CJD18 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 774

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CJD18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 774   

File number(s):

BRG 16 of 2024

Judgment of:

JUDGE EGAN

Date of judgment:

28 May 2025

Catchwords:

MIGRATION LAW – Where the Authority made findings contrary to the evidence before it – where no reasonable decision maker could have made such findings – where a different decision could have been arrived at had the Authority not erred – jurisdictional error established – application granted.   

Legislation:

Migration Act 1958 (Cth), s. 5H(1), s. 5J, s. 36(2)(a),

s. 36(2)(aa)

Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021, r. 22.02(2)(c)

Cases cited:

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Division:

Division 2 General Federal Law

Number of paragraphs:

25

Date of last submission/s:

11 March 2024

Date of hearing:

25 February 2025

Place:

Brisbane

Counsel for the Applicants:

Mr N. Poynder of Counsel

Solicitor for the Applicants:

Ramsden Lawyers

Counsel for the Respondents:

Mr D. Freeburn of Counsel

Solicitor for the Respondents:

Clayton Utz

ORDERS

BRG 16 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CJD18

First Applicant

CJH18

Second Applicant

CJE18

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

SECRETARY FOR THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	20 JUNE 2025

IT IS ORDERED THAT:

1.The name of the first respondent be changed to “Minister for Immigration and Citizenship”.

2.The Application for Extension of Time filed on 25 February 2025 be granted.

3.The Further Amended Application for Review filed on 25 February 2025 be granted.

4.A writ of mandamus issue directed to the Immigration Assessment Authority Administrative Review Tribunal requiring it to determine according to law the Applicants’ Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority Administrative Review Tribunal for re-determination.

5.For the purpose of the Immigration Assessment Authority Administrative Review Tribunal again re-determining the Applicants’ application, that it be constituted by a different member than the member of the Immigration Assessment Authority who handed down the decisions on 7 August 2023.

6.The First Respondent pay the Applicant’s costs of and incidental to the Application for Review, such costs to be as agreed between the parties, or failing agreement, as assessed pursuant to the provisions of Rule 22.02(2)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021.

AND IT IS NOTED THAT:

A.The Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021.

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 EGAN

Introduction

1. The applicants initially claimed that they were stateless Feyli Kurds, but later confirmed that they were Ahwazi Arab citizens of Iran. It was said that they were part of an Arab minority from Khuzestan province. [1]

   [1]           See Exhibit 1 – Court Book (CB) p. 1391 at para 6.

2. The applicants were unauthorized maritime arrivals, having arrived at Christmas Island on 10 January 2011. At the time of arrival, the male second applicant was seven years of age, and the female third applicant was five years of age.

3. After an earlier differently constituted Immigration Assessment Authority (the Authority) had affirmed the delegate’s decision to refuse to grant to the applicants Safe Haven Enterprise Visas (SHEVs), a Judge of this Court quashed that decision and remitted the matter to the Authority for re-determination.

4. On 7 July 2023, separate interviews were held by the Authority with the first applicant and the second applicant.

5. At [18] of its reasons dated 7 August 2023, the Authority found as follows:

   18. On 14 April 2023, the IAA received submissions and new evidence relating to new claims that the son (who is now 19 years old) was homosexual and fearing harm in Iran on that basis. The son and father also provided new information in regard to this claim in their separate interviews before the IAA held on 7 July 2023. The son provided a new statutory declaration, dated 14 April 2023, outlining these claims where he indicated that he realised he was homosexual when he was young, but he did not accept that he was homosexual until the beginning of 2021 and revealed this to someone else for the first time in mid-2021. In a subsequent statutory declaration submitted to the IAA dated 13 July 2023, after the IAA interview, the son provided information regarding his new claim to be homosexual, a claim that had not been raised before the delegate because he purportedly did not accept his sexuality until around 2021, years after the delegate’s decision. Also provided to the IAA after the IAA interview, were purported photos of the son with his current boyfriend. The son was fourteen years old at the time of the delegate’s decision, I am prepared to accept he may not have been able to disclose his purported sexuality at such a young age and he has indicated he was only able to do so for the first time in 2021. Given this, I am satisfied new information provided in relation to this claim from the son and father, including the photo evidence provided, could not have been provided to the delegate before his decision and s.473DD(b)(i) is met. On its face, information regarding this new claim and the photo evidence is capable of being believed and, had it been known, may have affected consideration of the applicants’ claims. Section 473DD(b)(ii) is met. In the circumstances, I am satisfied there are exceptional circumstances to justify considering this new information.

6. At [33] of its reasons, the Authority recorded the applicants’ claims for protection as follows:

   33. In new information provided at the IAA interview in July 2023, the father raised the following claims on his and his children’s behalf:

   •He is an Ahwazi Arab from Shush Daniel and he and his children are Iranian citizens.

   •They left Iran legally.

   •He previously claimed they were stateless Faili Kurds because he was scared as he is being sought by the Iranian authorities.

   •He faced persecution as an Ahwazi Arab. He has previously been detained on two occasions after being accused of being involved in political activities due to his Ahwazi Arab ethnicity. After arriving in Australia, he was issued three court summonses as he has been accused of being involved in political activities.

   •Although he did have problems with his wife and her family and they divorced, this was not the reason he left Iran and he does not have any fears in this regard.

   •He currently has no religion and fears harm in Iran on this basis.

   •He has a number of mental health conditions. These impact his memory.

   •He also fears harm for himself and his daughter as relatives of someone in a same-sex relationship.

7. At [36] – [37] of its reasons, the Authority set out the criterion for holding that a person is a refugee under s. 5H(1) of the Migration Act 1994 (Cth) (the Act), the basis on which Australia owed protection obligations under s. 36(2)(a) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.

8. At [48] – [56] of its reasons, the Authority set out in detail the reasons why it was not satisfied that the applicants would face a real chance of being harmed should they be returned to Iran based upon the lack of an adverse political profile of the first applicant.

9. At [78] – [87] of its reasons, the Authority set out its reasons for holding that it was not satisfied that the second applicant was a homosexual, or that he had lived in a same sex relationship.

10. Having so found, the Authority affirmed the decision of the delegate on the basis that Australia owed no protection obligations under s. 36(2)(a) of the Act, or complementary protection obligations under s. 36(2)(aa) of the Act.

