesbian relationship with her.
40. Further, since being in Australia the applicant has not engaged in any relationship as a lesbian, she did not seek out the lesbian community, she did not have any dealings with the LGTBI community instead she has been in an exclusive married relationship with a man and has two children from this relationship.
41. The applicant claims that she originally only had sex with a man so she could have a child. There are cases where lesbians do have children simply because they want a child, not for any other reason. However, in this case the applicant not only had a child but went onto marry the father of her baby and also have a second child with him. In considering the evidence before it, the Tribunal does not accept that the applicant was or is a lesbian.
42. The Tribunal has then gone onto consider if the applicant is bisexual. Given the lack of credible evidence and the abrupt ending to the applicant’s claimed relationship with Y and given that the Tribunal does not accept that the applicant was ever in a lesbian relationship the Tribunal is not satisfied that the applicant is bisexual. Further, since arriving in Australia the applicant has not engaged in any lesbian or bisexual relationships or engaged the LGBTI community in any way instead she has moved into a committed heterosexual relationship.
43. Therefore, the Tribunal concludes from the evidence before it that the applicant is not a lesbian or bisexual and in her circumstances does not have a real chance of serious harm or a real risk of significant harm upon return to Rwanda.
I am persuaded that the applicant has established error in the approach taken by the Tribunal to the husband’s statutory declaration.
This conclusion reflects my satisfaction that the husband’s statutory declaration was significant in the context of the claims advanced by the applicant and the scheme of the Tribunal’s reasoning, such that the Tribunal was required to take the husband’s statutory declaration into account in its assessment of the applicant’s claims. It reflects my further satisfaction that the Tribunal did not take the husband’s statutory declaration into consideration when it came to make its decision.
The husband’s statutory declaration was significant to the claims articulated by the applicant because these claims were not static in nature and involved the narrative that her sexual identity had evolved from identifying in Rwanda as a lesbian to identifying as a bisexual person in Australia, in the context of being in a committed relationship with a man.
The husband’s statutory declaration did more than just corroborate information disclosed by the applicant about her sexual identity. It provided an independent appraisal of how the applicant had grappled with her sexual identity and orientation over the years, culminating in how it came to be expressed over the course of the parties’ relationship. It was cogent because it was made by a person who was well placed to make observations about the applicant and who could speak with authority on the topic of how the applicant had been ultimately persuaded to commit to a heterosexual relationship, notwithstanding her stated attraction to women. While of course the Tribunal was not required to accept uncritically the matters identified in the husband’s statutory declaration or to find that they explained and/or supported the applicant’s claims about her sexual identity and how these had evolved over time, it was, in my opinion, obliged to consider the information that it communicated as part of its overall evaluation of the applicant’s claims.
This is in large measure because, as the passages reproduced at [46] disclose, the Tribunal rejected the applicant’s claim to fear harm based on her sexual identity and/or orientation in part because she had transitioned into “a committed heterosexual relationship” (R [42]). The husband’s evidence directed at the genesis and evolution of that relationship, and the issues that both he and the applicant grappled with along the way, was capable of casting the benign narrative reflected in the Tribunal’s decision in a different light. The fact that the husband’s statutory declaration was provided to the Tribunal after the hearing did not diminish its quality. Indeed, the fact that it was provided after the hearing suggests that the applicant (and those who represented her) considered it to contain information that was important to the applicant’s claim and addressed an evidentiary lacuna.
The husband’s statutory declaration is not referred to in the Tribunal’s written statement of reasons, even indirectly. Given that it was significant evidence on the topic of the applicant’s sexual identity in Australia I am not persuaded that there is a proper basis to infer that the Tribunal did not refer to the husband’s statutory declaration because it was considered immaterial.
I am satisfied, on an application of the “undemanding” standard of “reasonable conjecture”[1] that there is a realistic possibility that had the Tribunal’s brought the husband’s statutory declaration to account in its consideration of the applicant’s central claim to apprehend relevant harm based on her sexual identity/orientation, that it might have reached a different conclusion about the outcome of this claim and the disposition of the review application.
[1] Nathanson v Minister for Home Affairs (2022) 276 CLR 80 at [32]-[33].
Ground one succeeds.
GROUND TWO
Ground two reads:
2. The Tribunal engaged in a legally unreasonable process of reasoning with respect to the applicant’s claim to be a bisexual woman who feared harm in Rwanda on that basis.
