DAL20 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1228

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DAL20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1228

File number(s):

SYG 1586 of 2020

Judgment of:

JUDGE LAING

Date of judgment:

5 August 2025

Catchwords:

MIGRATION – Application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 in relying upon a finding that the applicant would express his sexuality and relationships in a “discreet manner” unlikely to draw the adverse attention of the authorities – writs issued

Legislation:

Migration Act 1958 (Cth) s 36

Cases cited:

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473

BEH15 v Minister for Home Affairs [2019] FCAFC 184

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

XFCS v Minister for Home Affairs [2020] FCAFC 140

Division:

General

Number of paragraphs:

28

Date of hearing:

27 May 2025

Place:

Sydney

Solicitor for the Applicant:

Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the First Respondent:

Ms S McGee

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1586 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DAL20

Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LAING
DATE OF ORDER:	5 AUGUST 2025

THE COURT ORDERS THAT:

1.A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 4 June 2020.

2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. The applicant seeks judicial review of a decision made by the Administrative Appeal Tribunal (Tribunal) (as it was). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

2. For the following reasons, writs will issue quashing the Tribunal’s decision and remitting the matter to the Administrative Review Tribunal (the Tribunal’s successor) for redetermination according to law.

   BACKGROUND

3. On 8 November 2015, the applicant applied for a protection visa.

4. The Delegate refused the application on 24 October 2016.

5. On 15 November 2016, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before the Tribunal on 5 April 2019.

6. On 4 June 2020, the Tribunal affirmed the Delegate’s decision not to grant the applicant’s protection visa application.

   THE TRIBUNAL’S DECISION

7. The Tribunal made the following findings concerning the applicant’s protection claims:

   (a)The Tribunal accepted that the applicant was a national of Sri Lanka (at [23]).

   (b)The Tribunal accepted that it was plausible that the applicant’s ex-wife’s family were in conflict with the applicant regarding a custody dispute and property settlements (at [72]).

   (c)The Tribunal accepted that the ex-wife’s family may be members of the United National Party (UNP). However, the Tribunal did not accept that her family had sufficient political influence to use the UNP or the authorities to threaten or harm the applicant upon return to Sri Lanka (at [73]).

   (d)The Tribunal did not accept that the applicant was threatened by his ex-wife’s family when in Sri Lanka (at [74]).

   (e)The Tribunal found the applicant’s late claim that the family were threatening him in relation to property not to be credible and considered that, in any event, any dispute over property could be resolved by settlement (at [76]).

   (f)The Tribunal did not accept that the applicant’s mother moved due to claimed threats (at [77]).

   (g)The Tribunal did not accept that the applicant or any member of his family would be targeted by the authorities due to his connection to his ex-wife’s family, because he is bisexual or on any other basis (at [78]).

   (h)The Tribunal found that the applicant’s fear of persecution from his ex-wife’s family, the UNP and/or the authorities was not genuinely held (at [79]).

   (i)The Tribunal did not accept that the applicant faced a real chance of relevant harm due to a dispute with his ex-wife or her family, their links to the UNP or his prior history of same-sex relationships (at [79] and [149]).

   (j)The Tribunal accepted that the applicant was bisexual and that he had engaged in same-sex relationships in Sri Lanka (at [100]).

   (k)The Tribunal accepted that such sexual activity was illegal in Sri Lanka (at [100]).

   (l)However, the Tribunal did not accept that there was a real chance that the applicant would be seriously harmed on return to Sri Lanka due to his sexuality or his previous same-sex relationships (at [101]).

   (m)The Tribunal did not accept that the ex-wife’s family would report the applicant to the authorities. It did not accept that, if they did, the authorities would act on the reports, given the passage of time and country information suggesting that prosecutions were rare (at [101]).

   (n)The Tribunal found that the applicant’s claimed fears of persecution by his wife’s family were not genuinely held (at [102]).

   (o)The Tribunal found that if the applicant returned to Sri Lanka, he would continue maintaining privacy and discretion regarding his sexual relationships, which would be unlikely to draw adverse attention from the authorities (at [104]).

   (p)The Tribunal found that the applicant would not engage in LGBTI advocacy or community activities which might bring him to the attention of the authorities (at [104]).

   (q)The Tribunal concluded that the applicant did not face a real chance of relevant harm on the basis of his sexuality from his ex-wife’s family, the UNP or the authorities (at [106] and [149]).

   (r)Although the Tribunal accepted that the applicant may have health conditions requiring treatment, the Tribunal did not accept that there was a real chance that he would be denied treatment or subjected to adverse treatment in health services so that he would not receive the treatment that he required (at [117]).

   (s)The Tribunal did not accept that the applicant faced a real risk of significant harm due to his medical issues (at [149]).

