Cis22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 1224
•21 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIS22 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1224
File number(s): SYG 837 of 2023 Judgment of: JUDGE GOODCHILD Date of judgment: 21 December 2023 Catchwords: MIGRATION – protection visa – refused to grant protection visa under section 65 of Migration Act 1958 (Cth) – Administrative Appeals Tribunal affirm delegate’s decision – applicant’s claim for protection grounded on claim to be member of particular social group, being homosexual in Kenya – judicial review – jurisdictional error – whether decision by Tribunal involved assumptions pre-conceptions or prejudgments –materiality of reasoning in error – writ of certiorari issued – writ of mandamus issued. Legislation: Migration Act 1958 (Cth), ss. 65, 116. Cases cited: Abboud v Minister for Immigration and Border Protection [2018] FCA 185
BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532
CZT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 819
Masi-Haini v Minister for Home Affairs [2023] FCAFC 126
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
WAGO of2002vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 20 September 2023 Place: Brisbane Counsel for the Applicant: Mr McDonald-Norman Solicitor for the Applicant: Legal Aid Commission of NSW Counsel for the Respondents: Ms Francois Solicitor for the Respondents: Hunt & Hunt Lawyers ORDERS
SYG 837 of 2023 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 GOODCHILD
DATE OF ORDER:
21 DECEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue, quashing the decision of the second respondent dated 26 April 2023.
2.A writ of mandamus issue, directing the second respondent, differently constituted, to determine the applicant’s application for review according to law.
3.The costs of the applicant are to be paid by the first respondent.
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 GOODCHILD:
INTRODUCTION
These proceedings concern an application for judicial review of a decision of the Administrative Appeals Tribunal on 26 April 2023, affirming a decision made by a delegate of the first respondent to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
For the reasons outlined below, the application before this Court succeeds.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The applicant is a citizen of Kenya. In 2018 the applicant arrived in Australia as the holder of a student visa Class TU. On 17 September 2021, the applicant’s student visa was cancelled pursuant to s 116(1)(g) of the Act due to the applicant’s conviction for various driving offences.
On 3 December 2021, the applicant lodged an application for a protection visa. The applicant attended an interview with a delegate of the first respondent on 7 January 2022. On 25 February 2022 the delegate refused to grant the visa.
The applicant applied to the Tribunal for a review of the delegate’s decision which was heard by the Tribunal in May 2022 (“the original Tribunal hearing”). The Tribunal ultimately affirmed the delegate's decision on 23 June 2022, but that decision by the Tribunal was quashed by this Court on 9 November 2022 and the applicant’s application for a protection visa was remitted to the Tribunal to be redetermined.
The applicant appeared before a differently constituted Tribunal on 11 April 2023. The applicant appeared in person with legal representation. There was no interpreter used for the hearing. The Tribunal also received oral evidence from two witnesses appearing by video using Microsoft Teams.
The applicant’s claims for protection are summarised by the applicant in his submissions at [5] and are reproduced as follows:
a. The Applicant’s first memory of being attracted to a man was his attraction to C, a colleague in Kenya, although he avoided dealing with these feelings: Court Book (“CB”) 171 [11]-[14].
b. In 2019, after moving to Australia, the Applicant began a sexual relationship with his cousin, EK: CB 172-173 [18]-[31]. EK provided a statement in support of the Applicant’s protection visa application: CB 238.
c. The Applicant also had a sexual relationship with BK, a friend of EK: CB 173 [32]-[34]. BK provided a statement in support of the Applicant’s protection visa application: CB 237.
d. In his statement accompanying his protection visa application, the Applicant described his sexual identity as ‘complicated’, ‘because I have been raised in Kenya which has strong homophobia and strong prejudice against any other form of sexuality, which is illegal’: CB 173 [42]. In that statement, the Applicant said that he could call himself ‘bisexual’: CB 173 [38]. In his hearing before the Tribunal on 11 April 2023, the Applicant indicated that ‘I would describe myself as homosexual’: CB 91.18-19; see CB 54 [28].
e. The Applicant has said that ‘[i]n Kenya, you are required to reject and conceal any kind of sexual orientation which is not ‘straight’ to cope with the stigma’, and that as a result he has ‘for many years acted as ‘straight’ as I could in public and indeed for myself’: CB 173-174 [43]-[44]. He has said that he still does not feel comfortable disclosing his sexual orientation as anything other than straight ‘to family, friends unless necessary, co-workers or members of the public’, but might feel more comfortable disclosing this to members of the LGBT community: CB 174 [45]. He has also said that he is gradually ‘coming to feel more myself, and more connected to my feelings, since being in Australia’, but that ‘this is still difficult for me’: CB 174 [47].
f. The Applicant fears that, if returned to Kenya, ‘the community will suspect that I am doing the wrong thing by being with a man’, and that if they find out he is attracted to men ‘they will harm me or kill me’: CB 175 [59]. He also fears that ‘people will eventually suspect this about me because I cannot hide it forever’, and that ‘[i]f I meet a man that I want to be with I will not be able to hide my feelings’: CB 175 [60].