    Grounds of Review

11. On 21 December 2023, the applicants filed an Originating Application for Review of the decision of the Authority seeking an extension of time for the bringing of the application. That application was filed some three (3) months out of time.

12. On 25 February 2025, the applicants filed a Further Amended Application for Review, the grounds of which were as follows:

    1.The second respondent (the Authority) made critical findings of fact that were both unsupported by the evidence and failed to take account of, or engage with, evidence and submissions provided by the applicants, such that the decision was seriously lacking in foundation, rationality, and logical coherence in a way that was legally unreasonable.

    Particulars

    (a) When at [55] of the decision, the Authority rejected the first applicant’s claims that he had attended protests and was detained twice and that he was issued with documents to attend court in Iran (the court documents), the Authority made the following errors:

    (i) The finding by the Authority at [50], that it was not plausible when he first arrived in Australia that the first applicant did not think he needed the court documents, failed to consider or take account of evidence that that the court documents were irrelevant to the false claim that the first applicant had then made, that he was a stateless Faili Kurd.

    (ii) The finding by the Authority at [51], rejecting the first applicant’s explanation for why he was “suddenly” issued the court documents in 2010, failed to consider or take account of evidence that the first applicant could not remember when he had been arrested, such that there was no rational basis upon which the Authority could find that the court documents were “suddenly” issued and, in addition, the finding was based on nothing more than speculation – with no reference to country information - about the workings of the Iranian courts and how long they take to issue summonses.

    (iii) The finding by the Authority at [52], that there appeared to be “no obvious connection” between the court documents “on their face”, failed to consider or take account of evidence that two of the court documents were in the same format and all had the same judicial crest, that each of the court documents had been signed by the same person, that each of the court documents referred to the same case number, that the court documents were in chronological order, approximately one month apart, with the third document in time being expressed in the more urgent tone of warning, and that the court documents each named the applicant and the warning notice

    included reference to his father.

    (iv) The finding by the Authority, at [52], that “there is no independent evidence of any legal action being taken” in relation to the court documents, was based on nothing more than speculation – with no reference to country information - about the workings of the Iranian courts in executing summonses.

    (v) The finding by the Authority at [54], that the first applicant had embellished aspects of his claims in a post-interview statement, was irrational and without any evidentiary basis, since there was no material difference between the relevant parts of the evidence in the interview and in the first applicant’s post-interview statement.

    (b) When at [87] of the decision the Authority found that the second applicant was not homosexual, the Authority made the following errors:

    (i) The finding by the Authority, at [79]-[80], that the second applicant was unable to expand on his written claim to be homosexual with much further detail at an interview with the Authority, was incorrect, since the second applicant was able to provide a great deal of further detail at this interview.

    (ii)The finding by the Authority of “inconsistencies” between the second applicant’s oral evidence in the interview and in his written evidence was unreasonable, in that such “inconsistencies” were either immaterial or not rationally inconsistent.

    Particulars

    (a) The Authority failed to make findings in relation to the claim that the first applicant and his daughter were separately at risk because of the second applicant’s homosexuality.

    (b) The Authority failed to make findings in relation to a claim by the applicants that a judgement of this Court published on 22 March 2023 had included the full names of the applicants, and that the website had continued to publish their names, such that the applicants would be identified by the authorities and in danger upon return to Iran.

13. Grounds 1(b) and 2(a) of the Further Amended Application for Review are related in that they concern questions arising out of the alleged homosexuality of the second applicant. As to Ground 1(b)(i) and (ii), it must be borne in mind that it was asserted in the preamble to the particulars of Ground 1, that the findings particularised in Ground 1(b) were findings which lacked any foundation, were irrational and illogical and therefore legally unreasonable.

14. In Ground 1(b), it was claimed that the Authority at [79] – [80] of its reasons had erred when it found that during the 7 July 2023 interview with the Authority, the second applicant had recited “ … much of what was said in his written claims in a general way but without much further detail.” It was claimed on behalf of the applicants that the second applicant had been able to provide “a great deal of further detail at this interview.” There is merit to such submission.

15. Paragraphs [78] – [80] inclusive of the reasons of the Authority were as follows:

    78. In a new written statement the son provided to the IAA in April 2023, he claimed that since the application for protection, he has realised that he is gay. He claims that he became aware he was different since he was a child whilst they were in Australian immigration detention. He said he did not feel like he could share these feelings with anyone so did not tell anyone. He claims that, as he got older, he still did not feel comfortable telling anyone about his sexuality as most people in his life and community were homophobic. He claimed he downloaded an application in early 2021 and started talking to other gay men via the application. In approximately mid-2021 he decided to tell his carer, at the refuge he lived in, that he was gay, and his carer was supportive. He claims, in September 2021 he met his first boyfriend. They made a video together and posted it on TikTok and other boys from his school found out and he was subject to bullying. After meeting his boyfriend, he decided to come out to his father and sister in late September 2021. He claims his father told him he did not care as long as he was happy. His sister was also supportive. He said he felt relieved at their reactions. He claimed the relationship with his boyfriend ended but he is in a new relationship with another man which he began after he moved to Queensland at the end of 2022.

    79. As previously noted, the son was interviewed by the IAA on 7 July 2023 in relation to these claims.

    80. During this interview, when asked about when he first realised he was gay, the son recited much of what was said in his written claims in a general way but without much further detail. Even taking into account his young age and background, and the sensitivities that can exist around issues of sexuality, given the significance of this realisation, one may reasonably expect a response of more substance. He did not appear nervous or concerned about discussing this sensitive topic so I am not satisfied the generality of evidence can be attributed to that either.

16. In the applicants’ Aide Memoire provided to Judge’s Chambers, and to the lawyers for the first respondent, on or about 6 March 2025, marked as Exhibit 3, submissions identifying those parts of the transcript of the 7 July 2023 interview, where detailed reference was made to the second applicant’s evidence going to his homosexuality, were helpfully provided to the Court for its consideration. Though criticism was made in a response from the lawyers for the first respondent as to the extent of the submissions so made, [2] no objection was made to the Court receiving such submissions.

    [2]           Exhibit 4.

