APF16 v Minister for Immigration and Border Protection

Federal Court of Australia|2019-04-16|Before: Mr J, McKerracher J

The appeal be allowed.
The orders made by the Federal Circuit Court of Australia on 25 July 2018 be set aside and in place of those orders, it be ordered that: (a) the decision of the Administrative Appeals Tribunal be set aside; (b) the matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law; and (c) the first respondent pay the costs of the applicant, to be assessed if not agreed.
The first respondent pay the costs of the appellant, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant appeals a decision of the Federal Circuit Court of Australia dismissing his application for review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth). 2 At the time of hearing the appeal, submissions for the appellant were filed only shortly prior to the appeal due to the appointment of pro bono counsel. The Minister was given leave to file further submissions in response if necessary. No further submissions were filed.

BACKGROUND 3 The appellant is a Lebanese national. He arrived in Australia on a student visa in November 2010. In February 2014, he applied for a protection visa. That visa was refused by the delegate in June 2014. The Tribunal affirmed the delegate's decision in February 2016. 4 The appellant's protection claims were that he was a person to whom Australia owes protection obligations on the ground that he is gay or bisexual and fears harm upon returning to Lebanon on the basis of his sexual identity. The term 'gay' has been used interchangeably with the term 'homosexual' in consideration of his claims and therefore also in these reasons.

IN THE TRIBUNAL 5 The Tribunal considered the appellant's circumstances individually and cumulatively, but found he did not meet the requirements that engage Australia's protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. It based its decision on adverse credibility conclusions. 6 The Tribunal concluded that the appellant was prepared to give false evidence in order to achieve a favourable migration outcome. That conclusion was based on a number of concerns the Tribunal had with the appellant's claims; notably the Tribunal: (a) was concerned with the appellant's claims about his sexuality and sexual preferences, particularly in light of inconsistencies with his statement and evidence. The Tribunal specifically noted inconsistencies in respect of the appellant's evidence about his sexual attraction, sexual encounters and a prior relationship with a girl. The Tribunal also considered the appellant had provided evasive evidence regarding his claimed bisexuality; (b) was also concerned that the appellant was prepared to give false evidence, rely upon false supporting evidence and make false claims in order to be granted a protection visa. Two examples it gave were of the appellant's willingness to change his evidence in response to the Tribunal's concerns in relation to information about his usual occupation as a student and the conversations with his employer about his performance; (c) was further concerned with the appellant's claim that he was interested in discovering himself and his sexuality when he also claimed to have made no efforts to investigate the gay scene or homosexual activities in Lebanon. The Tribunal considered this evidence to be evasive and undermining of his credibility; and (d) took issue with the appellant's claims that he could not let anyone in Lebanon know about his sexual orientation and his claimed fear of harm arising from people finding out he is bisexual. He gave changing evidence, the Tribunal said, about the contact with his family members, his posting of material relating to his sexuality on Facebook and his return to Lebanon in 2013 after making those posts. The Tribunal considered that it was 'more likely that the [appellant] posted these websites for the purposes of his forthcoming protection visa claim'. 7 The appellant had claimed that his family were not aware of his true sexual orientation and were placing pressure on him to marry. He further claimed that he attended a number of gay-friendly venues in Australia, had a number of casual relationships with men in Australia and that people of his sexual orientation were in danger of serious harm in Lebanon. The application was supported by two statements of men who stated that the appellant was gay. These were handwritten on forms applicable to statutory declarations but were not witnessed. I consider the evidence in more detail below. 8 The Tribunal also took into account country information and corroborative evidence provided to it by the appellant. It considered that this material did not overcome its concerns about the appellant's credibility and claimed sexual orientation. This appeal pertains mainly to the Tribunal's consideration of the corroborative evidence. 9 Based upon its adverse credibility findings, the Tribunal did not accept that the appellant was bisexual or homosexual. It did not accept that he had been sexually attracted to or had sexual encounters with males in either Lebanon or Australia. The Tribunal found that the appellant's activities in Australia (including postings on Facebook, signing up for a Mardi Gras workshop and producing certain photos) were engaged in by the appellant for the purpose of strengthening his protection claims. The Tribunal said it was obliged to disregard that conduct in its assessment of the appellant's claims under s 91R(3) of the Act. 10 Ultimately, the Tribunal concluded the appellant did not have a well-founded fear of persecution in Lebanon, nor was there a real risk that he would suffer significant harm if removed from Australia to Lebanon. The Tribunal affirmed the delegate's decision.

