CIS22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 920
Federal Circuit and Family Court of Australia
(DIVISION 2)
CIS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 920
File number(s): SYG 973 of 2022 Judgment of: JUDGE LAING Date of judgment: 9 November 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to grant the applicant a protection visa – whether the Tribunal asked itself the wrong question, reasoned in an illogical or irrational way and/or relied upon unwarranted assumptions – whether the Tribunal misapplied the relevant law, erred in its consideration of the applicant’s claims and/or erred in its application of the ‘real chance’ test – jurisdictional error established. Legislation: Migration Act 1958 (Cth) ss 5J, 116 Cases cited: HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Minister for Immigration v Yusef [2001] HCA 30; (2001) 206 CLR 323
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 31 October 2022 Counsel for the Applicant: Mr D McDonald-Norman Solicitor for the Applicant: Legal Aid New South Wales Counsel for the First Respondents: Mr J Kay Hoyle SC Solicitor for the First Respondent: Hunt & Hunt Lawyers Counsel for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 973 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIS22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
9 November 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 23 June 2022.
2.A writ of mandamus issue directing the second respondent, differently constituted, to determine the applicant’s application for review according to law.
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 LAING
Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
background
The applicant is a citizen of Kenya. He arrived in Australia in 2018 as the holder of a Student (Class TU) (Subclass 500) visa (student visa). On 17 September 2021, the applicant’s student visa was cancelled pursuant to s. 116(1)(g) of the Migration Act 1958 (Cth) due to the applicant’s conviction for various driving offences.
On 3 December 2021, the applicant lodged an application for a protection visa.
On 25 February 2022, the Delegate refused the application. The applicant sought review by the Tribunal.
On 23 June 2022, the Tribunal affirmed the Delegate’s decision.
the tribunal’s decision
The Tribunal did not accept the applicant’s claims to have had a sexual relationship with either of his two witnesses (BW or EW) (at [161]-[174]). The Tribunal found that his application failed on that basis, as “[a]ll the applicant’s claims in relation to both the refugee criterion and the complementary protection criterion depend on his identity as bisexual, or at least being perceived as bisexual or homosexual” (at [175]).
However, the Tribunal acknowledged “the possibility that the applicant is in fact bisexual but has had difficulty compiling sufficient evidence of that” (at [177]). In contemplation of this, the Tribunal considered whether the application would succeed if it was satisfied of his bisexuality.
The Tribunal had regard to submissions provided by the applicant’s representative citing “various pieces of country information that suggest that members of the LGBTQI+ community in Kenya are subjected to varying acts some of which amount to persecution” (at [184]). However, the Tribunal found that such acts appeared to have been directed at people expressed as being “members of the LGBTQI+ community” who were not living “discreetly” (at [185]-[186]). Having regard to this and what it understood to be the applicant’s acceptance that “he will not be at risk if he lives discreetly”, the Tribunal found that “acting discreetly will have the effect of avoiding persecution” (at [180]-[189]).
The Tribunal found that the applicant would choose to live discreetly in Kenya, as he had in Australia, “for reasons that are not related to a reasonably held fear of persecution” (at [190]-[242]). Whilst the Tribunal acknowledged that this “choice” may change at some point in the future, the Tribunal considered that this was “speculative and not relevant to [its] decision” (at [221]-[222]).
On the basis of the above, the Tribunal concluded that the applicant did not have a “well-founded” fear for the purposes of the refugee criterion (at [244]). It also concluded that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being removed to Kenya (at [251]). Accordingly, the Tribunal affirmed the Delegate’s decision (at [255]).
proceedings before this court
The applicant commenced the current proceedings by application filed on 4 July 2022. The applicant ultimately relied upon a second further amended application filed on 2 November 2022 containing the following grounds of judicial review:
1.The Second Respondent (Tribunal)’s decision (Decision) was affected by jurisdictional error because it asked itself the wrong question, reasoned in an illogical or irrational way and/or relied on unwarranted assumptions.
Particulars
(a)The Tribunal was not satisfied that the Applicant had had a sexual relationship with either of his witnesses (“[EW]” and “[BW]”): D[174].