17. Accepting that the reference to “Ground 2(b)(i)” as set out as a heading to paragraph 2 of the Aide Memoire was an error, and that it ought to have been a reference to “Ground 1(b)(i)” of the Further Amended Application filed on 25 February 2025, the Aide Memoire nonetheless sets out in clear detail those parts of the transcript which clearly recorded that the second applicant had in fact provided a great deal of additional detail about his homosexuality over and above what he had previously alluded to in his written statements. The transcript was annexure MCG-1 to the affidavit of Ms Gee filed on 3 February 2025.

18. Having read the excerpts of the transcript as set out in the Aide Memoire submissions at [2] – [23] thereof, and having read those submissions in the context of the whole of the transcript and the reasons of the Authority, the Court adopts as correct such submissions. For completeness, those submissions were as follows:

    Ground 2(b)(i) – Second applicant “unable to expand on his written claim to be homosexual”

    Claimed inability to expand 1: When the second applicant first realised he was gay

    2.        Evidence (emphasis added):

    (a)       Transcript at pp. 11-12 of 41:

    Facilitator: …You've touched on it a bit, but I just want you to first tell me about when you first realised that you were gay.

    Interviewee:     Okay, about when I was – so we were in a refuge camp, I was seven years old and I'm like this other boy, that was my neighbour, it was – it was something like Christmas Island, but it wasn't, it was in Adelaide, where the refugees go and there's houses there, it's like a little community. Basically there was a seven-year-old boy there and then that's when my, yeah, pretty much we kissed and all that stuff and then – then I forgot about it, because obviously yeah, I don't know, my – I wasn't – I was scared of telling my dad and stuff.

    (b)       Transcript at pp. 23-24 of 41:

    Interviewee:     Because I always – I don’t know how to say it. I knew I was attracted to guys. I guess I always knew. Because my school was an all-boys school. I don’t know, I guess I had a couple of guy crushes. That’s how I knew I liked guys. Then, I found out about Grindr. It was just – because Grindr is just – it was just – how do I say? Everyone on there’s basically LGBTQ, but on Instagram or whatever it is, you don’t know if they’re straight or whatever it is. It was just easy access to talking to other guys. That’s why I started using Grindr. Because it was just very easy to talk to other guys and actually experiment.

    Then, when I had sex for the first time, that’s when I knew, yeah, I was – I pretty much always knew, and then, I knew even more after I’d actually done it and everything. I was – I knew even more. I was more [certain] and everything. Because, at first, I was like, am I bisexual, or what am I? Then, after I met a guy or whatever it was, and all that stuff happened, that’s when I really knew.

    Facilitator: Why were you thinking at the time that you might be bisexual?

    Interviewee:     …Because I wasn’t really sure. I haven’t – I didn’t – I hadn’t had any relationships with guys or had any sex or anything with guys before that. I was very confused. Then, when I actually had sex for the first time, that’s when I realised I was gay.

    (c)       Statutory declaration at [3] (CB 472):

    I first began to become aware that I was different from other kids when I was a child living in a detention centre with my family. There was another young boy in the centre who I became close with, and we kissed.

    3.        Comment:

    The second applicant provides further detail about his first homosexual encounter, in recounting his specific age at the time (seven years old), and providing details about the other boy (that this other child was also seven years old and was his neighbour in the refuge camp in Adelaide). He later goes on to detail that, while he always knew he was attracted to men, he was certain of his sexuality after having had sex for the first time.

    Claimed inability to expand 2: First person he told he was gay

    4.        Evidence (emphasis added):

    (a)       Transcript at pp. 16-17 of 41:

    Facilitator:      Who was the first person you told that you were gay?

    Interviewee:     Probably my carer.

    Facilitator:      Who’s that?

    Interviewee:     His name is [Dan]. He was an Aussie guy and stuff, but he was very comforting. He was like, yeah, I have a lot of gay friends too, and all that stuff. He basically made me very comfortable and stuff to tell him. Out of nowhere, we were in the car, and he’s like, who you texting? I’m like, I’m texting this guy that I like. He’s like – yeah, he pretty much supported me and stuff. That felt very good, and that’s why I had more confidence pretty much.

    Facilitator:      When was that?

    Interviewee:     That was, I think, halfway through being in the refuge. I think when I was in the refuge for around four months, I told him.

    (b)       Statutory declaration at [8] (CB 473):

    I was very nervous to come out, and worried that I would lose my friends and other people in my life because of this, but it was very difficult for me to hide my sexuality. In approximately July or August 2021, I decided to tell Dan, the carer at the refuge I lived at, that I am gay. Dan was very supportive and comforted me, and told me about support for LGBTQ people in the community.

    5.        Comment:

    The second applicant provides further detail about the first person he told that he was gay. In the interview, the second applicant recounts where this conversation took place (in the car), the circumstances surrounding this conversation and what was said to comfort him at the time. He provides detail about how he felt during this conversation. 4.

    Claimed inability to expand 3: When he started his first homosexual relationship

    6.        Evidence (emphasis added):

    (a)       Transcript at pp. 12-13 of 41:

    Facilitator: Can you tell me about how you met your first boyfriend?

    Interviewee:     So you know the TikTok app?

    Facilitator:      Mm-hm, yeah.

    Interviewee:      Yeah, so he was on there, he was very famous and he had feminine features and I thought he was very pretty. So I decided to message him on Instagram and yeah, it was a whole three months of messaging and stuff, playing hard to get. Then on his birthday, I got him a real life-sized teddy bear, on the day of his birthday, that's when we first saw each other and I went over to his house and everything. Yeah, that's where it all pretty much started.

    (c)       Statutory declaration at [9] (CB 473):

    Then, in early September 2021, I met my first boyfriend. I had seen his TikTok account, and messaged him on Instagram. We chatted online for a few weeks, and then met up in person. He was very supportive and made me feel more comfortable with myself and my sexuality. He had many supportive friends and family members who did not care about his sexuality, and he helped me to feel confident to live my own life.

    7.        Comment:

    The second applicant provides further detail about how he and his first boyfriend met and started their relationship. He comments on why he was attracted to him, when and how they first met in person, and the circumstances of this first meeting.