The evidence 11 Three statutory declarations were lodged with the Tribunal prior to the hearing. 12 The declarants (to whom I will refer as Mr X, Mr Y and Ms Z respectively) made statements which went to the appellant's claim concerning his sexual orientation. The evidence was to the following effect: (1) Mr X declared on 8 February 2016 that: (a) he had been in a relationship with the appellant for approximately six months; (b) he returned to his native Germany, but immediately applied for another visa to be back with the appellant; (c) he and the appellant had been residing together since January 2016; (d) the appellant relied on him for emotional and physical support; and (e) he loved the appellant very deeply. (2) Mr Y declared on 4 February 2016 that: (a) the appellant and Mr X were very close friends of his and he saw them almost daily; (b) when the appellant met Mr X 'his life completely changed'; (c) the appellant and Mr X were witnesses at his wedding; (d) the appellant's biggest fear and what keeps him awake at night is the thought of losing Mr X; (e) should the appellant be forced to return to Lebanon he would lose Mr X and repress himself sexually; and (f) the thought of being forced to return to Lebanon has the appellant stressed and depressed. (3) Ms Z declared on 4 February 2016 that: (a) she met the appellant through her husband and since then the three of them have become extremely close friends; (b) she was delighted to have met the appellant's partner, Mr X, 'recently'; (c) she has seen a positive change in the appellant and he has a completely new direction and new take on life; (d) she believes Australia is the only place the appellant can live his life and be happy; (e) in Australia the appellant can live a normal and stress free life as a 'gay man'; and (f) the appellant's biggest fear is having to return to Lebanon, losing Mr X and being deprived the life he is living in Australia. 13 Also in evidence before the Tribunal, relevantly, was a letter from a counsellor attesting to the appellant's level of stress and depression, an email confirming that the appellant had signed up as a volunteer for a Mardi Gras workshop and various other documents, including articles reporting of the treatment of homosexuals in Lebanon. 14 Mr X gave evidence during the hearing to the effect that he was the appellant's partner and was having a physical relationship with him. Claims as to the appellant's sexual orientation were corroborated by Mr Y and Ms Z who also gave evidence. 15 In its decision, the Tribunal noted that prior to the hearing, the appellant had provided 'some witness statements and supporting documents'. It summarised the claims made by the appellant in his protection visa application and supporting statement, including the claim that the appellant was bisexual. The Tribunal noted that the delegate's interview with the appellant and the delegate's reasons for rejecting the application were before it. The Tribunal also noted that witnesses had given evidence. 16 The Tribunal did not believe the appellant, basing its conclusion that the appellant was not a 'credible witness' on several factors (detailed above (at [6])), including inconsistencies with the appellant's evidence and a concern about the appellant's preparedness to provide false evidence. 17 Under the heading 'Corroborative evidence'; the Tribunal reasoned as follows: (1) The Tribunal accepted there had been some targeting of homosexuals in Lebanon, but also that there was a homosexual culture in that country. It did not consider that the country information overcame the Tribunal's concerns over the appellant's evidence. (2) The Tribunal referred to the email showing the appellant had volunteered for a Mardi Gras workshop and the witness statements, including those of the people who had given evidence at the hearing, to the effect that the appellant is homosexual, he attended parties at a 'gay club' in Sydney, he is in a relationship with Mr X and he is depressed and anxious about returning to Lebanon. The Tribunal observed that people can provide supporting evidence for a number of reasons, including to assist a person to stay in Australia. It continued to note that '… it could be that his claimed partner was actually a close friend'. Having regard to its concerns as to the appellant's credibility, the Tribunal did not accept that the activities undertaken by the appellant overcame its concerns about his claimed sexual orientation. (3) The Tribunal referred to photographs produced to it which the appellant described in his post-hearing statement as being 'mere evidence of his social activities'. However, the Tribunal was not prepared to lend these photographs 'any weight in relation to the claim that the [appellant] is bisexual or homosexual or in a sexual relationship with his claimed partner'. It found that the assertions made by various witnesses did not overcome its concerns as to the appellant's credibility. 18 The Tribunal gave the counsellor's report 'no weight' as corroborative of the appellant's claimed sexual orientation. It accepted that he may be depressed about returning to Lebanon but not that the evidence before the Tribunal as to the appellant's mental health could explain or excuse the concerns which, cumulatively, led to the Tribunal's finding the appellant to be an unreliable witness. 19 The Tribunal considered that the appellant had undertaken activities in Australia for the purpose of strengthening his claim. 20 In relation to complementary protection, the Tribunal did not consider the appellant's Facebook entries, including his 'likes' on 'gay/LGBT' websites would place him in any danger upon return to Lebanon. The Tribunal was not satisfied, as a consequence of the other activities the appellant engaged in whilst in Australia, he would face any risk of becoming known in Lebanon and, therefore, the appellant did not face a real risk of significant harm in Lebanon.