   (t)Although the Tribunal accepted that the applicant did not wish to be separated from his children and would suffer emotionally due to increased separation from them, the Tribunal did not accept this met the criteria for protection (at [128]-[129] and [149]).

   (u)The Tribunal did not accept that there was a real chance of the applicant facing serious or significant harm in Sri Lanka as a failed asylum seeker from a Western country (at [136] and [149]).

8. The Tribunal concluded that the applicant was unable to meet the criteria for protection under either ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). Accordingly, the Tribunal affirmed the Delegate’s decision (at [141]-[153]).

   APPLICATION FOR REVIEW

9. The applicant sought judicial review of the Tribunal’s decision through an application filed on 1 July 2020. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing.

10. The applicant ultimately pressed the following sole ground of review:

    1.The Second Respondent constructively failed to exercise its jurisdiction to review the decision before it, by reason of its failure to ask the right question, and or by its misinterpretation of the applicable law, and or by its failure to deal with the Applicant's claims before it, when determining Applicant's application for review.

    Particulars:

    (a)The Applicant had claimed, and it was accepted by the Tribunal, that he is bisexual and that he is a national of Sri Lanka. He claimed that he did not engage with the LGBT community or have any same-sex relationships out of a fear of being found out. He also claimed that he feared being targeted by the authorities and feared suffering discrimination by the community due to his bisexuality becoming known. He also made a narrower claim that his former spouse's family would persecute him, and that his bisexuality was a motivating factor for the feared harm from her family.

    (i)The Tribunal failed to determine the Applicant's claim that he was discreet in relation to his sexual orientation because of his fear of harm from the authorities and the community because of his sexual orientation.

    (ii)The Tribunal, in determining whether the Applicant was a person entitled to Australia's protection, erroneously used as the starting point of its enquiry that the Applicant was discreet in relation to his sexual orientation. By so doing, the Tribunal failed to ask the right question and misinterpreted the applicable law, in the context of the Applicant's case before it, which was why he was discreet in relation to his sexual orientation, and what was likely to happen to him and why, because of his sexual orientation, should he return to Sri Lanka.

    (iii)The Tribunal therefore failed to conduct the review required by the Act, such that its decision is infected with jurisdictional error.

11. The applicant observed that he had claimed to be bisexual. He had claimed that he had engaged in same-sex relationships in Sri Lanka (CB 119, 180 and 199-200 [80]). The Delegate’s decision records the applicant as having claimed that (at least in Australia) he “did not engage with the LGBT community or have any same sex relationships out of fear of being found out” (CB 119). It also records the applicant as having claimed that he “fears he may also be targeted by the authorities and experience discrimination by the community due to his bisexuality becoming known, resulting in the loss of any support from friends and family and being charged and imprisoned” on account of “his previous same-sex relationships, as homosexuality is illegal in Sri Lanka” (CB 119).

12. At [88]-[94], the Tribunal had regard to country information indicating, inter alia, that although prosecutions regarding sexual orientation were rare, LGBTI members were “harassed, discriminated against, and assaulted with impunity by the authorities”. Information regarding discrimination and abuse more generally was also considered. The applicant drew attention to additional information in the Department of Foreign Affairs and Trade (DFAT) report considered by the Tribunal regarding obstacles faced by “openly-gay couples” in relation to securing housing and accommodation, with this and other discrimination said to cause “many homosexual persons [to] seek to conceal their sexual orientation” (3.149 of the DFAT report). Attention was further drawn to 3.151 of the report, which referred to “many LGBTI individuals… hid[ing] their identity to avoid harassment”.

13. The Tribunal reasoned as follows at [100]-[106]:

    100. The Tribunal accepts the applicant is bisexual and has engaged in same sex relationships in Sri Lanka. There were inconsistencies in the applicant’s evidence about when he had been involved in same sex relationships, having told the Department he had not been involved in same sex relationships since he married and later suggesting to the Tribunal he had been involved in same sex encounters in 2005 and 2006. The Tribunal accepts this may have arisen from a confusion regarding references to ‘partners’ as equating with more serious relationships and others as casual sexual encounters. Giving the applicant the benefit of any doubt, the Tribunal accepts the applicant may have had casual same sex encounters in Sri Lanka in 2005 and 2006. The Tribunal also accepts he may have had sexual encounters in 2010 but has not engaged in same sex encounters since that time. The Tribunal also accepts that consensual same sex activity is illegal in Sri Lanka.

    101. However, the Tribunal does not accept on the evidence that there is a real chance the applicant would be seriously harmed on return to Sri Lanka based on his bisexuality or his previous same sex relationships. On the applicant’s own evidence, he was active as a bisexual man in Sri Lanka from the age of 14 and did not come to the adverse attention of authorities on that basis while in Sri Lanka. He did not claim to have come to the attention of authorities since, but claimed his wife’s family may report him to the authorities. For the reasons detailed above, the Tribunal does not accept that they would. Further, and in any event the Tribunal does not accept that, if they did, the authorities would act on such reports given the time that has passed since the alleged offence and country information suggesting such prosecutions are rare.