    Claimed inability to expand 4: When he came out

    8.        Evidence (emphasis added):

    (a)       Transcript at p. 12-13 of 41:

    Interviewee:      Because my school, it's Belmore Boys, right, they were all Muslims and it was very – I couldn't come out in that kind of situation, I would have just got bullied, all that stuff. Then, at the start of my HSC exams, me and my first boyfriend, we posted TikToks and stuff, it went viral, right and I don't know how, one of the boys at my school saw it, right? He sent it to the whole group chat and everything and when I went to my HSC thing, I just got bullied and all that stuff, so yeah, that’s pretty much it.

    Facilitator: …So why did you post those TikToks when you were still at school and you were concerned about the boys in your school?

    Interviewee:      Because I didn't think they would find it. He only had like 130K followers and yeah, I didn't think, I don't know, I didn't think they would find it. Like I pretty much needed to come out, you know, I can't live my life as a lie, so I pretty much came out and I told my dad, listen I'm gay and I pretty much told everyone, so yeah.

    (b)       Transcript at p. 15 of 41:

    Facilitator:      So what were in the TikTok videos?

    Interviewee:      So pretty much it was – so you know how on TikToks when you make a video you can decide to put a song and all that stuff?

    Facilitator:      Mm-hm.

    Interviewee:     So we put a song about us needing each other in September and all that stuff and we're just lip sync to the song and just like, I don't know, I guess, you know how when couples they post their TikToks together, they be very adorable together and all that stuff?

    Facilitator:      Mm.

    Interviewee:     I guess it's like that, yeah. I guess it was like that.

    (c)       Statutory declaration at [10] (CB 473):

    My ex-boyfriend and I made a video together which we posted on TikTok. Other boys from my school saw this TikTok video and found out that I am gay. I experienced a lot of bullying as a result of this. People from my school made homophobic comments to me and used slurs about me. This made it more difficult for me to come out to more people, but my ex-boyfriend, and other people like Dan, gave me confidence.

    9.        Comment:

    The second applicant provides further detail about how he first came out to others. He explains what was in the TikTok videos that he made with his ex-boyfriend, how they were discovered by his classmates, and how they were shared within his school.

    Claimed inability to expand 5: When he came out to his father and sister

    10.      Evidence (emphasis added):

    (a)       Transcript at pp. 14-15 of 41:

    Interviewee:     I told my dad – when did I tell him? After we posted those TikToks because I sent it to him, I sent those TikToks to him on messages.

    Facilitator:      You sent the TikToks to your dad?

    Interviewee:      Yeah, basically telling him, this is my boyfriend, I'm gay and then I called him and I explained it more to him and all that stuff.

    Facilitator: …You told your dad by sending him those TikToks, is that what you said?

    Interviewee:      Yeah, pretty much and then I called him straight after I sent them to him.

    Facilitator:      Why did you decide to tell your dad in that way?

    Interviewee:      Oh because I don't know, it would be – because, I don't know, I felt like it would be awkward if I just called him and told him I'm gay, you know and all that stuff because I wanted him to see my boyfriend, me and my boyfriend being together and how happy we were and all that stuff I guess in the TikToks. Because yeah, if I just told him like that, he'd be like, oh stop talking nonsense or whatever it is, I don't know.

    I showed him those TikToks because in those TikToks it's like, how do I say it, it shows the honeymoon phase, you know the honeymoon phase of the – at the start of a relationship. It shows the honeymoon phase, us being – loving each other and all that stuff and that's why I sent him those TikToks, showing him us pretty much.

    (b)       Transcript at pp. 17-18 of 41:

    Facilitator: When you sent your dad those TikToks and then you called him, what did you say?

    Interviewee:      I said to him, I’m basically gay, and I have a boyfriend. I hope you can accept that. That’s pretty much what I said.

    Facilitator:      How did your dad react?

    Interviewee:      At first, he was in shock, but then he realised, I’m going to be like this for the rest of my life. Because I told him, I’m not ever going to get a girlfriend, I’m going to be like this for the rest of my life. When he realised that – when he came to that realisation, which is – because, at first, when he was shocked, it took him, what – three, four months when he actually started to accept it. Then, he fully accepted it when I moved up with him, because he saw that I would never change or anything. At first, he was shocked, wasn’t that used to it. Then, after four to five months, he was getting used to it. Then, when I moved up fully, that’s when he got fully used to it and realised that I wouldn’t – yeah, I would be gay for the rest of my life.

    Facilitator:In your statement, you said, after you told your dad about your sexuality, he told you that he didn’t care about this as long as you were happy.

    Interviewee:      That was after four months or something. But, at first, he was shocked. Then, afterwards, he came – he started to get used to it.

    Facilitator: How did you feel about his reaction?

    Interviewee:      [I don’t know]. When he was shocked, I got so mad at him. I was like – because – yeah, I was so mad at him and everything. I blocked him for two weeks, or a week and a half, and then I called him back. That’s when he realised – yeah, that’s when he – I don’t know really the timeline of all of that stuff, but I just found at first he was shocked and then, towards the end, he started getting used to it. Then, when I moved up there – up here – he fully accepted me and stuff and said, I don’t care, as long as you’re happy.

    Facilitator: …You said you were upset at your dad for his initial reaction. You blocked him. Then, you called him back? Is that what you’re saying?

    Interviewee:      Yeah. I called him back after a week and a half or two weeks.

    Facilitator: What did you say?

    Interviewee:      I said – I can’t really remember that well. I pretty much said to him, you know I’m going to be gay for the rest of my life. I don’t know exactly word for word what he said. It was such a long time ago. But – what did he say? Yeah, I was just telling – because he was just trying to convince me that it’s a phase. I was explaining to him, it’s not a phase. This is how I’m going to be forever. Yeah, it was – he just thought it was a phase, but then I – I told him, and then that’s when he started to recognise, it’s not a phase. After a couple of months. Then, when I fully moved up…

    (c)       Transcript at p. 23 of 41:

    Facilitator: You indicated in your statement that you had told your sister. When did you tell your sister about your sexuality?

    Interviewee:      I think before I told – I think I – around 17, when I started going on Grindr and all that stuff. Before I told my dad, I told her.

    Facilitator: How did she react?  

    Interviewee:      Yeah, she was accepting. She didn’t care. She was – yeah, she was accepting.