IN THE FEDERAL CIRCUIT COURT 21 The appellant sought judicial review. The appellant was represented by counsel in the Federal Circuit Court. 22 Two grounds of review in the Federal Circuit Court pertained to jurisdictional error based on the Tribunal's failure to consider the evidence concerning the appellant and his partner's sexual relationship. There was a third ground of legal unreasonableness. 23 In relation to the grounds contending a failure of consideration, the primary judge noted (at [41]) that the appellant submitted the Tribunal had simply not engaged with Mr X's evidence that he was in a sexual relationship with the appellant. The appellant relied on Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67, where the Full Court (Katzmann, Griffiths and Wigney JJ) said (at [34]): The fact that a matter is not referred to in the tribunal's reasons, however, does not necessarily mean the matter was not considered by the tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the tribunal's reasons does not necessarily mean that the material was overlooked. The tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the tribunal's reasons, the findings and evidence that the tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant's claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52]. (Emphasis added.) 24 The appellant in the Federal Circuit Court submitted that whether or not a matter should be mentioned in the Tribunal's reasons depends upon the importance of the matter to an applicant's case. It was contended that the evidence of Mr X, concerning his sexual relationship with the appellant, was so central to the appellant's case that it required express consideration by the Tribunal. 25 The appellant also relied upon Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, where Allsop J (with whom Spender J agreed) said (at [42]): The "participation in the Karen community and the political groups" could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding … (Emphasis added.) 26 For the appellant it was submitted in the Federal Circuit Court that Mr X's evidence in respect of his sexual relationship with the appellant was not mentioned in the Tribunal's reasons and that this indicated that the necessary consideration was not given to it by the Tribunal. It was submitted that this indicated either a failing to consider essential evidence or a failing to consider an integer of the claim giving rise to incomplete exercise of the Tribunal's jurisdiction. 27 The primary judge, however, considered that the assessment by the Tribunal was complete, observing that the Tribunal plainly understood that the appellant claimed to be homosexual or bisexual with an attraction to males, with his sexuality being at the core of his claims for protection. The Tribunal assessed each integer of the appellant's claims within that framework. Further, her Honour considered it was clear on the face of the Tribunal's reasons that the Tribunal plainly understood that the appellant and Mr X claimed that their relationship was of a sexual nature. The Tribunal referred to oral evidence from the appellant's 'claimed partner' and the two friends who had also provided statutory declarations. 28 Her Honour said, more particularly, the Tribunal addressed the claims made in the written and oral evidence from the three witnesses who attended the hearing, in addition to the two statutory declarations produced to the Department. The primary judge noted that the Tribunal (at [58]) recorded accurately in respect of the statements and witnesses that: …These asserted variously that the [appellant] was homosexual; that he went to many parties to the gay club in Oxford Street Sydney; that he is proud to be gay; or that he is depressed and anxious because of the thought of returning to Lebanon; that he cannot tell his family or friends or return to Lebanon; that he is in a relationship with the witness [Mr X]. (Emphasis added.) 29 Consistent with this summary, her Honour noted, was Mr X's evidence in his statutory declaration that he was in a 'relationship with' the appellant. Further, in the declarations of the other two witnesses, Mr X was referred to as the appellant's 'partner'. 30 Similarly, at the Tribunal hearing the appellant and Mr X both claimed to have been 'in a relationship' from about March 2015 and that they had been living together after Mr X returned from Germany. At the hearing the Tribunal questioned the appellant as to when he started a 'sexual relationship' with Mr X. It was stated to the Tribunal that after Mr X's return to Australia they commenced a sexual relationship on Mr X's birthday in November 2015. 