On 26 April 2023, the Tribunal affirmed the decision made by the delegate, concluding that the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm for any of the reasons claimed by him. It is this decision the applicant seeks judicial review by these proceedings.
THE TRIBUNAL’S DECISION
The Tribunal identified the issue in the applicant’s case to be the credibility of the applicant and whether, on accepted claims, the criteria for protection was fulfilled.
At [29] of its Decision, the Tribunal identified six credibility concerns regarding the applicant’s claims as to his sexuality. Of the six credibility concerns, three relate specifically to the inconsistencies in evidence between the applicant and one of his witnesses, EK, regarding the details of their sexual relationship (credibility finding 1); as between the applicant and another of his witnesses, BK, regarding their first sexual encounter (credibility finding 2); and between the applicant and BK as to the evidence as to what caused the applicant and BK to initiate this sexual encounter (credibility finding 3).
The fourth credibility finding is the subject of Ground 2 of the applicant’s present judicial review application. The fifth credibility finding concerned the applicant being vague and non-specific in the original Tribunal hearing as to LGBT organisations or groups that had been investigated. The Tribunal suggested that the applicant’s failure to indicate a knowledge of Mardi Gras at the original hearing could compound concerns as to a lack of genuine exploration of LGBT organisations and groups at the time of the original hearing.
The sixth credibility finding concerned the failure by the applicant to provide a narrative of his childhood and adulthood in Kenya that demonstrated conflict or confusion in relation to him having significant sexual interest in men. This credibility finding is the subject of Ground 1 of this judicial review application.
The Tribunal “firmly” disbelieved the claims made by the applicant of the sexual encounter in Australia with EK and BK. The Tribunal determined at [78] of its Decision that the applicant concocted the sexual encounters in collaboration with the two witnesses and it was this concoction which significantly undermined the applicant’s broader credibility as to his sexuality [78]. The Tribunal was concerned that the two witnesses had provided untruthful evidence and that there had been a “well-organised, coordinated attempt to concoct claims for protection…”. It is difficult to see how “well-organised and coordinated” this purported concoction attempt had been in the circumstances where the Tribunal was critical of the applicant and his two witnesses for the inconsistency of evidence between them. It is to be remembered that the hearing before the Tribunal occurred on 11 April 2023 and the events to which the Tribunal’s questions related to events that occurred some four and five years earlier.
The parties helpfully summarise in their written submissions the Tribunal’s reasoning which I reproduce as follows:
·The Tribunal recorded that the applicant’s written evidence included the following statements:
· that his first attraction in Kenya to another male was a co-worker called C. This had been when he was at the age of 23-24 but he had felt that his feelings were “wrong” and nothing happened ([11], [13], [14]);
· after this he had been single or dating women before he came to Australia ([16], [17]); and
· his first sexual experience with a man was in Australia ([24], [25]).
·The Tribunal found that there was ‘a significant number of inconsistencies in evidence’ between the Applicant and EK about their sexual relationship: [32]-[40]. The Tribunal hence did not accept that the Applicant and EK had had a sexual relationship: [41].
·The Tribunal found that there were ‘key inconsistencies’ between the Applicant and BK about their first sexual encounter: [42]-[49]. The Tribunal’s credibility concerns arising from these inconsistencies were ‘reinforced’ ([50]) because it found that there were further inconsistencies ‘as to what caused the applicant and [BK] to initiate the sexual encounter and in relation to what made them both understand that they were sexually interested in men’ ([51]-[56]). The Tribunal found that this evidence was ‘undermining of the applicant’s credibility in relationship with [BK]’: [56].
·The Tribunal found that there was an ‘inconsistency and disconnect’ as to the Applicant’s claims that he used to delete phone conversations with BK and EK: 57]-[61]. These findings are the subject of Ground 2.
·The Tribunal found that the Applicant had provided ‘vague and non-specific evidence’ about the LGBT organisations or groups he had investigated: [62]-[68].
·The Tribunal found that ‘the totality of the applicant’s evidence does not provide a narrative of his youth, puberty and adulthood in Kenya, up until coming to Australia at the age of 28, that was overly persuasive in terms of confusion and conflict regarding his sexual identity and sexual interest in men’: [74]; see also [69]-[74]. These findings are the subject of Ground 1.
