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Federal Court Overturns Shockingly Bad Decision by Tribunal in Partner Visa Case

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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  • Guest
    kevin Tuesday, 06 March 2018

    he got the protection visa by saying he is homosexual now he is not if he is now not homosexual why would he need a protection visa which should now be cancelled as he is not gay anymore. he should not have a problem going back to his original country sounds like a scam to me

  • Guest
    SILVIA Tuesday, 06 March 2018

    In this time and age, when the wide range of human sexuality is acknowledged and accepted in its various forms without blinking twice, it is astonishing to find a decision –luckily appealed- which was taken by the AAT based on “moral presumptions”.

    It is comforting to read that Justice Jagot has acknowledged the irrational and illogical reasoning – of the decision- as one that was infected by jurisdictional error of the AAT and subsequently confirmed by the Federal Circuit Court.

    It is also comforting -and brilliant- to read that the appeal was allowed and that the decisions of the AAT and Federal Circuit Court are to be set aside, with the direction that given the nature of the Tribunal’s error, the remitted matter be dealt with by the Tribunal constituted by a different member to the original one who made the decision.

    Hopefully, this matter will prompt other delegates and members not to use personal bias and/or irrational or illogical reasoning when dealing with human lives, human problems and human hopes.

  • Guest
    SILVIA LEVAME Tuesday, 06 March 2018

    For some reason, my surname did not appear on my previous comment. Please amend. Thanks

  • Guest
    kevin Tuesday, 06 March 2018

    he can have whatever sexuality he wants that is not he problem here it is what appears to be fraud did he say he was bi sexual when he applied & got this protection visa or just homosexual because he feared persecution i am assuming he said he is homosexual that is why i think it is fraud i agree with silvas comment on his changing of sexual orientation who cares good luck to him but fraud strongly appears to have been committed that is why his protection visa should be revoked & also the spouse visa he got it on the basis that he is gay & as he is not now gay he by his own definition he should not be persecuted if he goes back to Lebanon & should be deported back there

  • Guest
    SILVIA LEVAME Wednesday, 07 March 2018

    Hi Kevin, with due respect, I think you are missing the point here.

    We should not focus on the sponsor’s past life and past claims. We should focus on the commitment to a shared life to the exclusion of all others and to the genuineness of the relationship between sponsor and applicant, as specified in s 5F of the Act at the time of the partner application. No generalizations, no blanket definitions of human sexuality should be applied here. Nothing is, in my humble opinion, immutable.

    At para 15, Judge Jagot stated: I consider the Tribunal’s process of reasoning involves assumptions, pre-conceptions or pre-judgments which prevented the Tribunal from engaging with the claims of the appellant and her sponsor that their marriage was and is genuine and the material which supported those claims (such as the child of the marriage). Further, these assumptions appear to be based on a premise about homosexual men in general, rather than the sponsor in particular. The premise is that if, as the Tribunal’s view of the “gay rights movement” would have it, males are born either heterosexual or homosexual (or, in the Tribunal’s words, “genuinely bisexual”), then a man born homosexual can never enter into a genuine spousal relationship with a woman.

    By proceeding on the basis of this premise as if it represents a universal truth, I consider that the Tribunal has disabled itself from engaging with the material before it. Alternatively, I am satisfied that the Tribunal’s process of reasoning is affected by illogicality of the kind required to constitute jurisdictional error. The principles in respect of this latter kind of error are summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

  • Guest
    Michael Arch Wednesday, 07 March 2018

    You would only consider this to be "fraud" if you were to accept the ludicrous and unfounded assumptions of the Tribunal member that a person's sexual identity is immutably fixed at birth and a person who has at any time identified as homosexual can never have a genuine relationship with a person of the opposite sex. We all know better from our daily experience.

  • Guest
    Michael Wednesday, 07 March 2018

    Good work, Michael.
    The interesting part will arise from the next Tribunal's decision on the matter. I await your comments on that.

  • Guest
    kevin Thursday, 08 March 2018

    he said he was gay & sought protection now he is not gay therefore why does he still need protection i am looking at the theory that is also plausible that he lied to get the protection visa he can change his sexual orientation as many times as he wants in his life which is his right now he is not gay & should be sent back to Lebanon because he is not in danger from being persecuted for his sexual beliefs that is why he got the protection visa in the first place which i personally feel was fabricated to get the protection visa now he is not gay he should not be entitled to a protection visa & my point is it strongly appears he lied to get here then when he thought it was safe to do so turned hetrosexual he married a lady from the same country as him also on a student visa. your point is he has the right to change his sexual preferences as many times as he chooses i agree with you but he should not now be allowed to stay here as he is not in danger any more & please correct me if i am wrong you are saying whatever his sexual preference was in the past does not matter & he can change this at will i agree with you my point is he is not gay anymore & should not be entitled to a protection visa & i believe he lied to get this visa thank you for your views Michael i have been told you have many years of experience in immigration & we will agree to disagree on this topic

  • Guest
    Raul Senise Thursday, 08 March 2018

    Falsely claiming to be homosexual in order to obtain a protection visa is a well known scam which has been exposed regularly.
    It appears that this case does nothing but highlight this ongoing ploy.
    Rather than praise the decision, you should consider the effects on genuine persecuted homosexuals, who will no doubt be negativity affected by the reforms that will need to be put in place because of this decision, to attempt to stop the scammers. Much like those who claim protection, but immediately visit the county of supposed persecution upon receiving a visa.
    It is interesting that the sponsor claimed he had been "reformed" from being homosexual. This is not something I thing you would ever hear a Gay person say, most would find it highly offensive.

  • John Peter Mendoza
    John Peter Mendoza Friday, 16 March 2018

    Very interesting. That sexuality exists along a continuum is demonstrated by people who have been married as a heterosexual couple with kids for many years yet one day recognise their same sex attraction. That these later in life people begin a homosexual relationship does not negate that they were once heterosexual. There is no fraud here. Free people have the freedom to choose and change their sexual orientation. And I don't think evidence of this would too hard to gather.

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