31 The primary judge said that throughout the Tribunal's reasons, when the Tribunal was discussing this claimed relationship, it referred to Mr X as the appellant's 'claimed partner'. The Tribunal identified that the appellant claimed to be in a relationship with Mr X. 32 Her Honour continued (at [56]-[62]): 56. Importantly, the Tribunal considered the evidence (including from [Mr X]) that the [appellant] and [Mr X] were in a sexual relationship (and the claim in this regard insofar as it was an integer of his claims in the sense considered in Htun). Having rejected the [appellant's] credibility in relation to matters central to and related to many of his claims (including, significantly, his sexuality as well as his claimed sexual experiences and relationships), in paragraphs 57-65 the Tribunal addressed the potentially corroborative evidence, including from [Mr X] and including the assertion that the [appellant] was homosexual and "in a relationship with the witness [Mr X]" which the Tribunal recognised (in paragraph 59) was said to be a sexual relationship. 57. The fact that the asserted relationship with [Mr X] (elsewhere described as the [appellant's] claimed partner) was expressly referred to as a sexual relationship in the particular context of a Tribunal finding that "[w]hile the Tribunal is prepared to accept that the [appellant] and his claimed partner are friends, the Tribunal is not prepared to give these photos any weight in relation to the claim that the [appellant] is bisexual or homosexual or in a sexual relationship with his claimed partner" is not to be seen in isolation. 58. In paragraph 59 the Tribunal had commenced by expressly considering the nature of the [appellant's] relationship with his "claimed partner". It indicated that it had put to the [appellant] that it could be that he and "his claimed partner" were close friends. It did not accept that the activities undertaken by the [appellant] to support that he was gay/bisexual overcame its concerns about his credibility and claimed sexual orientation. In that context it considered submitted photos of the [appellant] "and his claimed partner" (some of which apparently suggested a degree of intimacy). It found that it was prepared to accept that the [appellant] and his claimed partner were friends, but that it was not prepared to give the photos any weight "in relation to the claim that the [appellant] is bisexual or homosexual or in a sexual relationship with his claimed partner". 59. While in this part of paragraph 59 the Tribunal was addressing the weight to be given to evidence and did not reach a conclusion as to the existence of a sexual relationship, it also made a more general finding about the weight to be given to the "assertions made by witnesses" (which would include [Mr X]) as to the [appellant's] claimed gay/bisexual orientation. It found that these assertions did not overcome its "concerns" (which clearly referred to the detailed concerns about the [appellant's] credibility). 60. Insofar as these grounds refer to [Mr X's] evidence, the Tribunal not only found that "the assertions made by the [appellant] to the counsellor" did not overcome its credibility concerns about the [appellant's] evidence, but also in considering the [appellant's] claim to have "exhibited sexual freedom in Australia", observed that it had given no weight to the statements of witnesses (who included the [appellant's] claimed partner). 61. In these circumstances the Tribunal's conclusory "[f]indings of fact in relation to events to date" clearly encompassed the claimed sexual relationship with his claimed partner. The Tribunal found (emphasis added [in the original]): On the basis of the adverse credibility finding, the Tribunal does not accept that the [appellant] is or has ever been bisexual or homosexual. It does not accept that he has ever had any sexual attraction to, kissed or hugged or had any sexual encounters with, males, either in Lebanon or in Australia. 62. Seen in context, this finding clearly "dealt with" or "confronted" the evidence and/or claim from [Mr X] (as well as from the [appellant]) that the [appellant] was in a sexual relationship with [Mr X]. 33 Her Honour considered the Tribunal had correctly understood and considered the appellant's claim and the evidence of Mr X with respect to the sexual nature of his and the appellant's relationship. The Tribunal did not accept the claim. The primary judge dismissed the grounds alleging a failure of consideration on the part of the Tribunal. 34 The primary judge then proceeded to deal with the unreasonableness ground, noting that in support of the ground the appellant pointed to the fact that he and Mr X claimed to be in a homosexual relationship and to be partners. While it was acknowledged that the application was not for a partner visa, reliance was placed on reg 1.09A(4) of the Migration Regulations 1994 (Cth), which provides: 1.09A De facto partner and de facto relationship … (4) If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3). 35 Her Honour noted that the appellant accepted this was permissive and did not create a relevant consideration in the Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 sense. However, it was contended that reg 1.09A(4) of the Regulations provided for a discretion to be used in an appropriate case. This was said to be important given that the task of the Tribunal was to come to the correct or preferable decision within the limits of its statutory powers. 