·The Tribunal stated that it ‘firmly disbelieves claims by the applicant of sexual encounters in Australia with [EK] and [BK]’: [78]. While it acknowledged the possibility that the Applicant may be homosexual or bisexual without those encounters having occurred, it noted that its finding that the Applicant had concocted these claimed encounters with BK and EK was ‘significantly undermining of his broader credibility as to his sexuality’: [78]. The Tribunal found that these credibility concerns were ‘compounded by the cumulative impact of the other credibility concerns identified, which the Tribunal acknowledges are less significant’: [78].
·The Tribunal hence found that, ‘[c]onsidering the cumulative impact of the credibility issues outlined’, it was not satisfied that the Applicant was a credible or truthful witness, and that it could not be satisfied ‘as to the substantive claims as to his sexuality’: [79]. The Tribunal was hence not satisfied that the Applicant was homosexual or bisexual, or that he had engaged in same-sex sexual activity: [80].
·The Tribunal found that medical evidence provided by the Applicant and further evidence of the Applicant’s involvement in LGBT online groups and media consumption did not overcome the cumulative impact of its credibility concerns: [81]-[91].
·The Tribunal was hence not satisfied that the Applicant would face a real chance of persecution, or a real risk of significant harm, if he were to return to Kenya: [93]-[97].
PROCEEDINGS BEFORE THIS COURT
The applicant relied upon a Further Amended Application filed on 21 August 2023 containing the following grounds of review:
1.The decision of the Second Respondent (Tribunal) was affected by jurisdictional error because it impermissibly relied on illogical or irrational reasoning and/or relied upon unsupported and stereotypical assumptions which caused it to fail to lawfully consider the evidence before it.
Particulars
a. In its decision, the Tribunal found that ‘the totality of the applicant’s evidence does not provide a narrative of his youth, puberty and adulthood in Kenya, up until coming to Australia at the age of 28, that was overly persuasive in terms of confusion and conflict regarding his sexual identity and sexual interest in men, when sexual interest mostly develops during puberty, particularly given that he was living in a culture that reviles bisexuality and homosexuality’ (Narrative Finding): D[74].
b. In its decision, the Tribunal found that it ‘has some concerns about the applicant now having an exclusive interest in men, given that he stated that he only had a sexual interest in one male in Kenya, where he lived until the age of 28’ (Exclusive Interest Finding): D[74].
c. The Narrative Finding and the Exclusive Interest Finding were matters to which the Tribunal gave ‘some limited adverse weight’, and were considered cumulatively ‘together with other matters’ in the Tribunal’s ultimate assessment of the Applicant’s credibility: D[75] and D[79].
d. The Narrative Finding and/or the Exclusive Interest Finding were based on unexpressed, unsupported and stereotypical assumptions about human sexuality and the formation of the Applicant’s sexual identity: DAO16 v MBP (2018) 258 FCR 175 at [45]; Abboud v MIBP [2018] FCA 185 at [18]. As a result:
i. the Narrative Finding and/or the Exclusive Interest Finding were illogical or irrational, or relied on illogical or irrational reasoning; and/or
ii. the Tribunal’s reliance upon these assumptions caused it to fail to give real, genuine and proper consideration to the evidence and claims of the Applicant, including his evidence during the Tribunal hearing about his attraction to men in Kenya: see T7.16-T8.18; see also WAGO of 2002 v MIMIA [2002] FCAFC 437 at [51] and [54].
e. If the Tribunal had not made the errors pleaded at (d) above, there was a realistic possibility that it could have reached a different conclusion as to the Applicant’s credibility, and hence made a different decision on the review.
f. In the premises, the Tribunal’s decision was affected by jurisdictional error.
2.The decision of the Tribunal was affected by jurisdictional error because it impermissibly relied on illogical or irrational reasoning or misunderstood the Applicant’s claims and evidence or relied on unsupported assumptions which caused it to fail to lawfully consider the evidence before it.
Particulars
a. The Applicant claimed that he had deleted all text message correspondence between himself and the witnesses with whom he claimed he had had sexual relationships: D[59].
b. In its decision, the Tribunal observed that it ‘has difficulty accepting that if there was no intimate text message correspondence, there would be any need for the applicant to have deleted messages’ (Text Message Finding): D[61].
c. The Text Message Finding was considered cumulatively in the Tribunal’s ultimate assessment of the Applicant’s credibility: D[79].
d. The Text Message Finding was based on unsupported and unwarranted assumptions about the Applicant’s behaviour. As a result:
i.the Text Message Finding was illogical or irrational, or relied on illogical or irrational reasoning; and/or
ii.these unsupported and unwarranted assumptions prevented the Tribunal from lawfully considering the claims and evidence before it.
e. The Text Message Finding was premised on the assumption that there was ‘no’ intimate text message correspondence. This assumption was inconsistent with the Applicant’s evidence at hearing (CB 113.35-43; CB 118.18-30) and with the Tribunal’s prior summary of the Applicant’s evidence (D[59]-[60]). As a result, the Tribunal misunderstood, and hence failed to lawfully consider, the Applicant’s claims and evidence.
f. If the Tribunal had not made the errors pleaded at (d) and/or (e) above, there was a realistic possibility that it could have reached a different conclusion as to the Applicant’s credibility, and hence made a different decision on the review.
g. In the premises, the Tribunal’s decision was affected by jurisdictional error.