    Facilitator: Why did you decide to tell her then?

    Interviewee:      Because I knew she wouldn’t care at all, and she’s very comforting and all that stuff. She’s open minded. She grew up here, and open minded. I think my dad was the only one that wasn’t really that open minded, because the cultural beliefs and all that stuff. But I knew my sister wouldn’t care, so I felt like I told her.

    (d)       Statutory declaration at [10] (CB 473):

    Shortly after meeting my ex-boyfriend, I decided to come out to my dad and sister, in around late September 2021. I felt confident to do this because of his support. It had been difficult for me to hide this information, and I felt like I was living a lie. I cared about my relationship with my ex-boyfriend and finally felt like I did not care what other people thought about me.

    I was anxious about telling my family about my sexuality, but their reaction was better than I had feared it may be. Even though my father is from Iran, where gay people are not accepted, he told me that he did not care about this as long as I am happy. My sister was also supportive and said this does not matter to her and she still loves me. I felt relieved that their reactions were better than I had expected.

    10.      Comment:

    The second applicant provides further detail about when, how, and why he told both his father and his sister of his sexuality. He explains that he told his sister first as he knew she would be understanding. He explains that he told his father by sharing the TikTok videos he made with his ex-boyfriend, in order to show him that he was in a happy, homosexual relationship. The second applicant then explains that he spoke to his father over the phone about his sexuality. He describes his father’s feelings of shock, and the initial difficulty he had with accepting the second applicant’s sexuality. He describes how this made him feel at the time.

    Claimed inability to expand 6: Details of his first relationship

    11.      Evidence (emphasis added):

    (a)       Transcript at pp. 25-27 of 41:

    Interviewee:     My first one? Yep. He was living with his sister. Then, she kicked him out, and he moved into my place. Then, that’s when they said, you can’t 9.

    have your boyfriend here, we can’t have you here anymore. That’s when I called his sister and said, listen, can we please move back in? Then, obviously – [the sister] Mt Druitt very ghetto, bad area. They were all – all his siblings were scummy. She was overcharging for rent, like $400 every two weeks – sorry, every week, for both of us. That’s why it was very hard, and that’s when I decided to move up with my dad and just leave all that stress and trauma behind.

    …I was still in my refuge. I was still staying at my refuge. Yeah. So, when she kicked him out, he moved in with me. He was staying with me for around, let’s say, three weeks, two weeks and half. Then, they found out that he was there. They were like, listen, Mehdi, you can’t have him there. You have to move out in two weeks. That’s when I called my – his sister, after she kicked him out. I called his sister, like, listen, we have nowhere to go. Can we please move back in? We moved back in, and then after six or seven weeks, there was basically a fall-out, and I moved back to Gold Coast. We said we were going to try and do long distance, but it didn’t work. He cheated on me, and then I cheated on him. That’s pretty much it. We just broke up.

    Facilitator: Why did you just – if you were living with him at the time, why did you decide to move to Queensland?

    Interviewee:      Because he was very abusive.

    Facilitator:      Sorry, who was abusive?

    Interviewee:      Mikey. My first partner. Every time I’d come back from work, he would stay up all night and then [- yeah], was just very bad. He hit me with a baseball bat and broke a mop on my back. But I was just very delusional. Because obviously, first relationships. I loved him so much that I just decided to stay with him. Then, it just got to a point where there was so much – the verbal abuse, everything. We would fight every day. She had kids and stuff, and she would fight with us not to argue. That’s pretty much it, yeah. We’re just very – he was just very abusive, towards the end, because he had a lot of mental health issues, like bipolar. That’s when I decided just to move out. Sorry, I’m just a bit cold.

    Facilitator: Sorry about that. But you continued your relationship?

    Interviewee:      Yeah, because you know how first relationships are. First ever boyfriend. That gave me confidence to come out to my dad and gave me confidence to post that TikTok and everything. He was basically my inspiration and stuff. When we got towards the end, that’s when I realised, we’re not good for each other, we’ll never be good for each other. That’s when I called my dad. I was like, listen, [unclear]. He was like, yes, come up and work – because he’s been begging – he was begging me for a whole year to come up. Would call me every week saying, please come up, it’s not good down there. Just basically telling me the negatives. I didn’t listen to him, obviously, and I stayed down there. Then, there was a very bad situation, and then I’m [unclear].

    Facilitator: In your statement, when you talk about your relationship with Mikey, you said that, I felt that our time together was the best year of my life.

    Interviewee:      Yeah, at the start it was, but then towards the last six weeks, when we were living together, that’s when all the abuse and everything started. Because you don’t really know someone until you live with them. Towards – at the start, yes, it was amazing. It was so good. The start of it, the honeymoon phase, and then the middle, it was so good. We went to Luna Park. We did everything together. We would see each other all the time. We were madly in love. Then, towards the end, when we were living with his sister – I feel like his sister was third-partying in our relationship so much. It just basically effed us up.

    The last – when we were living together, the last seven to six weeks, that’s when it went downhill. Every day, fighting. Every day, abuse. I would go to work – also, he cheated on me when I was living with him in Sydney…

    (b)       Transcript at p. 28 of 41:

    Facilitator: Despite the abuse, you maintained your relationship with Mikey after you moved to Queensland. Is that what you’re saying?

    Interviewee:     Yeah. Because I loved him so much. He was exactly my type. I don’t know how to – yeah, that’s pretty much it.

    Facilitator:…Okay, because you didn’t mention any of that in your statement. You just said, I felt that our time together was the best year of my life. Then, in October 2022, I had to move to Queensland to live with my family.

    Interviewee:      Yeah, well it would be too long if I said everything. That’s why I was just trying to get the brief main points. That’s why in this interview, you ask me the questions, I would give you more details about that. I’m sorry about that. It was just – yeah.

    (c)       Statutory declaration at [13] (CB 473):

    My ex-boyfriend and I continued dating for over a year, and I moved in with him for around seven weeks in approximately September 2022. I felt that our time together was the best year of my life. Then, in approximately October 2022, I had to move to Queensland to live with my family. My ex-boyfriend and I tried to continue our relationship long distance, but unfortunately it did not work out, and we broke up.