    102. The Tribunal accepts the applicant desires to keep his sexuality private, however, the Tribunal finds that on the evidence, the applicant’s fears of persecution by his wife’s family are not genuinely held. Based on the delay in seeking protection and the failure to articulate any fear of harm on this basis over an 8 year period of interaction with the immigration system, the Tribunal does not regard it as credible that the applicant came to Australia due to fear of harm on that basis or that he feared harm on that basis as a result of threats commencing in 2010.

    103. In any event, the harm the applicant points to as evidence of likely harm in the foreseeable future are telephone threats made to his mother, which have never been acted upon and his wife divulging details of his sexuality to his friends and family. As his family and friends are now aware of this information, it is not clear how further harm could be caused to the applicant on this basis.

    104. The Tribunal finds that if the applicant were to return to Sri Lanka, he would continue to maintain privacy regarding his sexuality and engage in sexual relationships or encounters in a discreet manner, which is unlikely to draw the adverse attention of authorities. In this regard, the Tribunal notes the applicant has not engaged in LGBTI advocacy or community activities which might bring him to the attention to the authorities. He did not express any intention to do so in the future and the Tribunal finds that he would not do so.

    105. The applicant was not arrested or detained when previously living in Sri Lanka. He has been able to study, work and conduct relationships without suffering serious harm. The Tribunal does not consider, given the DFAT country information, including the latest report which does not note any change to the way in which bisexuals are treated, that the circumstances have changed significantly since the applicant was last in Sri Lanka.

    106. Based on the evidence, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm in the foreseeable future on the basis of his bisexuality or historical same sex relationships from his ex-wife’s family, the UNP or Sri Lankan authorities.

14. The applicant submitted that the Tribunal failed to determine his claim that he kept his sexual orientation secret because of his fear of harm from the authorities and the community. The element of fear was submitted to have been a critical element of his claim, with the failure to address it meaning that the Tribunal failed to determine a claim on that basis. It was submitted that this resulted in jurisdictional error.

15. Further, and relatedly, the applicant submitted that the Tribunal erroneously used as the starting point of its enquiry that the applicant was discreet in relation to his sexual orientation, essentially looking at what he did to avoid persecution resulting from his sexual orientation. It was submitted that the Tribunal therefore failed to determine whether the fear of harm was well-founded, or if he faced a real chance of relevant harm because of his sexual orientation (and not by what he did to avoid persecution). It was submitted that the Tribunal thereby fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395).

16. In Appellant S395, it was found that the Refugee Review Tribunal (RRT) erred in relying upon an expectation that the appellants would act discreetly regarding their sexuality in finding that they did not meet the criteria for protection. The RRT failed to consider whether acting discreetly “was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly” (Appellant S395 at [35]). At [43], McHugh and Kirby JJ reasoned:

    43The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

17. At [87]-[88], Gummow and Hayne JJ considered:

    87The primary judge³⁷ and the Full Court³⁸ understood the Tribunal as finding that "[i]t is only if a homosexual couple force Bangladeshi society to confront their homosexual identity that they will encounter problems". That may be accepted. Both the primary judge³⁹ and the Full Court⁴⁰ held further, however, that the finding about how the appellants were likely to live on their return to Bangladesh supported the Tribunal's finding that the appellants' fears of persecution were not well founded. That is, the primary judge and the Full Court both read the Tribunal's reasons as finding that the appellants were likely to live in a way that would not cause Bangladeshi society to confront their homosexual identity.

    88This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live "discreetly". It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to "live openly as a homosexual in Bangladesh"; secondly, that "[t]o attempt to [live openly] would mean to face problems"; and, thirdly, that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet". Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants' fears well founded. All that was said was that they would live discreetly.

1. The Minister acknowledged that it was well established that the Tribunal must respond, by making findings, to a “substantial, clearly articulated argument relying on established facts”: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at 1092 [24] (Gummow and Callinan JJ). The Minister accepted that a material submission advanced to the Tribunal cannot be ignored: XFCS v Minister for Home Affairs [2020] FCAFC 140 at [21] (Moshinsky, SC Derrington and Colvin JJ). The Minister also accepted that the Tribunal was required to construe correctly and consider claims, and their component integers, made by an applicant or otherwise apparent on the material before the decision-maker: BEH15 v Minister for Home Affairs [2019] FCAFC 184 at [79] (Rangiah, Perry and Bromwich JJ).