(b)The Tribunal proceeded to conclude that ‘[o]n that basis, the application must fail’, because ‘[a]ll the applicant’s claims in relation to both the refugee criterion and the complementary protection criterion depend on his identity as bisexual, or at least as being perceived as bisexual or homosexual’: D[175]…
(d)By treating the question of whether the Applicant had engaged in sexual relationships with [EW] and [BW] as determinative of, or identical to, the question of whether the Applicant was ‘bisexual’ or ‘perceived as bisexual or homosexual’, the Tribunal:
i. asked itself the wrong question;
ii.reasoned in an illogical or irrational way; or
iii.relied on an unwarranted assumption which caused it to fail to consider questions arising from other material put before the Tribunal regarding the Applicant’s sexual orientation and identity…
(f) The Tribunal’s Decision was hence affected by jurisdictional error.
1A.The Tribunal’s Decision was affected by jurisdictional error because it relied on illogical or irrational reasoning.
Particulars
(a)In concluding that the Applicant had not had a sexual relationship with [EW] or [BW] (D[174]), the Tribunal materially relied upon:
i.the finding that there was a ‘significant’ inconsistency between the Applicant’s evidence and that of [BW] as to which of them first entered the room on the first occasion when they had sex (D[165]); and
ii.the finding that it was ‘unlikely’ that, when the Applicant and [EW] were asked to provide examples of unusual aspects of their relationship so that their versions could be compared, ‘they would both choose the same relatively mundane examples’ (D[172]).
(b)By materially relying upon each of these findings as part of the basis for its adverse credibility findings, the Tribunal engaged in illogical or irrational reasoning.
(c)The Tribunal’s error was material to its ultimate exercise of power, in combination with the errors alleged in ground 2 and/or ground 3.
(d)The Tribunal’s Decision was hence affected by jurisdictional error.
2.The Tribunal’s Decision was affected by jurisdictional error because it misapplied the relevant law.
Particulars
(a)The Tribunal found that, if he were to return to Kenya, the Applicant would live ‘discreetly’ for reasons ‘that are not related to a reasonably held fear of persecution’: D[242]-[244]…
(c)In reaching that conclusion:
i.the Tribunal failed to consider whether the Applicant’s claim that he would refrain from openly engaging in same-sex sexual conduct due to fear of societal and family stigmatisation would amount to a modification of behaviour due to a fear of persecution or significant harm; or
ii.the Tribunal failed to consider whether the Applicant’s proposed modification of behaviour was a modification of behaviour inconsistent with s 5J(3)(a)-(c) of the Migration Act 1958 (Cth)…
(e)The Tribunal’s error was material to its ultimate exercise of power, either by itself or in combination with the errors alleged in ground 1 and/or ground 1A.
(f)The Tribunal’s Decision was hence affected by jurisdictional error.
3.The Tribunal’s Decision was affected by jurisdictional error because it erred in its consideration of the Applicant’s claims and/or erred in its application of the ‘real chance’ standard.
Particulars
(a)The Tribunal found that, if he were to return to Kenya, the Applicant would live ‘discreetly’ for reasons ‘that are not related to a reasonably held fear of persecution’: D[242]-[244]…
(c)The Tribunal erred in its consideration of whether, if the Applicant were to engage in same-sex sexual conduct in Kenya, there was a real chance that he would be discovered by other members of Kenyan society and would suffer serious harm as a result (notwithstanding his attempts to live ‘discreetly’).
(d)In particular, the Tribunal:
i.failed to consider a claim raised by the Applicant or an issue squarely arising from the Applicant’s claims;
ii.proceeded on the basis of a misunderstanding of the Applicant’s evidence or claims; or
iii.misapplied the ‘real chance’ standard as part of its determination of whether the Applicant possessed a well-founded fear of persecution in Kenya; or
iv.failed to engage with or consider the material and submissions before it, to the extent required by law, in concluding that the possibility that the Applicant would cease to act discreetly in future was ‘speuclative’…
(f)The Tribunal’s error was material to its ultimate exercise of power, either by itself or in combination with the errors alleged in ground 1 and/or ground 1A.
(g)The Tribunal’s Decision was hence affected by jurisdictional error.
Ground 1
Ground 1 contended that the Tribunal asked itself the wrong question, reasoned in an illogical or irrational way and/or relied on unwarranted assumptions. In this regard, it was contended that the Tribunal treated the question of whether the applicant had engaged in sexual relationships with EW and BW as necessarily determinative of, or identical to, the question of whether the applicant was “bisexual” or “perceived as bisexual or homosexual”. This, it was submitted, resulted in the Tribunal failing to engage with the applicant’s other evidence regarding his claimed sexual identity. This included evidence that the applicant had provided regarding his evolving understanding of his sexual orientation in Kenya, his attempts to develop a label for his sexual orientation and his desire to connect further with the LGBTQI+ community in Australia.
