Tribunal Gets Another Case Involving Claim of Homosexuality Wrong!

The Department and the Tribunal can surely be insane and harsh when it comes to claims by an applicant for a protection visa that he is subject to persecution in his home country by reason of his homosexuality.

Here is an example from a recent case that was decided by Judge Smith in the Federal Circuit Court, AMF17 v Minister for Immigration & Anor (2018) FCCA 1848 (11 July 2018).

The applicant in this case had originally arrived in Australia from Cameroon on a visitor visa, and shortly after he applied for a protection visa.  It was the applicant’s claim that he and his partner had been “caught” and had been badly tortured.  He provided evidence of this assault from a medical centre which indicated that he had suffered bruises and abrasions, a swollen face and a black right eye.  The applicant also claimed that his partner had died as a result of the mistreatment.

However, the delegate in the first instance refused to accept that the applicant’s claims that he was homosexual were credible. The basis upon which the delegate rejected the claims was that the applicant had voluntarily returned to Cameroon on 3 occasions after the death of his partner and that he had not made any attempt to register with the United Nations High Commissioner for Refugees when he had travelled to Malaysia and South Korea.

The Tribunal also rejected the applicant’s claims that he is homosexual.

Key to the Tribunal’s conclusion was its finding that the applicant had not spoken about his sexuality when he had spoken to counselors at the Association for Services to Torture and Trauma Survivors (“ASSETTS”).  The Tribunal’s decision stated that the fact that “the applicant failed to disclose his claimed homosexuality to his counselor in all the circumstances further undermines his claim to be a homosexual”.

What is truly amazing about this finding is that during the hearing before the Tribunal, when questioned by the member, the applicant in fact gave evidence that he had discussed his sexuality with a male counselor at ASSETTS, but that he had not been comfortable discussing that issue with a second, female  counselor.

Judge Smith determined that this omission by the Tribunal had caused it to commit jurisdictional error: the fact that the Tribunal had overlooked the applicant’s evidence that he had spoken to a counselor at ASSETTS about his sexual orientation had led it to doubt his credibility – so if the Tribunal had given appropriate weight to the applicant’s evidence that he had in fact  discussed his sexual orientation with the ASSETTS counselor, that evidence may actually have supported, rather than undermined, his credibility.

It really is remarkable, when one reads Tribunal decisions relating to applications for protection visas, how frequently the Tribunal determines that applicants are not “believable” and then proceeds to comprehensively reject every aspect of their claims concerning their histories in their home countries – it seems that when one reads these decisions, the Tribunal very often proceeds from a presumption or predisposition that applicants for protections visas are not truthful witnesses.

One truly wonders if it really is the case that so many people who are seeking protection visas are really “making it all up” – would it really be the case that people would flee their home countries, and so many times put their lives at risk through a perilous sea voyage to Australia, if they did not at least have a very strong subjective fear of suffering serious harm? 

At least in this particular case, the moral here is that the Tribunal did fail to take into account critical evidence that was given by the applicant at the hearing and consequently made adverse credibility findings regarding his protection claims.

How often has this happened?

What have your experiences been with the Department and the Tribunal concerning protection visa applications predicated on claims of homosexuality?