(As per original)
A transcript of the hearing before the Tribunal on 11 April 2023 was included in the Court Book.
Ground 1
With respect to the applicant’s first ground of review, the focus is the following finding made by the Tribunal at [74] of its decision:
74.… However, the totality of the applicant’s evidence does not provide a narrative of his youth, puberty an adult hood in Kenya, up until coming to Australia at the age of 28, that was overly persuasive in terms of confusion and conflict regarding his sexual identity and sexual interest in men, when sexual interest mostly develops during puberty, particularly given that he was living in a culture that reviles bisexuality and homosexuality. The Tribunal notes the applicant has had multiple relationships with women in Kenya and Australia but now indicates that he identifies as homosexual rather than bisexual. The Tribunal has some concerns about the applicant now having an exclusive interest in men, given that he stated that he only had a sexual interest in one male in Kenya, where he lived until the age of 28.
The applicant submitted (referencing the judgment of Jagot J in Abboud v Minister for Immigration and Border Protection [2018] FCA 185 (“Abboud”) at [18] and [21]) that, despite the acknowledgement of the complexity of issues and the need to avoid stereotypes prefacing the above finding, the Tribunal’s reasoning was nonetheless derived from stereotypes and unfounded assumptions.
The case of Abboud to which the applicant took the Court during the hearing before me, concerned an appeal from a decision of the then Federal Circuit Court of Australia (“the FCC”) dismissing an application for review of a decision of the Administrative Appeals Tribunal made in February 2017 which affirmed a decision of a delegate of the Minister not to grant the appellant a Partner (Temporary) (Class UK, Subclass 820) visa. The appellant in Abboud, who was female, applied for a partner visa on the basis that she married an Australian citizen in Australia in August 2014. The appellant’s husband, who was born in Lebanon, also arrived in Australia some years previously on a student visa. He later applied for a protection visa. According to the Tribunal, the husband was granted a protection visa based on his homosexuality and associated fear of persecution in Lebanon.
The Tribunal in Abboud had determined that the appellant and her husband were not, and never had been, in a “genuine, continuing and exclusive spousal relationship as envisaged by the Migration Act”. On the appeal from the then FCC, Jagot J allowed the appeal and found that the Tribunal miscarried in its reasoning as it failed to engage with the appellant’s claims on the basis of the material before it. Her Honour considered that the Tribunal’s process of reasoning involved “… assumptions, preconceptions or pre-judgements which prevented the Tribunal from engaging with the claims of the appellant and her sponsor that their marriage was and is genuine and the material which supported those claims (such as the child of the marriage). Further, these assumptions appear to be based on the premise about homosexual men in general, rather than the sponsor in particular” (at [15]).
Her Honour elaborated at [18] that the Tribunal, had treated its premise – that men are born and remain heterosexual, homosexual or genuinely bisexual so that a man born homosexual can never enter into a genuine relationship with a woman – as a universal truth applicable to all men, and as a result, could not engage in a meaningful way with the material before it.
The applicant submitted that in this case the Tribunal’s view that sexual identity ‘mostly develops during puberty’ and the Tribunal’s concerns that the applicant ‘now [has] an exclusive interest in men’ were formed by an assumption that sexual identity is fixed or immutable, manifesting at puberty.
The applicant submitted that the assumption that if he were truly homosexual he would have had a sexual interest in more than one man in Kenya before coming to Australia, was unfounded and speculative. Because the Tribunal emphasised and relied upon a stereotypical model of how sexual identity is formed – that is, emphasising self-described ‘sexual attraction’ and identity formation from puberty, rather than potential ways of expressing attraction or self-understanding – the applicant says the Tribunal disabled itself from engaging with the evidence, which was actually before it, in the same way as in Abboud (at [15]).
The applicant submitted that his formation of his sexual identity in a very different cultural and social context to Australia, did not need to display ‘conflict and confusion regarding his sexual identity and sexual interest in men’ at puberty to be credible, because sexual identity is not necessarily fixed or immutable from puberty onwards and because different individuals understand their sexual identities in different ways in different contexts.
The first respondent submitted that this case is not analogous to Abboud because firstly, the Tribunal made clear that the sixth reason for its decision was only given “limited adverse weight” and was not determinative of its adverse finding with respect to credibility.