    12.      Comment:

    The second applicant is able to provide extensive further information about his first relationship, and the eventual breakdown of same. He is able to explain how they came to live together, where they were living at the time, how much he was paying in rent and who they were living with. He then goes on to provide further information regarding the breakdown of the relationship, including issues surrounding infidelity and domestic violence.

    Ground 2(b)(ii) – Second applicant’s “inconsistencies” in evidence either immaterial or not rationally inconsistent

    Claimed inconsistency 1: When second applicant met first boyfriend:

    13.      Finding (at [82]):

    During the IAA interview the son first said he met his first boyfriend whilst in year 12 but then later said he met him after leaving school.

    14.      Evidence (emphasis added):

    (a)       Transcript at pp. 12-13 of 41:

    Interviewee:      So you know the TikTok app?...Yeah, so he was on there, he was very famous and he had feminine features and I thought he was very pretty. So I decided to message him on Instagram and yeah, it was a whole three months of messaging and stuff, playing hard to get. Then on his birthday, I got him a real life-sized teddy bear, on the day of his birthday, that's when we first saw each other and I went over to his house and everything. Yeah, that's where it all pretty much started.

    Facilitator:      So when was this?

    Interviewee:      This was at the start of last year Just as I got my hairdressing job...

    Interviewee:      This But yeah, we met around like last year 2021, December or September, yeah, on his birthday, September, that's when he – that's when we met. 2021, September... Then at the start of last year, February, that's when I got my hairdressing job, after two months of being together and posting those TikToks.

    (b)       Transcript at p. 14 of 41:

    Facilitator:      So when did you tell your dad?

    ...

    Interviewee: That was after we posted those TikToks, so just near – just like the last month or end of 2021, after being together with my boyfriend for like around two – a month or a month-and-a-half. I didn't tell him straight away, I told him a little bit after.

    c)        Statutory declaration at [9] (CB 473):

    Then, in early September 2021, I met my first boyfriend. I had seen his TikTok account and messaged him on Instagram. We chatted online for a few weeks and then met up in person.

    15.      Comment:

    The second applicant did say that he met his first boyfriend “at the start of last year”, which would have been the start of 2022, since the interview was on 7 July 2023. However, in context this error was immaterial, since he said repeatedly, in his statutory declaration and in the interview both before and after that comment, they had met in September 2021, which was on the boyfriend’s birthday. This was a particular date that the second applicant would be unlikely to forget.

    Claimed inconsistency 2: Feelings around “coming out”:

    16.      Finding (at [83]):

    In his written claims the son said that he had been very nervous to ‘come out’ and had attended an all-boys high school where the environment was homophobic, and he feared he would lose his friends if they found out he was gay. He then claims he and his first boyfriend made a TikTok video together which they posted on TikTok and the other boys from his school saw it and he experienced a lot of bullying, and this made it more difficult for him to ‘come out’ to more people but his boyfriend and carer gave him confidence. During the IAA interview he was asked why he posted those videos to TikTok if he was concerned about the boys in his school finding out about his sexuality. He responded that he did not think they would find out and his boyfriend had only 130,000 (TikTok) followers, but he then said he needed to ‘come out’. I note that is not an insubstantial number of TikTok followers. Further, his latter comment that he needed to ‘come out’ is also somewhat at odds with this written claim that he was not yet confident to ‘come out’ whilst at school.

    17.      Evidence (emphasis added):

    (a)       Statutory declaration (CB 472-473):

    6 I attended an all-boys' high school. This environment was particularly homophobic, and I also did not feel comfortable telling anyone at school about my sexuality. I feared that I would lose my friends if they found out I am gay, as I thought they were very homophobic and would not want to hang out with me if I came out. I did not want to lose my friends and so I kept this information hidden.

    7 However, I was beginning to accept that I am gay and it was very difficult for me to hide this. Around the start of 2021, I downloaded a dating app and started talking to other gay men for the first time.

    8 I was very nervous to come out, and worried that I would lose my friends and other people in my life because of this, but it was very difficult for me to hide my sexuality. In approximately July or August 2021, I decided to tell Dan, the carer at the refuge I lived at, that I am gay. Dan was very supportive and comforted me, and told me about support for LGBTQ people in the community.

    9 Then, in early September 2021, I met my first boyfriend. I had seen his TikTok account, and messaged him on Instagram. We chatted online for a few weeks, and then met up in person . He was very supportive and made me feel more comfortable with myself and my sexuality. He had many supportive friends and family members who did not care about his sexuality, and he helped me to feel confident to live my own life.

    10 My ex-boyfriend and I made a video together which we posted on TikTok . Other boys from my school saw this TikTok video and found out that I am gay. I experienced a lot of bullying as a result of this. People from my school made homophobic comments to me and used slurs about me . This made it more difficult for me to come out to more people, but my ex-boyfriend, and other people like Dan, gave me confidence.

    (b)       Transcript at p. 13 of 41:

    Facilitator: So why did you post those TikToks when you were still at school and you were concerned about the boys in your school?

    Interviewee:     Because I didn't think they would find it. He only had like 130K followers and yeah, I didn't think, I don't know, I didn't think they would find it. Like I pretty much needed to come out, you know, I can't live my life as a lie, so I pretty much came out and I told my dad, listen I'm gay and I pretty much told everyone, so yeah.

    18.      Comment:

    In context it is clear that, in his statutory declaration at in the interview, the second applicant was describing his progression over time, from being fearful of his school friends at the start of 2021, to telling “Dan” about his sexuality in July or August 2021 and receiving moral support. Then, in early September 2021 he met his first boyfriend who “made me feel more comfortable with myself and my sexuality...and...helped me to feel confident to live my own life”, and he made the TikTok video, which was posted two months after they met. By then, the second applicant “pretty much told everyone”, so it did not matter that the boyfriend had 130,000 followers.

    Claimed inconsistency 3: Father’s reaction to second applicant’s disclosure of sexuality:

    19.      Finding (at [84]) (emphasis added):

    In his written claims he said he was anxious about telling his family, but their reaction was better than he had feared, and his father told him that he did not care about this as long as the son was happy. However, during the IAA interview he said he said his father was in shock for several months and before he started to accept it but, when he moved to live with his father in the Gold Coast, he completely accepted it.