Particulars
a. The Tribunal’s process of reasoning lacked an evident or intelligible justification, including in respect of:
i.the Tribunal’s rejection of the applicant’s claim to have been in a relationship with a woman in Rwanda;
ii.the Tribunal’s focus on the applicant being married to a man and having had children with him.
b. The Tribunal’s evaluation of the applicant’s claim based on sexual identity departed in significant respects from the approach set out in the departmental Gender and Sexual Orientation Procedural Instruction in place at the time of the decision.
Applicant’s submissions
The applicant submitted that the Tribunal’s rejection of her claim to have been in a lesbian relationship with a woman, Y, lacked an evident and intelligible justification and failed to properly and faithfully reflect the evidence and explanations provided by the applicant about the relationship and the cessation of contact with Y.
The applicant identified several examples.
First, the applicant invited the Court to compare what the Tribunal had recorded at R [35] with the applicant’s evidence given at hearing.
As to R [35] it states (relevantly and with the applicant’s emphasis):
The Tribunal asked the applicant how Y felt about her coming to Australia and she said she didn’t care. They had not planned anything for their future. The Tribunal queried how they had been in a relationship for twelve years but did not plan anything for the future and that Y did not care that she was coming to Australia…
As to the applicant’s evidence given at hearing, the applicant took the Court to parts of the transcript which recorded the applicant’s evidence about her relationship with Y. This included the following exchanges:[2]
[2] T13, lines 3-10, 23-27.
MEMBER: How did Y feel about you wanting to come to Australia?
INTERPRETER: She didn’t see anything wrong.
MEMBER:She wasn’t upset that you were going to come here and leave her in Rwanda?
INTERPRETER: No.
…
MEMBER:Yes. Okay. Okay. When you left, you say Y didn’t care that you were coming to Australia, but did you make plans to go back to Rwanda? I don’t understand how she didn’t care if you were coming here if you were in a relationship.
The applicant submitted that the Tribunal had misapprehended the applicant’s evidence. The applicant had said that Y was not upset when she left, rather than that she did not care.
The second example identified by the applicant involved a comparison between what the Tribunal had recorded at R [38] and the applicant’s evidence contained in her statutory declarations and written statement and her evidence to the Tribunal.
As to R [38] it states (with the applicant’s emphasis):
The applicant did not have any documentary evidence of her relationship with Y. There were no photos provided or any evidence that Y existed let alone that she spent twelve years of her life with her. Further, the applicant said she was depressed when she arrived in Australia and that it was worse than the depression she had before. However, she did not reach out to Y; she did not try to contact her in anyway. The Tribunal would consider that after twelve years in a committed relationship Y would be the person the applicant reached out too (sic).
The applicant gave evidence about her contact with Y as follows:
In her first statutory declaration at [36] (CB 54) she said:
After I travelled to Australia, Y and I lost contact. I have been told by my friends in Rwanda that she has left the country.
In the second statutory declaration at [36]-[37] (CB 77) she said:
The relationship with Y continued until I came to Australia. We lost contact and I was told by a friend that she has left Rwanda.
I was very sad when I could not contact Y. I tried searching for her on social media but she was not there. I asked my friends if they know where she gone and how to contact her. None of my friends have been able to contact her. She was closer to me than anyone.
In her statement at [13] (CB 128) she said (relevantly):
…After I came to Australia I could not reach Y by telephone. This also made me very depressed. It was not possible to get evidence of my relationship with Y after I came to Australia. We had to conceal our relationship for our safety. There were many barriers here to me becoming involved in the LGBTI community. I did not have the language, contacts or confidence.
During the Tribunal hearing as follows:[3]
[3] T14, line 10 to 14 and T14 line 39 to T15 line 4.
MEMBER:Then what happened when you got here? Apparently, you stopped talking to Y and she disappeared. How does that happen?
INTERPRETER: Even now I’m in depression because I try to be connected – to contact her. I couldn’t make it even – I’m in depression.
…
MEMBER:I’m just wanting to know how it was that you broke up with Y, because when she came here, she stopped talking to Y and then lost contact with her, and I’m just wondering how they broke up.
INTERPRETER: I need to ask myself why I cannot find – I was thinking maybe she left because maybe because of lack of security, maybe. That’s what I was thinking.
MEMBER:You couldn’t get a hold of her on the telephone? She couldn’t get a hold of her on the telephone?
INTERPRETER: No, I’ve never got her over the telephone.
