Jaw-dropping. Astonishing. Incredible. Unbelievable.

There don’t seem to be any other words to describe the decision of the Administrative Appeals Tribunal in the case of Abboud v Minister for Immigration and Border Protection (2018) FCA 185 (2 March 2018).

This was a case involving an application for a partner visa, where the Tribunal had concluded that the sponsor and the applicant were not, and had never been, involved in a genuine, continuing and exclusive spousal relationship”.

The background of this case was that the applicant’s sponsor had originally arrived in Australia from Lebanon on a student visa.  He was then granted a protection visa on the basis of his homosexuality and associated fear of persecution if he were to return to Lebanon. 

The applicant had also arrived in Australia from Lebanon on a student visa. However, her application for a protection visa had been refused. She married her sponsor in 2014, after she had become close to him, they had lived together, and had run a retail business together for some time.  The applicant became pregnant in 2016, after the Department had refused her partner visa application.  The sponsor was identified as the child’s father in her birth certificate, the couple and the child continued to live together after the child’s birth, and the sponsor assisted his wife with the day-to-day upbringing of the child.

After an application for merits review had been lodged with the Tribunal, the Tribunal wrote to the applicant inviting comment on the following:

“If the sponsor is a homosexual man and has not told you, It is difficult to see how he can be committed to a genuine, ongoing and exclusive married relationship with you”; and

“It is difficult to see how the sponsor can have a commitment to his marriage to you when he has not told you about his homosexuality”; and

“There is also a genuine question in the Tribunal’s mind over whether the child of the marriage is the sponsor’s, given his sexual preferences, or even if it is his biological child, whether he has an ongoing commitment to her upbringing and ongoing care”.

The applicant’s sponsor replied to this correspondence from the Tribunal by letter which stated that the sponsor wished to keep his homosexual desires in the past, and that since meeting his wife he had fallen in love with her and had “reformed” (in the words of the solicitor’s letter).

The solicitor’s letter to the Tribunal went on to submit that past homosexual desires and subsequently entering into a genuine heterosexual relationship should not be viewed to be mutually exclusive.

Quite apparently, the Tribunal rejected this submission from the applicant’s solicitor.

Referring to its own characterisation of positions which in the Tribunal’s view have supposedly been espoused by the “gay rights movement”, the Tribunal adopted the approach  that men are either born heterosexual, homosexual, or “genuinely bisexual”,  the Tribunal concluded that men who are born homosexual can never enter into a genuine relationship with a woman. The Tribunal took this proposition to be a universal truth, applicable to all men.

Or, put another way, as described by the Court, the Tribunal took the view that only persons who are “born heterosexual” can enter into a genuine relationship with a person of the opposite sex, and that the only authentic relationship is one in which the person’s choice of partner “matches” the sexual identity that a person has “from birth”.

In short, the Tribunal’s analysis was that people who have identified as being homosexual at any point in their lives must have been born and must remain homosexual  and that if they later identify as heterosexual or have heterosexual desires or marry a woman and have children, they are necessarily inauthentic and the relationship can never be considered to be genuine.,

Justice Jagot of the Federal Court – in my opinion, quite correctly (!!!) - described this approach by the Tribunal as one that was affected by irrational and illogical reasoning, and one that was infected by jurisdictional error. 

The case is yet another demonstration that when the Tribunal proceeds on the basis of “moral presumptions” – in this case that a person who has at any point identified as homosexual can never be involved in a genuine heterosexual relationship, and cannot be considered to be a proper parent to children of the heterosexual relationship – it is proceeding on very perilous ground, or “thin ice”, and its decision is vulnerable to challenge.

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