    ...

    Whilst there were some similarities between aspects of the father and son’s accounts, I am not convinced about the son’s explanations in regard to the above divergences between his written claims and his oral evidence on these matters, given the significance of his coming out.

    20.      Evidence (emphasis added):

    (a)       Statutory declaration 14 April 2023 (CB 473):

    11 Shortly after meeting my ex-boyfriend, I decided to come out to my dad and sister, in around late September 2021. I felt confident to do this because of his support. It had been difficult for me to hide this information, and I felt like I was living a lie. I cared about my relationship with my ex-boyfriend and finally felt like I did not care what other people thought about me.

    12 I was anxious about telling my family about my sexuality, but their reaction was better than I had feared it may be. Even though my father is from Iran, where gay people are not accepted, he told me that he did not care about this as long as I am happy. My sister was also supportive and said this does not matter to her and she still loves me. I felt relieved that their reactions were better than I had expected.

    13 My ex-boyfriend and I continued dating for over a year, and I moved in with him for around seven weeks in approximately September 2022. I felt that our time together was the best year of my life. Then, in approximately October 2022, I had to move to Queensland to live with my family. My ex-boyfriend and I tried to continue our relationship long distance, but unfortunately it did not work out, and we broke up.

    (b)       Statutory declaration 13 July 2023 (CB 1541-1542):

    2 I previously provided a statutory declaration dated 14 April 2023 to the IAA outlining my claims for protection based on my sexuality. This statutory declaration was intended to be a summary of my claims, and I provided more detail about these claims at my interview. I continue to rely on this statutory declaration and my claims made at interview.

    …

    4 In my previous statutory declaration, I explained that my dad's reaction when I told him that I am gay was better than I had feared it may be, and that he told me did not care about this as long as I am happy. This is an accurate summary, but at my IAA interview, I provided more details about his reaction.

    5 As I explained at my IAA interview, initially my dad was shocked when I came out to him. He is from a conservative culture in Iran that does not accept LGBTQI+ people. He initially told me that this was not real or may just be a phase. I felt relieved that I had been able to tell my father about this, but I was also hurt and angry about his reaction. I blocked his phone number for approximately two weeks, and then called him again. During this phone call, I explained that this is who I am, and I am not going to change.

    6 After this conversation, I felt that my dad slowly started to come to terms with this information over the next few months. He stopped trying to convince me that this was a phase, and after a few months told me that he does not care about this is long as I am happy.

    (c)       Transcript at pp. 14-17 of 41:

    Facilitator:      So when did you tell your dad?

    Interviewee:      I told my dad – when did I tell him? After we posted those TikToks because I sent it to him, I sent those TikToks to him on messages.

    ...

    Facilitator: You told your dad by sending him those TikToks, is that what you said?

    Interviewee:      Yeah, pretty much and then I called him straight after I sent them to him.

    Facilitator: Why did you decide to tell your dad in that way?

    Interviewee:      Oh because I don't know, it would be – because, I don't know, I felt like it would be awkward if I just called him and told him I'm gay, you know and all that stuff because I wanted him to see my boyfriend, me and my boyfriend being together and how happy we were and all that stuff I guess in the TikToks. Because yeah, if I just told him like that, he'd be like, oh stop talking nonsense or whatever it is, I don't know.

    I showed him those TikToks because in those TikToks it's like, how do I say it, it shows the honeymoon phase, you know the honeymoon phase of the – at the start of a relationship. It shows the honeymoon phase, us being – loving each other and all that stuff and that's why I sent him those TikToks, showing him us pretty much.

    ...

    Facilitator:      How did your dad react?

    Interviewee:     At first, he was in shock, but then he realised, I’m going to be like this for the rest of my life. Because I told him, I’m not ever going to get a girlfriend, I’m going to be like this for the rest of my life. When he realised that – when he came to that realisation, which is – because, at first, when he was shocked, it took him, what – three, four months when he actually started to accept it. Then, he fully accepted it when I moved up with him, because he saw that I would never change or anything. At first, he was shocked, wasn’t that used to it. Then, after four to five months, he was getting used to it. Then, when I moved up fully, that’s when he got fully used to it and realised that I wouldn’t – yeah, I would be gay for the rest of my life.

    Facilitator:In your statement, you said, after you told your dad about your sexuality, he told you that he didn’t care about this as long as you were happy.

    Interviewee:     That was after four months or something. But, at first, he was shocked. Then, afterwards, he came – he started to get used to it.

    21.      Comment:

    In his first statutory declaration at [12], the second applicant said, “I was anxious about telling my family about my sexuality, but their reaction was better than I had feared it may be”. He did not say, “I was anxious about telling my family about my sexuality, but their immediate reaction was better than I had feared it may be”. As he told the Authority in his subsequent statutory declaration, his first declaration “was intended to be a summary of my claims”. Read fairly and in context it is apparent that in the first declaration he abridged the sequence of events, moving from telling his father about his sexuality to his eventual relief about being accepted by his father. However, in his interview “I provided more details about his reaction”, including his father’s initial reaction, which was of shock and rejection then, over a period of months, acceptance. This is also evidenced by his reference, in the first statutory declaration, to his sister’s reaction, which could not have been immediate since he did not speak with her over the telephone on that first occasion.

    Claimed inconsistency 4: Description of relationship with first boyfriend:

    22.      Finding (at [85]):

    ...his oral description of this relationship at interview was vastly different to how he described it in his written statement...

    Evidence (emphasis added):

    (b)Statutory declaration (CB 473):

    13 My ex-boyfriend and I continued dating for over a year, and I moved in with him for around seven weeks in approximately September 2022. I felt that our time together was the best year of my life. Then, in approximately October 2022, I had to move to Queensland to live with my family . My ex-boyfriend and I tried to continue our relationship long distance, but unfortunately it did not work out, and we broke up.

    (c)Transcript at pp. 24-27 of 41:

    Facilitator:      When did you move in together?

    Interviewee:     At the last seven weeks of our relationship...

    ...

    Facilitator: Why did you just – if you were living with him at the time, why did you decide to move to Queensland?

    Interviewee:     Because he was very abusive.

    Facilitator:      Sorry, who was abusive?