2. However, the Minister submitted that the claim recorded in the Delegate’s decision to have not engaged with the LGBTI community or engaged in same-sex relationships concerned the applicant’s situation in Australia. The Minister submitted that the claim was not that the applicant had feared being found out and subjected to persecution in Sri Lanka, but that he was afraid of the information being used against him by his wife in family law proceedings concerning custody of his children. This, the Minister submitted, had been clarified before the Tribunal, with the applicant stating that he had told his wife about his same-sex encounters prior to their marriage, but had not disclosed his further same-sex encounters in Australia to her because he did not want her to “have this evidence” in the family law proceeding (at [84]-[87]).

3. Even if the reference in the Delegate’s decision to the applicant’s “fear of being found out” if he engaged with the LGBTI community or in same-sex relationships was a reference to the applicant’s situation in Australia, it is clear enough that the applicant claimed to fear his bisexuality being discovered in Sri Lanka. The Delegate’s decision at CB 119 also records the applicant claiming that he “fear[ed] he may also be targeted by the authorities and experience discrimination by the community due to his bisexuality becoming known, resulting in the loss of any support from friends and family and being charged and imprisoned though his previous same-sex relationships, as homosexuality is illegal in Sri Lanka”. The applicant also referred to fearing being “killed, harassed, discriminated against or targeted” if he continued with his custody battle for reasons including the community and government learning of his bisexuality. In response to an invitation to provide information regarding bombings in 2019, the applicant expressed that “I will face [severe] difficulty due to me been a gay and by-sexual in Sri Lanka at this situation” and that “if this kind of attack happened places like my kind of people gathering (we are soft targets) would be a disaster since we treat like different to other communities in Sri Lanka” (at CB 180).

4. The applicant’s references to modifying his behaviour due to a “fear of being found out” appear to have reflected, at least potentially, the applicant’s articulated concerns regarding the custody battle as well as the applicant’s articulated fears of “his bisexuality becoming known” more generally in Sri Lanka. The applicant’s claims regarding the custody battle in this regard were, clearly enough, linked to the applicant’s claims of what may happen to him in Sri Lanka. However, the applicant’s claimed fear of being identified as bisexual was not limited to the situation regarding his ex-wife or her family.

5. The Minister submitted that the Tribunal dealt with the applicant’s claimed fear of being targeted and discriminated against due to his bisexuality being known in Sri Lanka in two ways. The first was by rejecting, on the basis of credibility findings, that the applicant held such fears. The second was by finding, on the basis of country information, that any such discrimination he may face would not amount to a real chance of persecution.

6. However, the Tribunal made no clear finding that the applicant held no well-founded fear of being targeted or discriminated against if his bisexuality, due to open practice in the future, were to become known in Sri Lanka. Such a finding was not made through the Tribunal’s finding at [102] that the applicant’s fears of persecution by his ex-wife’s family were “not genuinely held”, or that he had not come to Australia due to a fear of harm on the basis claimed. I also do not accept that it was made at [96], where the Tribunal recorded putting to the applicant that societal pressures to remain discreet “may” be regarded as insufficiently detrimental to amount to persecution. Although the Tribunal considered that the applicant did not wish to be open “due to the shame it may bring onto his family, as well as his previous belief it would affect his custody case”, this did not grapple with or exclude the possibility of a well-founded fear of persecution being another motivating factor for the applicant’s future exercise of “discretion”.

7. At [98], the Tribunal recorded that it had “put to the applicant that country information suggested that even if [his sexuality] were to become publicly known, the discrimination he may face does not amount to persecution”. However, this did not amount to a finding that the applicant would not face relevant harm if his bisexuality were publicly known due to his open engagement in same-sex relationships in Sri Lanka. Although the Tribunal at [101] did not accept that the authorities would act on reports from his ex-wife’s family, this was expressed to be “given the time that has passed since the alleged offence” as well as “country information suggesting such prosecutions are rare”. This did not answer whether, if the applicant were to openly engage in future same-sex relationships in Sri Lanka, he may face persecution (or had a well-founded fear of this occurring).

8. The Tribunal’s finding that the applicant did not face a real chance of serious harm, therefore, depended upon its finding that the applicant, following return to Sri Lanka, “would continue to maintain privacy regarding his sexuality and engage in sexual relationships or encounters in a discreet manner, which is unlikely to draw the adverse attention of authorities” (at [104]). As in Appellant S395, the Tribunal did not grapple with or determine whether acting discreetly “was a voluntary choice uninfluenced by the fear of harm if [he] did not live discreetly”. It did not grapple with or determine “whether the modified conduct was influenced by the threat of harm”. It therefore did not determine whether “the threat of serious harm with its menacing implications” constituted persecutory conduct.

9. I therefore accept the applicant’s submission that the Tribunal fell into the species of error considered in Appellant S395. Jurisdictional error has been established on this basis.

   CONCLUSION

10. For the above reasons, the decision of the Tribunal will be quashed. The matter will be remitted to the Administrative Review Tribunal to be reconsidered and determined according to law.

11. I will hear from the parties in relation to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated:       5 August 2025