The impugned part of the Tribunal’s reasoning was located at [174]-[175]:
174.On balance the Tribunal is not satisfied that the applicant has had sex with either of the witnesses he called.
175.On that basis, the application must fail. All the applicant's claims in relation to both the refugee criterion and the complementary protection criterion depend on his identity as bisexual, or at least as being perceived as bisexual or homosexual.
For the Minister, Mr Kay Hoyle SC observed that the Tribunal had referred, earlier in its reasoning, to other evidence the applicant had given regarding his sexual identity. This evidence, it was submitted, did not possess the centrality of the evidence that the applicant had given regarding his claimed sexual relationships with two men. Mr Kay Hoyle SC submitted that it ought to be inferred not that the Tribunal failed to consider the other evidence in undertaking its evaluation at [174]-[175], but rather that it had concluded that it was not materially relevant given the findings that it had made regarding the applicant’s claimed sexual relationships. In this regard, Mr Kay Hoyle SC invited the Court to draw an inference along the lines considered in Minister for Immigration v Yusef [2001] HCA 30; (2001) 206 CLR 323 at [69].
I am not prepared to draw such an inference in this case. Whilst the Tribunal did refer earlier in its reasoning to other evidence that had been given by the applicant, this was by way of recitation or summarisation. It involved no process of evaluation. The express language used by the Tribunal at [174]-[175] indicates the Tribunal treated its non-acceptance of the applicant’s claim to have had sex with either of his witnesses as entirely determinative of the question of his sexual identity.
This, at least, involved a misconstruction of and/or a failure to answer the applicant’s claims. The applicant’s claims regarding his sexual identity were not limited to his claim to have had a sexual relationship with two men. The latter was capable of logically informing the question of the applicant’s sexual identity. However, it did not logically follow that the applicant could not be bisexual, simply because he had not had sexual relationships with two men.
For the above reasons, I accept that error has been demonstrated under ground 1. I will deal with the question of materiality separately below.
Ground 1A
Ground 1A contended that the Tribunal relied upon illogical or irrational reasoning in relying upon what it found to be certain issues with the applicant’s evidence.
The first aspect of the Tribunal’s reasoning that was impugned related to the Tribunal’s finding that there was a “significant” inconsistency between the applicant’s evidence and that of his witness, BW, as to which of them first entered the room when they first had sex. At [165], the Tribunal stated:
165.[BW] was adamant that on the first occasion that they had sex, he was the first to enter the bedroom. [The applicant] was adamant that he had gone into the room first. Neither would be moved from their evidence on this point and each claimed to remember the occasion clearly. That was a significant inconsistency in their evidence.
Mr McDonald-Norman contended that the detail relied upon by the Tribunal in this regard was “extremely trivial” and incapable of supporting the weight attributed to it by the Tribunal. Mr McDonald-Norman also contended that the Tribunal’s reliance upon this discrepancy in the evidence was premised on the unsupported assumption that the applicant and BW would have precise and accurate recollections of what happened.
I do not accept that the Tribunal was obliged to treat this difference in the accounts given as being “extremely trivial”. The applicant and his witness were giving evidence of their first sexual encounter. The manner in which this occurred (and in particular, who followed whom, resulting in its instigation) was potentially of some significance. I also do not accept that the Tribunal proceeded on an unsupported assumption regarding the strength of the applicant and BW’s memories. As the Tribunal observed, BW was adamant that the applicant had followed him into his room. When asked by the Tribunal member about the possibility that the applicant went to the room first and BW followed him in, BW had rejected this (Transcript (T) 41.32). The applicant had insisted that he was “100 per cent sure” that BW had followed him into the room, after he had told BW that he intended to take a nap and got into bed (T53.18). Both witnesses claimed to have clear memories of what occurred. In these circumstances, I consider that it was open to the Tribunal to place the weight upon this inconsistency that it did.
Mr McDonald-Norman also contended that the Tribunal’s reasoning at [169]-[172] demonstrated illogicality or irrationality. That reasoning was as follows (emphasis added):
169.Both the applicant and [EW] were asked about any particularly memorable incidents or aspects of their sexual relationship.
170.Both identified the fact that they sometimes had sex in the car. Both also identified an occasion on which [EW’s] brother interrupted them by knocking on the door. [EW] was somewhat hesitant and unconvincing in his testimony.