The applicant submitted that the implication from the evidence given by the applicant was that she had made efforts to contact Y and that when she was unable to do so, this had made her depressed. A critical part of the Tribunal’s reasoning was its concern that the applicant had not tried to contact Y in anyway. This finding was not supported by the evidence and given its centrality to the rejection of the applicant’s claim to have been in a lesbian relationship with Y, provided a sound basis (without more) to establish legal unreasonableness.
The applicant identified further examples of what she submitted were lapses in rationality and/or reasonableness in the Tribunal’s decision.
The first of these emerged from R [39] which reads (with applicant’s emphasis):
When asked what the couple did together the applicant only answered that they did loving things and went to clubs. She did not elaborate on their daily life or what they did as a couple, any trouble they may have had as a couple or any other matter. The applicant did not live with her partner at any time during the course of their claimed twelve year relationship. The Tribunal consider that the applicant was friends with someone named Y and not in a lesbian relationship as claimed. The Tribunal considers that the applicant may have experimented with her sexuality with Y but does not consider that she was ever in a twelve year lesbian relationship with her.
The applicant submitted that the findings recorded in the highlighted sentences were lacking in rationality. While the applicant appeared to accept that the applicant and Y had experienced some form of same sex relationship, there was a failure on the part of the Tribunal to grapple with the implication of this finding on the applicant’s claim to identify as a lesbian.
As far as the Tribunal made findings about the applicant’s experience of her sexuality in Australia, the applicant submitted that these findings were also problematic.
First, the Tribunal’s undue focus on the applicant now being married to a man and having children with him, was said to be “manifestly unreasonable”.
The applicant submitted that by definition, a person claiming to be bisexual may well be in a stable heterosexual relationship at the time and may have children from that relationship. This was said to be reflected in the Instruction which stated (at [4.3.3]) that “An LGBTI applicant may be married or divorced, have had heterosexual relationships, may never have had a gay, lesbian or bisexual relationship, and/or may have children. Additionally, sexual orientation and gender identity are not necessarily fixed and can evolve over time. The presence of any of these factors does not mean the applicant is not gay, lesbian or bisexual, as social pressures may have forced them to conform to cultural norms”. It followed, according to the applicant, that the fact she had developed a relationship with a heterosexual man did not in any way contradict her claim to be bisexual.
The applicant submitted that equally it was not incumbent on her to show any evidence of participating in the LGBTI community or in any same sex relationships in Australia as a pre-condition to acceptance of her claim about her sexuality. In any case, there had been evidence before the Tribunal that the applicant had met briefly with a woman named A in Australia. This evidence was reproduced in the summary of the applicant’s claims (at [23] CB 214) but not referred to again in the Tribunal’s written statement and therefore not grappled with in the substantive reasoning.
Minister’s submissions
The Minister submitted that the Tribunal’s findings about the applicant’s claimed sexual orientation(s) were open, despite being findings for which reasonable minds might differ.
As far as the Tribunal had concluded that the applicant had not been in a relationship with a woman, the Minister submitted that this conclusion was not informed solely by a lack of documentary evidence provided by the applicant but instead had reflected the absence of any meaningful contact between the applicant and her ex-partner, contrary to what might be expected given the duration of their relationship. The Minister submitted that it was open for the Tribunal to find it “implausible…that she simply arrived in Australia never to speak to [her ex-partner] again” ([37] CB 217) and that “after twelve years in a committed relationship [the applicant’s ex-partner] would be the person the [applicant] reached out to” (at [38] CB 217). The Minister submitted that a line of inquiry based on the applicant’s claimed past relationship was a permissible form of inquiry recognised by the Instruction and that more generally, the Instruction did not preclude a decision-maker from considering the absence of documentary evidence in support of the claim.
The Minister submitted that the Tribunal had not misapprehended the applicant’s evidence about the nature of the contact that occurred between herself and Y when she (the applicant) came to Australia and the findings recorded at R [34]-[39] were broadly consistent with the applicant’s evidence and/or involved the Tribunal rejecting aspects of that evidence, especially around the implausibility of the applicant’s claim not to have talked to Y again upon arriving in Australia.
As far as the Tribunal had regard to the applicant’s marriage, the Minister submitted that it could not be case that the Tribunal was entirely precluded from taking into account the fact that the applicant was in a genuine and exclusive marital relationship with a man (and having had two children with him) essentially since arriving in Australia as evidence of the applicant not having been, or presently being, of either of the sexual orientation(s) she claimed.