The second reason the first respondent submitted Abboud is not analogous to this case is because during the Tribunal hearing the applicant gave no persuasive history consistent with his claim of having to “act straight” in Kenya, of yearning for men but being repressed and dating women to cover those desires. The first respondent submitted that in this case the Tribunal was not engaging in assessing the applicant against a general stereotype but rather assessing his claims in their own context and there is no error in that approach.
I accept the submissions made by the applicant for the following reasons. I will deal with the question of materiality separately.
I propose to firstly identify the material that was before the Tribunal relevant to this issue.
In the statement the applicant made in December 2021 as a part of his protection visa application, the applicant spoke of the first time he “remembered being attracted to a man” referring to a time in 2011 when he was around the age of 23-24 when he met a colleague named C. He stated (at [13]): “I thought C was handsome, and I wanted to hang out with him and be close to him. However, I thought this perspective on these feelings were wrong for me to have. So I never said anything to C, and I avoided dealing with my feelings. We just stayed friends”.
In the same statement, the applicant also said:
42.My sexual identity is complicated because I have been raised in Kenya which has strong homophobia and strong prejudice against any other form of sexuality, which is illegal.
43.In Kenya, you are required to reject and conceal any kind of sexual orientation which is not ‘straight’ to cope with the stigma.
44.This has meant that have for many years acted as ‘straight’ as I could in public and indeed for myself.
45.I still don’t feel comfortable disclosing my sexual orientation as anything other than straight to family, friends unless necessary, co-workers or members of the public. If I meet members of the LGBT community, I might feel more comfortable telling them, as they might have the same perspective as me. I will feel like I am on the right side of the community there.
The basis upon which the applicant claimed to fear persecution in his home country was because of his sexuality. The Tribunal noted at the outset of the decision “the applicant indicated at the beginning of the hearing, that he now identifies as homosexual as opposed to bisexual” [28]. The Decision records the Tribunal at the commencement of the hearing indicating to the applicant that “it would need to explore sensitive and intimate details of sexual activity and acknowledged the difficulty of giving this evidence and its personal nature” [30]. Quite clearly then, the evidence to be given by the applicant concerning his sexuality and development of his sexual identity, was evidence of considerable import.
At the hearing before the Tribunal on 11 April 2023, the questioning of the applicant by the Tribunal Member proceeded as follows:
Q: All right. So tell me about growing up and when it was that you felt – well, I will start by saying that I know from independent information that homosexuality is significantly not approved of in Kenya. So very socially – social adverse thing to be homosexual. So when was it when you were growing up and it was finally clear that you start – started to feel conflicted and not normal in your relation to your attraction to women and men? Describe for me how that transpired with your – with your (indistinct)?
A: I think it was a-a bit hard. When I first realised that is when I was walking to college. (Indistinct) and (indistinct words).
Q: So you were like in your early 20s at that point, won’t you?
A: Yes.
Q: So what you would that have been?
A: Same, 2011.
Q: So you are about 22 then?
A: Yes.
Q: And that was the same year that you started dating [a former partner of the applicant]?
A: Yes.
Q: What about puberty? From a, you know, biological perspective. Our sexual interest awakened at puberty from about the age of 13 years, so what were you going through at that point in time when sexual activity and interest started to awaken? Were you conflicted at that point?
A: Yes, I think I – at some point in Australia when (indistinct) may be (indistinct). I think I had thoughts about, you know, sometimes imagining things happened. Sometimes when I am alone, you know.
Q: And from what age would you start to have felt maybe you weren’t quite normal?
A: I can’t remember the time but
Q: You are at school? High school?
A: Around high school, yes.
Q: So was there a – your claim that there was this C who, when you are about 22, you are attracted to. And your claim is he made you gay, indicated that that was the one attraction you had for a man during your time in Kenya when you are 28, up to when you came to Australia. But were you attracted to boys at school when you are going through puberty?
A: It was more around-being close-you know, like, I had know that feeling of attraction but I can generally say I love – I love being close to boys and, you know, doing stuff with boys.
Q: All right. So it is during your school years. There wasn’t sexual attraction but there was a feeling of closeness that was an emotional attachment?
A: Yes. I think it was more of an attraction.
The excerpt of the transcript above shows the Tribunal asking both closed questions and suggestive or leading questions. The transcript shows the Tribunal prefacing the questions with several statements of facts and/or factual propositions as assumptions underlying the ultimate question. It would have to be said that the manner and form of the questioning by the Tribunal was not ideal practice.
On the face of the questioning, the ‘stereotypical model of the formation of sexual identity’ is given clear expression. The questioning of the applicant by the Tribunal member was contained within expressed assumptions. Those assumptions included:
·growing up feeling conflicted and not normal in relation to attraction to men and women;
·sexual interest develops during puberty from the age of 13;
·confusion and conflict regarding sexual identity and sexual interest in men mostly developed during puberty; and
·confusion and conflict regarding sexual interest and sexual identity would have been particularly prevalent given that the applicant was living in a culture that reviles bisexuality and homosexuality.