171.Neither suggested anything else remarkable about their sexual relationship although [EW] did say that the sexual activity in the car was usually in a park.
172.The Tribunal finds it unlikely that on being asked to provide examples of unusual aspects of their relationship so that their versions could be compared, they would both choose the same relatively mundane examples.
This reasoning is more questionable. The fact that the applicant and EW found the same aspects of their relationship memorable did not necessarily undermine their evidence. EW’s evidence regarding interruption by his brother also appears to have followed some prompting (after the Tribunal had queried if they had ever been interrupted: T46.29). However, on balance, I accept the contention by Mr Kay Hoyle SC that it was open to the Tribunal to consider it unlikely that the applicant and his witness would have chosen the same “relatively mundane” examples when asked to refer to any unusual aspects of their relationship. The issue for the Tribunal does not appear to have been that there were not more unusual examples provided, but that the same “relatively mundane” examples were raised by the two witnesses from all of their experiences together.
For the above reasons, I am not persuaded that relevant error has been demonstrated under Ground 1A.
Ground 2
Ground 2 contended that the Tribunal misapplied the law in failing to consider whether the applicant would refrain from openly engaging in same-sex sexual conduct due to a fear of persecution or significant harm. Alternatively, the Tribunal was contended to have failed to consider whether the applicant’s proposed modification of behaviour was inconsistent with s 5J(3)(a)-(c) which, without limitation, stated that “serious harm” included (a) a threat to the person’s life or liberty; (b) significant physical harassment; and (c) significant physical ill-treatment.
At the hearing of the matter, Mr McDonald-Norman observed that the Tribunal had noted that the applicant had given a number of reasons for not expressing his sexuality more openly in Australia. Those reasons included discrimination and social stigmatisation that, in Kenya, may be capable of amounting to persecution or significant harm. Mr McDonald-Norman submitted that the Tribunal failed to consider whether the operative reason that the applicant would behave discreetly in Kenya was a fear of harm capable of amounting to persecution or significant harm.
Mr Kay Hoyle SC submitted that upon a fair reading of the Tribunal’s decision, the Tribunal did consider and find that the central and operative reason that the applicant would behave discreetly in Kenya would not be a fear of persecution or significant harm. Mr Kay Hoyle SC observed that the Tribunal had referred to reasoning in a United Kingdom decision (HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31) which made a distinction between persecution and social pressures such as wanting not to distress one’s parents or embarrass one’s friends. Mr Kay Hoyle SC submitted that the Tribunal reasoned, at [224]-[243], that the central and operative motivation for the applicant behaving discreetly would be social pressures not amounting to persecution or significant harm.
If the ground were taken in isolation, I may have been inclined to accept Mr Kay Hoyle SC’s construction. It is apparent from [224]-[243] of the Tribunal’s decision that the social pressures that the Tribunal contemplated as essentially motivating the applicant’s concealment of his sexual identity in Kenya were not regarded by the Tribunal as amounting to serious or significant harm. The Tribunal’s reasons do not indicate any misunderstanding by the Tribunal of the fact that discrimination and social stigmatisation are capable, in some contexts, of amounting to such harm.
However, given the difficulties I have found in relation to other, related aspects of the Tribunal’s reasoning under Ground 3, it is unnecessary (and perhaps undesirable) to express a final conclusion in relation to this ground.
Ground 3
Ground 3 contended that the Tribunal erred in considering the applicant’s claims and/or applying the ‘real chance’ standard.
In this regard, Mr McDonald-Norman contended that the Tribunal failed to consider a claim that the applicant’s sexual orientation may be discovered regardless of whether he acted “discreetly”. Alternatively, the Tribunal was contended to have misunderstood the ‘real chance’ test and/or misunderstood or failed to engage with the material that was before it.
The effectiveness of acting “discreetly”
For the Minister, Mr Kay Hoyle SC submitted that the applicant did not claim that people would suspect him in Kenya if he behaved discreetly. Rather, Mr Kay Hoyle SC suggested that the applicant’s claim ought to be characterised as being that he would not be able to be discreet in Kenya (stating, “I cannot hide it forever”). Mr Kay Hoyle SC submitted that this was what was not accepted by the Tribunal.
Regardless of whether such a claim was expressly made, the Tribunal relied upon its finding, at [189] of its decision, that the applicant “acting discreetly will have the effect of avoiding persecution”. This appears to have informed the Tribunal’s conclusions at [244]-[251] that the applicant would not face a real chance or risk of relevant harm.