36 On this basis it was submitted that the Tribunal had erred in failing to consider whether any of the circumstances mentioned in reg 1.09A(3) (being the financial aspect of a relationship, nature of households, social aspects of the relationship, the nature of the person's commitment to each other, etc) applied. It was said the existence of the relationship was integral to, or very important to, the appellant's case and therefore an appropriate case for the Tribunal to look into those factors. 37 It was submitted for the appellant that the written and oral evidence from Mr X and the other witnesses as to the existence and recognition of such a relationship, as well as the emotional support derived from the relationship, could clearly go to the nature of the relationship and, therefore, to the question of the appellant's sexual orientation. While the appellant conceded before her Honour it may not be determinative, it was said to be highly relevant. 38 Her Honour rejected the unreasonableness ground referring to the observations of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (at [72]). Her Honour said the starting point as a matter of statutory construction is the question to be determined by the Tribunal. In this case that question was whether the appellant met the criteria for a protection visa set out in s 36 of the Act. This did not include criteria as to whether the appellant for the visa was or was not in a de facto relationship. The primary judge said the claims made by the appellant did not require a determination in that respect. What was relevant was whether the Tribunal accepted the appellant's claim that he was in a sexual relationship with Mr X in support of the appellant's claim to be homosexual and hence faced a risk of harm in Lebanon. 39 The criteria for a protection visa are set out in the Act. Not only do the criteria not refer to the relationship status of the non-citizen applying for a protection visa, but her Honour noted what was in issue about the claimed relationship in this case was whether it was a sexual relationship. 40 The primary judge said (at [81]-[84]): 81. The [appellant] had not applied for a partner visa on the basis of a de facto relationship. The relevance of the claimed relationship with [Mr X] in the context of the [appellant's] protection visa application was not whether it would meet the definition of de facto relationship in s.5CB of the Act or the characteristics relevant to a consideration of whether an [appellant] was in a de facto relationship set out in reg.1.09A(3) which the decision-maker must consider if considering an application for a specified class of partner visa (see reg.1.09A(2)). Rather, the claimed sexual relationship with [Mr X] (his claimed partner) was a matter raised by the [appellant] to bolster the veracity of his claim to fear harm in Lebanon on the basis of being homosexual and/or bisexual and thus to strengthen the foundation of his claim to be a person in respect of whom Australia had protection obligations. 82. Taking into account the many concerns it had with the [appellant's] credibility, the Tribunal did not accept that the [appellant] had ever had any sexual encounters with males in Australia. This finding clearly involved a rejection of the claim he was in a sexual relationship with [Mr X]. Whether or not their accepted "close friendship" may have met some of the matters listed in reg.1.09A(3) was not to the point, given that the [appellant's] claims were based on his sexuality. 83. Moreover, the obligation on the Tribunal, acting reasonably, to consider the exercise of a power does not arise in every case. As Gageler J pointed out in Li at [102] "[t]he permissive terms in which the power to adjourn is conferred on the [Tribunal] make clear that the power itself carries no duty on the [Tribunal] to consider its exercise. The overriding duty of the [Tribunal] to review a decision may nevertheless require the [Tribunal], acting reasonably, to consider exercise of the power in a particular case". 84. The circumstances of this case were not circumstances in which no reasonable Tribunal could fail to consider expressly whether to exercise the discretion in reg.1.09A(4) to consider any of the circumstances in reg.1.09A(3) (cf Li at [103]). This is not a case in which it can be inferred from the matters falling for consideration in the exercise of the statutory power (to review a decision not to grant a protection visa) that the Tribunal's failure to consider whether to address the factors in reg.1.09A(3) was unreasonable. The Tribunal's approach in this respect fell "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". The Tribunal's approach was within the area of its decisional freedom (see Li at [28], [66] and [105] and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]). 41 As none of the grounds relied upon by the appellant before the primary judge was successful, the application was dismissed.