Based upon these assumptions, the Tribunal expected evidence from the applicant that during his youth, puberty and adulthood in Kenya there was confusion and conflict regarding his sexual identity and sexual interest in men, that there would be a period where he would feel not normal. This expectation assumed that sexual interest mostly develops during puberty. Further, the Tribunal observed that because the applicant was living in a culture that reviles bisexuality and homosexuality, it was particularly unusual that he did not provide evidence of conflict and confusion regarding his sexual identity.
Because the applicant did not provide the type of narrative expected by the Tribunal, the absence of that narrative was probative of the conclusion that the applicant had fabricated his homosexuality. It was through the lens of the above assumptions that the applicant’s evidence was viewed, assessed and determined as unsatisfactory or wanting because the Tribunal assessed the evidence not on its own terms but on what was expected.
I agree with the submissions of the applicant that the view that sexual identity ‘mostly develops during puberty’, and the Tribunal’s concerns that the applicant ‘now [has] an exclusive interest in men’, were informed by an assumption that sexual identity is fixed or immutable, manifesting at puberty.
In the same way that it cannot be said that the psychological reactions of a couple to the first sexual encounter are matters of common human experience, the psychological reactions of boys in their youth, puberty and adulthood are likely to vary widely, reflecting the wide range of human emotional attributes: BFH16 v Minister for Immigration and Border Protection (2020) 274 FCR 532 (“BFH16”) at [48].
Further, the assumptions made by the Tribunal about the expected confusion and conflict regarding sexual identity of the applicant, particularly in the cultural context of Kenya, could not be established without other evidence, perhaps psychological evidence: BFH16 [48].
I agree with the submissions of the applicant that the Tribunal’s stated concern about the applicant now having an exclusive interest in men given that he had only had a sexual interest in one male in Kenya before coming to Australia, is dependent upon an assumption about human sexual behaviour that to now have an exclusive interest in men would only be more likely if he had sexual interest in more than one male in Kenya.
I do not agree with the first respondent’s submission that the explanation proffered by the applicant when he was asked about sexual interest awakening at puberty from the age of 13 years was “entirely unpersuasive”. Despite the obvious difficulties with the transcript, when asked, the applicant agreed that he had been conflicted, and that he had thoughts about sometimes imagining things.
At the Tribunal hearing, the applicant gave an account of the formation of his sexual identity. When asked by the Tribunal from what age did he start to feel that maybe he was not quite ‘normal’, the applicant agreed that it was from around high school. The applicant went on to describe the feeling of closeness that he had to boys during school as “more of an attraction”, and described, in particular, his relationship with a named boy as “primal”.
The first respondent submitted that the Tribunal “made clear” that this sixth credibility issue was given “limited adverse weight” and was not determinative of its adverse findings with respect to credibility. This submission ignores, however, the statement from the Tribunal that the “adverse credibility findings are considered cumulatively together with other matters” [75].
Did the Tribunal’s error result in jurisdictional error?
On the question of materiality, the applicant pleads his case in the alternative. The applicant contends that the decision of the Tribunal was affected by jurisdictional error because it impermissibly relied upon illogical or irrational reasoning and/or relied upon unsupported and stereotypical assumptions which caused it to fail to lawfully consider the evidence before it.
In oral submissions, counsel for the applicant accepted that pleading that the findings of the Tribunal were illogical, or irrational cannot succeed in this Court following the Full Court’s judgement in Masi-Haini v Minister for Home Affairs [2023] FCAFC 126 (“Masi-Haini”). Counsel for the applicant contends that Masi-Haini was wrongly decided and the inclusion in the applicant’s pleading and submissions regarding illogicality or irrationality were only formal submissions in order to protect the applicant’s position in the event of an appeal.
The applicant characterises the Tribunal’s error as a reliance on unfounded assumptions which prevented it from engaging with the evidence before it – a form of error expressly distinguished from irrationality or illogicality by Jagot J in Abboud at [1], [15] and [26]. In other words, the unfounded assumptions led to a misunderstanding of the material before the Tribunal, which led in turn to a constructive failure to consider relevant material or claims. In making this submission, the applicant relies upon WAGO of2002vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437 at [54] and SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at [22].
In oral submissions, counsel for the applicant conceded there were other reasons which also formed part of the basis for the Tribunal’s conclusion that the applicant was not a credible or truthful witness and for its conclusion that he was not bisexual or homosexual. The applicant points out, however, that those concerns contributed to cumulative conclusions. The applicant took the Court to the decision of his Honour Justice Lee in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44] and [45] as follows:
44.It is not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness.