Issue was taken with the articulated basis for the finding at [189], which was expressed at [180]-[189] of the Tribunal’s decision.
Mr McDonald Norman observed that in coming to this conclusion, the Tribunal expressed at [180] that it had relied upon [60] of the applicant’s statement to the effect that: “the applicant accepts that he will not be at risk if he lives discreetly, but that he thinks he will not be able to hide his feelings”. However, whilst [60] of the applicant’s statement did express that the applicant did not consider that he would be able to hide his sexual orientation forever, there is no part of that paragraph in which the applicant accepted that by living discreetly, he would be able to avoid any risk of harm.
Nor does such a concession appear to have been made in any other part of the materials. In this regard, the Tribunal additionally relied at [188]-[189] upon part of the applicant’s representatives’ submissions which, it considered, “contemplate[d] that acting discreetly will avoid persecution”. However, this is not what the submissions said. The part of the submissions relied upon stated that acting discreetly in Kenya “would not be a choice but a necessity to avoid persecution”. This did not concede that by acting discreetly, the applicant would be able to avoid persecution on an enduring basis. Rather, it expressed that if the applicant did not act discreetly, he would be persecuted.
The Tribunal also referred at [181] to what it characterised as the applicant’s evidence at hearing to the effect that “it would be difficult to hide his sexuality in Kenya because of the closeness of the community”. The Tribunal appears not to have accepted this due to its observation at [182] that the applicant “has generally lived and associated with Kenyans whilst he has been in Australia”. The applicant did give evidence at the Tribunal hearing regarding the closeness of the Kenyan community. However, he also claimed that differences in the occupation or activities of his community in Kenya were an additional reason why the situation there was different to his situation in Australia (at T52.18):
MEMBER:But you’re keeping it a secret in Australia anyway. So what difference is there?
APPLICANT: (Indistinct) in the type of a community in Kenya as in Australia. For instance, when I was living with [EW and another], it was easy to stay close with [EW], because most of the time [the other person] was busy, and (indistinct) affairs with [EW], and there is no matter (indistinct) what are you doing, what are you doing with [EW]. But in Kenya (indistinct) most of the people are idle, so they follow each of one - every of your steps (indistinct.)
MEMBER: Sorry, could you just repeat that? Sorry, could you just repeat that, please. Back in Kenya, you would be what?
APPLICANT: Most people are idle, and they follow what you do, every step.
MEMBER: Most people are idle? Is that what you said?
APPLICANT: They - they don’t - they are not that busy.
This evidence does not appear to have been considered by the Tribunal in coming to its decision.
Mr Kay Hoyle SC observed that the Tribunal also relied upon country information indicating that adverse treatment of members of the Kenyan LGBTQI+ community only applied to those seen as being a part of that community. This may be accepted. However, in coming to its conclusion that the applicant could avoid persecution by acting discreetly the Tribunal also expressly relied upon concessions that were not made and did not have regard to evidence that the applicant had given that was of central relevance to this issue. Subject to materiality considerations discussed below, such errors were capable of resulting in jurisdictional error.
The conclusion that the prospect of the applicant’s “choice” to act discreetly changing in the future was speculative
At [221]-[223] of the Tribunal’s decision, the Tribunal concluded as follows:
221.The applicant's written statement of 3 December 2021 appears to suggest that at some point in the future he may want to live in a way that suggests he is gay or bisexual. That is also suggested in the submissions. It is speculative. The Tribunal is satisfied that, if he is returned to Kenya, the applicant will choose not to live as openly gay or bisexual.
222. That choice may change at some point in the future but that is speculative and not relevant to this decision.
223.The Tribunal is satisfied that the applicant will choose to continue to live discreetly or in other words to not live as openly gay or bisexual.
Both parties agreed that the Tribunal used the word “speculative” in the sense of not resulting in a real chance of relevant harm (see Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 572).
The findings that were made at [221]-[223] of the Tribunal’s decision were serious ones. They contemplated that the applicant would “choose” to conceal his sexual identity for the foreseeable (and otherwise indefinite) future. To contemplate that a person would so restrict their lives by indefinitely concealing such a fundamental part of their identity, for reasons other than persecution, in an environment where they may otherwise be persecuted, is no small thing. Such a finding required a clear articulation of its basis by the Tribunal.
