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Incredibly Bad Decision of AAT Concerning Proof of Homosexuality Overturned by Full Court

Wow. Just plain wow.

Here’s the story of a decision by the AAT that was so unbelievably bad that it’s hard to believe it could ever have been made. But It was. The decision was so shockingly bad that it is enough to make a reader turn “white as a ghost” from total shock and amazement.

And yet: this decision was not overturned until the case reached the Full Court.

This incredible case was just handed down on 15 January 2018: DAO16 v Minister for Immigration and Border Protection (2018) FCAFC 2 (Justices Kenny, Herr and Perry).

The background of the case was that the applicant, a citizen of India and a member of the Sikh religion, had sought a Protection visa on the basis that he would be at risk of harm due to his homosexuality if he were to be required to return to India.

Amazingly enough, in view of the evidence, the Department and the Tribunal did not accept that the applicant was in fact homosexual, and therefore rejected his claim to fear a real risk of significant harm.

In fact, the Tribunal made the following (absolutely astonishing) statement in its decision record:

“The Tribunal considers that the circumstance surrounding the lodgment of the application, and the evidence provided to support his claims to be homosexual, are indicative of the fact that he has contrived evidence in an attempt to establish that he is homosexual. The Tribunal accepts that the applicant may have attended gay clubs and parties and a dinner party in June 2011 with homosexual men and to have had some sexual experiences with men. The Tribunal does not accept that the applicant’s preparedness to engage in some sexual experiences with men establishes that he is homosexual or that he will pursue a homosexual lifestyle upon his return to India”. (emphasis added).

What? Really?

Not shocked yet?

What about this passage:

“the Tribunal has accepted, as stated above, that the applicant may have been prepared to participate in homosexual relations of some kind to support his applications for Protection. The Tribunal has not accepted that this establishes that the applicant is homosexual.  The Tribunal considers….that it establishes only that this applicant is prepared to do whatever he considers necessary to assist him to obtain a permanent visa to remain in Australia.”

Still not shocked and appalled?

How about the fact that the Tribunal refused to accept the following evidence offered by the applicant to establish that he is homosexual:

  • Evidence from a witness that he had met the applicant through a dating site, that they met regularly and engaged in casual sex, and that he hoped their casual relationship would become a long term relationship;
  • Evidence from another witness that he had met the applicant on a male dating site and that he and the applicant had engaged in casual sex;
  • Evidence from a third witness that he was an openly gay man, that he had met the applicant through a gay app, Grindr, and that he met the applicant regularly for casual sex;
  • Evidence from a fourth man who also said that he was gay and had also met the applicant through Grindr and had also had sex with the applicant.

The Tribunal had concluded that the evidence of these 4 witnesses had been “fabricated”.

It did not provide any analysis or explanation as to why it believed that the evidence of the last 3 witnesses was “fabricated” – it did no more than conclude that was the case.

As to the first witness, it was the Tribunal’s finding that the witnesses’ statement that he wished for the applicant to become his husband was “indicative of his attempts to fabricate evidence of their relationship”.

Quite correctly, the Full Court found that a simple statement by a witness that he wished for the applicant to become his husband was not so inherently implausible by itself that it was indicative of fabrication.

Shocked yet?

How about this one: the Tribunal took into account in reaching its decision “the lack of independent witnesses until recently, despite the fact that the applicant lives in a city which has a sizeable and visible homosexual population”.  The Full Court found that this line of reasoning on the part of the Tribunal was  “underpinned by an unwarranted assumption that if the appellant had truly been homosexual, he would have engaged in sexual relationships with a larger number of men”.  (!!!)

In the end, the Full Court ruled that the Tribunal’s decision was infected by jurisdictional error, because there was no logical, rational or probative basis for its finding that the evidence of the witnesses described above was fabricated.

One can only be thankful for the wisdom of the Full Court in this case, and hope that the Tribunal does not stray this badly in the future!

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  • Guest
    Ese-King Aigbokhan Wednesday, 17 January 2018

    Very shocking Tribunal decision. It comes often. We have seen cases were Clients have been advised by the tribunal to 'hide their orientation' when they get to their country. We have read about cases were clients have been advised 'homosexuality is not popular in your country....we strongly doubt where you got your orientation from'

    The simple question that, one would then ask is, why should 'them' hide and what is the relevance of popularity of orientation or otherwise as per the issue on ground?

    Similar issue was before the Supreme Court in 2010 [HJ (Iran) (FC) vs SSHD (2010) UKSC 31]. The major issue was how those with well founded fear could be identified. And whether the popular state recommendation of discreet living is the solution. The view of the writer of the writer with respect to discreet living of the claimant, is that, it is tantamount to self-inflicted torture/repression. It would appears that, no one really cares about what will happen if the claimant slips in his /her discreetness. Why is the claimant expected to change life style? Is the claimant afraid of potential persecution? And if the claimant is afraid, can that 'fear' be deemed 'well founded'?

    My advice to practitioners is to watch the case, mostly at the stage of initial refusal by the Home department and request for your client's freedom of information. Apart from buying time, this could be revealing. I know of a case where because of client/professional dispute, the solicitor for a claimant wrote to the Home Department advising that his client is not a gay, and that his client made the application to circumvent immigration process. How the solicitor came to that conclusion remain puzzling. In fact, I would advise that, practitioners mention the implication of lying on oath to claimants. The reason for that may be obvious from the scenario above.

    I join you to thank the wisdom of the full court. Otherwise, it could have been worse.

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