45.To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 23 [81]:
... decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
The applicant submitted that neither the Tribunal’s findings on credibility, nor the weight that the Tribunal gave to each of those findings, were inevitable. If not for all of the concerns on which the Tribunal relied in reaching the cumulative conclusion, even an integer to which it gave limited weight, it is argued the Tribunal could have given different weight to the remaining concerns and it could have reached a different view on whether the applicant was telling the truth about at least part of his claims.
I accept the applicant’s submission that the possibility of another outcome is heightened in this case by the nature of the relevant error – that the process of reasoning involving assumptions and stereotypes, the Tribunal failed to engage with evidence that was before it about the formation of the applicant’s sexual identity. At [79] of the Tribunal’s decision, the Tribunal says this:
Considering the cumulative impact of the credibility issues outlined, the Tribunal is not satisfied that the applicant is truthful is a truthful or credible witness and it cannot be satisfied as to the substantive claims as to his sexuality.
At [80] the Tribunal then states that it is not satisfied that the applicant is homosexual or bisexual.
The issue of the formation of the applicant’s sexual identity and his subsequent identification as homosexual or bisexual are critical matters to his claim. That finding by the Tribunal was a serious one with far-reaching consequences. Such a finding required a careful evaluation of the applicant’s evidence and an operative engagement with that evidence without being prefaced on stereotypical assumptions regarding the formation of sexual identity.
In the above circumstances I am satisfied that Ground 1 is made out and establishes jurisdictional error in the Tribunal’s decision.
Ground 2
Given my findings above, it is not strictly necessary to determine Ground 2. However, for completeness I will explain why no jurisdictional error has been found on the basis contended under that ground.
This ground concerns the fourth credibility finding and contends that the decision of the Tribunal was affected by jurisdictional error by failing to lawfully consider the evidence before it. The Tribunal found an ‘inconsistency’ and ‘disconnect’ in the applicant’s claims that he had deleted messages to and from BK and EK.
The Tribunal noted that it had questioned the applicant and EK and BK about whether the applicant had sent intimate messages to EK and BK. The Tribunal recorded that the applicant “initially indicated that he would not send messages that would disclose a relationship, but then indicated that he might say that he missed them”.
The Tribunal recorded that the applicant confirmed that he had deleted all communications between him and EK and BK. The Tribunal recorded that it asked the applicant why he would delete all communication if it was mostly not indicating a relationship. The applicant maintained that he wanted to be sure that his girlfriend did not suspect a relationship.
The Tribunal then concluded as follows [61]:
61.The Tribunal has difficulty accepting if there was no intimate text message correspondence, there would be any need for the applicant to have deleted messages. The Tribunal’s doubts as to the applicant sending anything intimate to either individual are reinforced by EK indicating that the applicant did not send him anything intimate or incriminating in regard to the relationship.
The applicant contends that the above findings were inconsistent with the applicant’s evidence at the Tribunal hearing (and with the Tribunal’s prior findings about that evidence) and were otherwise premised on two unsupported assumptions.
The evidence concerning the ‘text messages’ is as follows:
The exchange with EK was (Tx 20.28 – 20.35):
Did Mr K send you text messages that were intimate or would have potentially indicated your relationship? --- He would just talk to me face-to-face.
So no text messages? --- Yes.
So he didn’t send any text messages? --- Yes, because I was having a girlfriend and he didn’t want her to be-the girlfriend to see it.
The Tribunal then put to the applicant the evidence from EK. This is the exchange (Tx 22.29-22.37):
And also your evidence is that you sent him intimate messages that you were afraid that your girlfriend would see so you deleted them off your phone. But his evidence is that you never sent each other these messages? --- When I was (indistinct) before, I moved out, I (indistinct words) sometimes but if I can’t remember, I think there’ (indistinct).
You think you would have a text? --- Yes, true, a text message.
Well you previously indicated that you were concerned at those messages and you deleted them so your girlfriend wouldn’t see? --- Yes, that’s when I was living with Faith and at that time I was dating EK, I flirting.
But EKs’ evidence is that he never sent any intimate, or messages or other messages that would disclose the relationship? --- I don’t know (indistinct).
The exchange with BK was (Tx 27.23-27.41):
Did Mr K send you by text message any messages that could have disclosed that you were in a sexual relationship, or intimate relationship? --- Most of the time it wasn’t over texting, we would like-he would come around to my place sometimes and mostly like that. A bit of time also admitted his place. It was more of meetings more than communication.
Would you have any text messages that would suggest that you were in an intimate relationship from text messages that he sent to you? --- No, I would say no, I don’t think I have the messages.
Did you receive messages? --- Most of messages that we communicated were like hi, are you home, are you busy? I’m coming over to hang out with you.
So there was no text messages sent that would indicate an intimate relationship? --- I wouldn’t be sure about that.