It also required careful evaluation of the applicant’s evidence in relation to this issue. In this regard, the applicant had given evidence regarding his evolving understanding and expression of his sexual identity. He claimed to have progressed from feeling unable to act at all on his attraction to a colleague in Kenya to being involved in two sexual relationships in Australia. The applicant stated that he was contemplating telling his brother about his sexual identity (although he did not feel that he could tell his mother). The applicant expressed that he was increasingly becoming more certain of himself and his sexuality. He stated that if he met a man he wanted to be with, he did not feel that he would be able to hide his feelings. He expressed that he wanted to engage more with the LGBTQI+ community and ultimately learn how to feel comfortable “with someone that I love” (T50.44). In this regard, the applicant stated at his hearing before the Tribunal (T51.45):
APPLICANT: The problem is you can’t keep it a secret from people (indistinct) because at one point it must come out, when you love someone. It’s something that - it happens, and you have to show it, and it’s different (indistinct) like, generally, especially the kind of society where you live in Kenya. It’s different.
I accept that the Tribunal referred to much of the above evidence, in what appears to have been a careful and detailed summarisation of the evidence that was before it in the earlier parts of its decision. However, the Tribunal does not appear to have (at least expressly) engaged with the applicant’s evidence in this regard in any real detail at [221]-[223] of its decision.
The Tribunal’s reasons do not disclose its basis for rejecting, despite this evidence, that the applicant’s “choice” to act discreetly may foreseeably change at some point in the future. The Tribunal simply rejected “that at some point in the future he may want to live in a way that suggests he is gay or bisexual” as “speculative” (at [221]). I am therefore unable to identify the basis of the Tribunal’s findings in this regard from the reasoning that was expressed by the Tribunal. What was it that the Tribunal found so unlikely about the applicant’s claims that he may choose to be less “discreet” in the future? Did the Tribunal reject the applicant’s evidence that he was becoming increasingly more certain of his identity and contemplating telling at least one member of his family? Did the Tribunal reject that he would be unable to conceal his identity in the same manner as he had in the past if he entered into a more serious relationship and fell in love? Or did it find the prospect of him entering into such a relationship to be unlikely or “speculative”? If so, why?
For the Minister, Mr Kay Hoyle SC was unable to identify any express reasons that the Tribunal gave for coming to its conclusion at [222] notwithstanding the evidence set out above. No basis for this finding appears, on my reading, to have been articulated by the Tribunal.
For the above reasons, I accept the applicant’s contention under ground 3 that the Tribunal did not engage with or consider the material that was before it to the extent required by law.
Subject to considerations of materiality, this too would be capable of demonstrating jurisdictional error.
Materiality
The Minister contended that the Tribunal’s rejection that the applicant was bisexual, and its finding that even if the applicant was bisexual he would not face a real chance of relevant harm, articulated separate and independent bases for the Tribunal’s decision. The Minister therefore contended that in order for materiality to be established, the applicant would need to demonstrate relevant error on the bases contended under grounds 1 or 1A and grounds 2 or 3.
As I have found that error has been demonstrated under grounds 1 and 3, materiality is not in question. However, for completeness, I note that if I had only found error under ground 3, I would nonetheless have been inclined to find that materiality had been established. This is because I would have been inclined to accept the applicant’s argument that in considering the applicant’s situation on the premise that he was bisexual, the Tribunal was applying the ‘what if I am wrong test’ considered in cases such as Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
Whilst [175] of the Tribunal’s decision in the present case was expressed in strong terms (that the application “must fail”, as the Tribunal did not accept the applicant had a sexual relationship with his witnesses), this followed the Tribunal’s more hesitant expression at [174] that “[o]n balance” the Tribunal was not satisfied that the claimed sexual relationships had occurred. It was then followed by the Tribunal’s acknowledgement at [176] of the difficulties applicants may face in presenting evidence regarding sexuality, and by its observation that it had considered the counterfactual “[i]n contemplation of the possibility that the applicant is in fact bisexual but has had difficulty comping sufficient evidence of that”.
Given this level of hesitation or doubt expressed by the Tribunal in relation to its rejection of the applicant’s claims to be bisexual, I would not have accepted that this presented a separate and independent basis for the Tribunal’s decision that, if free from relevant error, was capable of sustaining the decision.
CONCLUSION
As jurisdictional error has been demonstrated, the application before this Court succeeds.
I will hear the parties in relation to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 9 November 2022
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