Grounds of appeal 42 The appellant essentially repeated the arguments advanced before the Federal Circuit Court, although it relied upon two authorities which were apparently not cited to the primary judge. 43 The grounds of appeal in this Court were as follows: 1. The [Federal Circuit Court] erred in finding that the [Tribunal] lawfully considered evidence essential to the resolution of the review. Particulars (a) In failing to properly consider corroborative evidence of [Mr X, Mr Y and Ms Z]. (b) In dismissing the evidence of Facebook 'likes' under s91R(3). (c) If [sic] failing to consider the corroborative evidence of the Facebook 'likes'. 2. The [Federal Circuit Court] erred in finding that the [Tribunal] considered all integers of the Appellant's claims. Particulars (a) In failing [sic] attempt to make a correct and preferable decision by asking questions relevant to the Appellant's relationship, such as the matters referred to in Reg 1.09A[.] 3. The [Federal Circuit Court] erred in finding that the [Tribunal's] decision was not effected by legal unreasonableness in that the [Tribunal] failed to consider the application of Migration Regulation 1.09A(3) in deciding the Appellant's case. Particulars (b)[sic]In failing [sic] attempt to make a correct and preferable decision by asking questions relevant to the Appellant's relationship, such as the matters referred to in Reg 1.09A[.] 44 The appellant's argument in this Court as below was, while it was entirely clear that the Tribunal had closely considered the evidence of the appellant, it did not consider the actual corroborative evidence from the three witnesses, particularly Mr X, the appellant's claimed partner. The appellant's submission was that it was beyond jurisdiction to dismiss the appellant's claimed homosexuality (or bisexuality) only because of the appellant's credit issues without giving proper, genuine and intellectual consideration to the corroborative evidence.

At the hearing 45 I note that the appellant's case as finally argued for the appellant at the hearing relied primarily on two Full Court decisions. The first, BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, was a decision of Perram, Perry and O'Callaghan JJ delivered on 25 June 2018, one month before the Federal Circuit Court's decision. The second DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175, was a decision of Kenny, Kerr and Perry JJ delivered in early 2018. BZD17 was not the subject of written submissions and DAO16 was cited only for illustrative purposes within the appellant's written submissions. The Minister responded to the appellant's oral submissions in respect of these two cases and these oral submissions are considered below. However, given the limited notice the Minister received, I granted leave for the Minister to file further supplementary submissions should he wish. As noted at [2], no further submissions were filed.

Consideration 46 I turn first to the two Full Court cases which were the primary focus of oral submissions. BZD17 was an appeal by a person who claimed to be in fear of returning to Cameroon because of his homosexuality. Since coming to Australia he had had a number of sexual partners. His application was denied, similarly, solely on credibility grounds. He was found to have consistently fabricated claims and been deliberate in his actions to present himself to a range of people as 'gay'. The Tribunal had disregarded the evidence pursuant to s 91R(3) of the Act. However, the appellant in that case had corroborative witnesses, including his partner and another person who had known him for some years (referred to by the Full Court as 'Mr C') whose evidence was said to have been given little weight. The Full Court noted that having dismissed the appellant's evidence and that of certain witnesses, Mr C's evidence was critical. If Mr C's evidence were accepted, the Tribunal would have been required to consider whether the appellant would suffer a real risk of persecution or significant harm if returned to Cameroon on the basis of his sexual orientation. Further, if Mr C's evidence had raised a real doubt in the Tribunal's mind, the Full Court noted it would have been required to consider the 'what if I am wrong' test. 47 In BZD17, the Full Court said (at [42]-[50]): 42 The Tribunal dealt with Mr C's evidence in the following passages: 132. Further, I have taken into account the post-hearing statutory declaration from, and appearance at the third hearing by [Mr C] who claimed to have been a human rights and gay activist in Cameroon and to have met [Mr B] and the applicant together. I also lend this little weight. He mentioned the applicant and [Mr B] being active in supporting the organisation, bulk buying condoms and lubricants for the centre, while the applicant also used his friends in Europe to bulk buy the same in Europe and bring them to [Cameroon]. 