All right, is that something that you can check from you messages? --- Yes, but I’ve changed my phone and everything, so I’m not sure they are there.
The Tribunal then put to the applicant the evidence from BK. This is the exchange (Tx 28.30-28.43):
MEMBER: So BK’s evidence was that you only-you didn’t send him text messages that would suggest an intimate relationship. He said at the very end he wasn’t sure about that, he doesn’t have the phone to check, but his initial evidence was that conversations were routine is possibly undermining your claims that you sent intimate text messages and had to delete them? --- What I would say is I don’t think like from that person explains no feelings (indistinct words) may be about I say yes, or something like that. But at that point I would say how each message as well that I sent to him, but I know at some point I will tell him I miss him, where he is? I will feel concerned. Maybe whenever I am not seeing him for days.
All right. So, you would say that you would miss him and you would think that’s potentially problematic if your girlfriend saw it, and you would delete those messages? --- Yes, of course.
The transcript reveals that at the hearing the legal representative for the applicant considered there may have been a misunderstanding between the applicant and BK and EK concerning whether there was a reference to having “any kind of text message conversation” with BK and EK, which was different to what he was being asked about whether “he sent intimate text messages to them”.
The Tribunal goes back to the issue with the following exchange (Tx 33.18-33.30):
MEMBER: All right. So I’ll just clarify that with you. So, in terms of the text messages that you deleted, you indicated today that you potentially sent a text message to BK that you missed him, was it only text messages that had some suggestion of intimacy that you would delete or would you delete all of your messages-all of your routine messages? --- I would delete all of the messages.
Why was that? --- Because at some point you never know what you need to delete and what you can keep, so it was better off to clear all the messages in that way.
But your evidence is that you did send some messages that could demonstrate an intimate relationship such as with BK? --- Yes.
The applicant submitted firstly, that at the Tribunal hearing he had not explained his feelings in his text messages but that he would mention that he missed BK, and that he thought it was potentially problematic if his girlfriend saw these messages. The applicant submitted that he subsequently clarified that it was not only messages which contained “some suggestion of intimacy” which he deleted, but all messages because “at some point you never know what you need to delete and what you can keep, so it was better off to clear all the messages in that way”.
The applicant points to his agreement as confirmation when asked again that he had sent some messages which could demonstrate an intimate relationship.
The applicant submitted that the Tribunal itself recorded that the applicant had said that he might say that he missed EK or BK in his messages and that messages of that kind could readily be understood as ‘intimate’. The applicant submitted that in its reasoning, the Tribunal progressed from the premise that the applicant’s communication was “mostly not indicating a relationship” to the premise that “there were no intimate text message correspondence” and points out that these are not the same thing and as such reveals that the Tribunal’s reasoning was based on a misunderstanding of the applicant’s claim and evidence.
I agree that the Tribunal progressed from the premise that the applicant’s communication was “mostly not indicating a relationship” to the premise that “there were no intimate text message correspondence” – however, as the first respondent points out, the final premise is prefaced by “if”. The Tribunal is not making a positive finding that there were no intimate text messages.
The applicant submitted that the Tribunal’s second unsupported assumption was a “curious and unfounded assumption” that the applicant would only ‘need’ to delete text message correspondence if those messages were ‘intimate’ in character. The applicant submitted that the question was not what the Tribunal would have inferred from those messages, but what the applicant thought that his girlfriend might have inferred from those messages: CZT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 819 at [68].
The applicant submitted that by assuming that the applicant would view the question of what might attract his girlfriend’s suspicions in the same way as the Tribunal did, the Tribunal relied on an unwarranted assumption without any basis in the material before it or otherwise engaged in mere speculation about matters beyond the scope of ordinary human experience and as such prevented itself from properly understanding or engaging in the applicant’s evidence about why he had deleted these messages.
The first respondent submitted that the second ground of review misconstrues the Tribunal’s findings. The first respondent submitted that the Tribunal’s concerns were not based on its subjective views about intimate text messages but, quite plainly, the evidence of the allegedly corroborative witnesses (which yet again was inconsistent with that of the applicant) and the paucity of the applicant’s explanation for why the alleged messages were deleted.
Having regard to the transcript and the content and form of the questioning by the Tribunal on this issue, I do hold a lingering concern that the witnesses did not fully appreciate what was being asked of them.
However, on the evidence available to it, as identified above, the evidence of the corroborative witnesses was inconsistent with that of the applicant. The view formed by the Tribunal was open to it.
CONCLUSION
Given that I have found that jurisdictional error is established by ground 1, the applicant succeeds in his application to this Court. A writ of certiorari will issue to quash the Tribunal decision and a writ of mandamus will issue to require the Tribunal to reconsider the review according to law.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Dated: 21 December 2023
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