    Interviewee:     Mikey. My first partner. Every time I’d come back from work, he would stay up all night and then [- yeah], was just very bad. He hit me with a baseball bat and broke a mop on my back. But I was just very delusional. Because obviously, first relationships. I loved him so much that I just decided to stay with him. Then, it just got to a point where there was so much – the verbal abuse, everything. We would fight every day....

    Facilitator:      Sorry about that. But you continued your relationship?

    Interviewee:     Yeah, because you know how first relationships are. First ever boyfriend. That gave me confidence to come out to my dad and gave me confidence to post that TikTok and everything. He was basically my inspiration and stuff. When we got towards the end, that’s when I realised, we’re not good for each other, we’ll never be good for each other. That’s when I called my dad. I was like, listen, [unclear]. He was like, yes, come up and work – because he’s been begging – he was begging me for a whole year to come up. Would call me every week saying, please come up, it’s not good down there. Just basically telling me the negatives. I didn’t listen to him, obviously, and I stayed down there. Then, there was a very bad situation, and then I’m [unclear].

    Facilitator: In your statement, when you talk about your relationship with Mikey, you said that, I felt that our time together was the best year of my life.

    Interviewee:     Yeah, at the start it was, but then towards the last six weeks, when we were living together, that’s when all the abuse and everything started. Because you don’t really know someone until you live with them. Towards – at the start, yes, it was amazing. It was so good. The start of it, the honeymoon phase, and then the middle, it was so good. We went to Luna Park. We did everything together. We would see each other all the time. We were madly in love. Then, towards the end, when we were living with his sister – I feel like his sister was third partying in our relationship so much. It just basically effed us up. The last – when we were living together, the last seven to six weeks, that’s when it went downhill. Every day, fighting. Every day, abuse...

    23.      Comment:

    Again, the first statutory declaration was no more than a summary of the second applicant’s claims. Paragraph 13 consists of six lines briefly summarising the entire 12 month relationship. In the interview the second applicant gave vastly more information about the relationship, including how they met through the Grindr app, how the second applicant was living in a refuge at the time while the boyfriend was living with his sister, how the sister kicked the boyfriend out and they lived together at the refuge for a couple of weeks before they were thrown out, and how they both moved in with the sister for the last six or seven weeks or so, and that this was the period when the relationship deteriorated. Read fairly and in context, there was nothing inconsistent between the second applicant describing the entire year that he was with the first boyfriend as the best year of his life, despite it not working out over the last six or seven weeks, as he said in his first statutory declaration.

1. The Court does not accept the submission made on behalf of the first respondent that the applicant was asking the Court for an impermissible merits review. The error on the part of the Authority was so substantial and inaccurate that it could not be said that there was a logical connection between the findings made by the Authority and the evidence which was before it. Having exercised caution when considering the findings of the Authority vis a vis the evidence given at the 7 July 2023 interview, the Court nonetheless holds that no reasonable decision maker who had properly assessed the second applicant’s evidence given during the course of the interview could have made the finding that the second applicant had not provided much further detail of his homosexuality during such interview. That is particularly so where the Authority inferentially impugned the credibility of the second applicant in so finding. [3]

   [3]           EVI19 v Minister for Immigration [2022] FCA 518 at [36].

2. As was found in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 per Kenny, Kerr, and Perry JJ at [30]:

   30.      The relevant principles can be summarised as follows.

   (1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review:  CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

   (2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

   135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   (Emphasis added)

   (3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].”Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”:  SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

   (4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

   56.An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error.  That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa.  Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

   (citations omitted)

   (5)A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review:  SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”:  CQG15 at [61].

3. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the Court at [32] – [36] found as follows:

   32. The issue on appeal concerns the second question: whether the error was material so as to constitute jurisdictional error. The starting point is the nature of the error. There was no submission that a breach of s 499(2A) of the Migration Actin failing to comply with Direction 90 was an error that was jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. The question was whether the decision that was in fact made by the Tribunal could, not would, "realistically" have been different had there been no error. The answer to that question, in this appeal, is to be determined from the face of the Tribunal's reasons.

   33. The error of the Tribunal was a breach by a statutory decision‑maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

   34. In this case, the Tribunal did not follow the required process of reasoning. In relation to para 8.1.1(1)(a), the unavoidable inference is that the Tribunal misunderstood the provision, the appellant's conduct, or both. In relation to para 8.1.1(1)(b), it is not possible to comprehend how the Tribunal made its findings.[41] In relation to para 8.1.1(1)(g), the Tribunal regarded the consideration as directly relevant when there was no evidence before the Tribunal showing that it did apply. There is no rational basis for the Tribunal's findings.

   35. Those aspects of the error, in the statutory context in which the decision was made, compel the finding that the evaluative conclusion reached by the Tribunal inthe exercise of the discretion under s 501CA(4) could have been different if there had been no error. Each particular of the error contributed to the evaluative and discretionary decision which the Tribunal made in that each bore on the Tribunal's assessment of Primary Consideration 1, and in that the Tribunal's assessment of Primary Consideration 1 weighed in favour of its exercise of discretion under s 501CA(4) not to revoke the cancellation of the appellant's visa. The Tribunal's error in its process of reasoning in these respects alone established that the error was material.

   36. It would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects. It follows that there is a possibility, not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred. The threshold of materiality was met. None of the facts before the Court provided a basis to consider that the outcome would inevitably have been the same had the error not been made. The error was jurisdictional. The curial relief sought by the appellant should be granted.

4. The Court finds that there was a possibility, not fanciful or improbable, that the decision of the Authority could have been different had the Authority not erred in finding that the second applicant had failed to adduce much further detail about his homosexuality.

5. The applicants put forward a claim that there was a real chance that they would suffer harm should they be returned to Iran because the second applicant was clearly homosexual, but the Authority did not actively intellectually engage with such argument.

6. The Court is satisfied that the findings of the Authority were legally unreasonable, and that such error was jurisdictional in nature. In the light of the Court’s findings, it is unnecessary to deal with the other Grounds of Review.

7. The decision of the Authority ought to be quashed, and it is so ordered.

8. The matter will be remitted to the Authority for re-consideration and determination.

9. The Court will hear the parties as to costs.  

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       28 May 2025