The Minister submitted that the Tribunal had not specifically reasoned in a generalised way that one cannot be bisexual if one is married. Instead, taken overall with the other aspects of its credibility findings, the Tribunal had reasoned that the genuine and exclusive nature of her marital relationship was evidence undermining the applicant’s claimed sexual orientation(s). The Minister cautioned against conflating the former with the latter and submitted that the findings recorded by the Tribunal at R [62]-[66] were in any case consistent with the Instruction and especially [4.3.5].
The Minister submitted that the Tribunal did not impose any expectation on the applicant as to how she had to prove her claim by reference to a specific form of minimum engagement with the LGBTIQ community in Victoria. Instead, the Tribunal was permissibly able to ask the applicant about and consider the answers given by her based on her (lack of) connection with the LGBTIQ community. The Minister defended this as an entirely logical and reasonable and rational basis for the Tribunal’s specific factual conclusion.
GROUND TWO: RESOLUTION
I have approached the evaluation of ground two cognisant that the authorities on the ground of review of legal reasonableness recognise that:
(a)it is not amenable to rigidly defined categorisation or precise textual formulary and can comprehend decisions which have the quality of being “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification” and “obviously disproportionate” (BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [137] per Wigney J);
(b)there is an area of “decisional freedom” upon which the ground does not trespass and within which reasonable minds might reach different conclusions about the correct or preferable decision (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], [66]);
(c)it has a high threshold. The applicable standard has been described as “stringent”, and as involving more than mere disagreement (even “emphatic” disagreement) with the manner or outcome of the exercise of the power (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [135]).
I am not persuaded that it has been demonstrated in the present case that the Tribunal’s reasoning with respect to the applicant’s claim to be a bisexual woman (and former lesbian) who feared harm in Rwanda on that basis was logically unavailable or legally unreasonable. My conclusion reflects the following matters:
First, I accept, as I observed at hearing, that there was a subtlety or nuance in the responses given by the applicant to questions from the Tribunal that concerned her efforts to contact Y when she (the applicant) was in Australia, and the attitude of Y to the applicant’s departure for Australia, that were perhaps not fully understood by the Tribunal.
However, I am not ultimately convinced that the manner in which the Tribunal recorded and drew inferences from the applicant’s evidence and responses (as seen in R [35] to [38]) involved a process of reasoning that was simply not open to the Tribunal or which was made with an absence of logical connection between that evidence (viewed as a whole) and the process of reasoning. Instead, I consider that it was open to the Tribunal to characterise the attitude of Y to the applicant’s departure as one of indifference and that while the applicant’s responses and evidence suggested that she had at least tried to contact Y using social media, the Tribunal’s conclusion that no contact or efforts to make contact had occurred, did not, in my opinion, involve a significant betrayal of the tenor of the applicant’s responses.
Second, and relatedly, it is artificial to view the Tribunal’s findings in a vacuum. It is clear that the Tribunal, in rejecting the applicant’s claim to have been in a long-term relationship with Y, was concerned with several matters; the paucity of detail about the relationship, the lack of documentary evidence about the relationship and the (acknowledged) lack of contact with Y following the applicant’s arrival in Australia. The Tribunal was also concerned about the conduct of the applicant when she arrived in Australia and that she had not engaged in any relationship as a lesbian. These were all matters that were capable rationally of informing the Tribunal’s evaluation of the applicant’s claim to be a lesbian. The failure of the Tribunal to refer, in the context of these findings, to the applicant’s claim to have met once in Australia with a lesbian, A, does not change this analysis.
Third, I consider that the approach taken by the Tribunal to the significance of the applicant’s “committed heterosexual relationship” falls firmly into the category of an approach about which reasonable minds might differ. While plainly, entry into a heterosexual relationship does not automatically disqualify a person from identifying as a bisexual, I accept the submission of the Minister that nothing in the Tribunal’s reasoning suggests that the Tribunal evaluated the veracity of the applicant’s claim by introducing this erroneous measure. Rather, as is clear from R [42], the fact that the applicant had moved into a heterosexual relationship was further confirmatory of the conclusion reached by the Tribunal (by reference to the matters identified at [87] above) that the applicant’s claims regarding her sexual identity and orientation lacked credibility.
Ground two does not succeed.
ORDERS
In circumstances where the applicant has succeeded in establishing jurisdictional error in the decision of the Tribunal, I will make orders the effect of which is to set aside the decision of the Tribunal made on 15 April 2019 and return it to the Administrative Review Tribunal to be remade, according to law.
I will further order, where the applicant has enjoyed success in prosecuting her application, that the Minister pay her costs in an agreed amount or in default of agreement, an amount reflecting the scale set out in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 3 February 2025
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