133. The applicant never mentioned in his application, his interview with [the] DIBP [i.e. the Department for Immigration and Border Protection], either of his two hearings or in any of the submissions about this level of activity with a human rights group and it is reasonable to believe that this would have been mentioned well before the appearance of a person the applicant coincidently met at the 2017 mardi gras… (emphasis added [in original]) 43 I note that while the Tribunal refers at [132] to the "post-hearing statutory declaration" from Mr C, the declaration post-dates only the first and second hearings before the Tribunal held on 9 February 2017 for approximately 2 ½ hours and 16 February 2017 for approximately 3 hours. However, there was a further hearing on 19 April 2017, which lasted approximately 1½ hours. Mr C's statutory declaration was made on 14 March 2017 and therefore before the third hearing where he, and a number of other witnesses, gave evidence before the Tribunal. 44 The Minister submits, in effect, that the Tribunal found that this case is one of the "rare" cases where a party's credibility has been so weakened that the tribunal of fact may treat what is proffered as corroborative evidence as being of no weight because "the well has been poisoned beyond redemption": SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638; (2008) 105 ALD 25 (SZDGC) at [23]-[24] and [27] (Finkelstein J) (citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 (S20/2002) at [49] (McHugh and Gummow JJ); see also Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36]-[39] (North and Lander JJ) and [50] (Katzmann J). 45 In our view, however, these passages reveal a failure by the Tribunal to give a proper, genuine, and realistic consideration to the evidence of Mr C. In this respect, it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus "first upon the case as it was put by the appellant", before considering the alleged corroboration. However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant's evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant's claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant's claims might be correct. 46 In this regard, while the Tribunal states that it gives Mr C's detailed evidence about the appellant and Mr B "little weight", logically (as the Minister accepted) the Tribunal decision must be read as having rejected the totality of that evidence. The question then arises as to the reasons, if any, that the Tribunal gave for its comprehensive rejection of Mr C's evidence regarding the appellant and Mr B. 47 First, there is no suggestion by the Tribunal, for example, that Mr C mistakenly confused the appellant with someone else. 48 Secondly, while the Tribunal finds at [87] that the "totality" of the appellant's evidence reveals that he has "consistently fabricated claims and [has] been deliberate in his actions in order to present himself to a range of people as gay", there is no consideration of why the appellant might have presented himself to Mr C as a gay man in Cameroon if that was not true. Mr C's evidence was that he met Mr B in Cameroon in or around mid-May 2011, whereas the appellant did not arrive in Australia and apply for a protection visa until mid-2014, some three years later. As such, to the extent to which the Tribunal gave any real consideration to Mr C's evidence, it must be inferred that the Tribunal found that Mr C's evidence was fabricated, as the Minister accepted. 49 Thirdly, there is no attempt by the Tribunal to analyse Mr C's evidence and explain why he must have lied. It appears from the Tribunal's reasoning at [133] that the Tribunal relied upon the alleged failure by the appellant to mention his involvement in the human rights group run by Mr C, but this does not logically explain why Mr C would have lied about that involvement and his prior association with the appellant and Mr B. Nor does the Tribunal give any consideration as to why Mr C might have fabricated such an elaborate story. It seems that the Tribunal even doubts Mr C's evidence to have been a human rights activist for gay people in Cameroon, describing this merely as "claimed" by Mr C, without giving any apparent consideration to the press reports of Mr C's significant activities in this field in Cameroon. 50 As such, ultimately the appellant is "left to guess" why the Tribunal rejected Mr C's evidence and whether, if at all, the Tribunal engaged intellectually with that evidence. Applying the principles earlier referred to, it follows that the Tribunal has failed to engage in an active intellectual manner with the evidence of a critical witness and has thereby fallen into jurisdictional error. (Emphasis added.) 48 In this appeal, the evidence of Mr X was corroborative. He gave detailed evidence about when he met the appellant, how their relationship started, when it started and when their relationship became sexual. All of such evidence was consistent with that of the appellant. But Mr X's evidence was not mentioned in the Tribunal's reasons at places where it should at least have been mentioned and evaluated. The same observation, though perhaps to a lesser degree, applies to the two witnesses who gave evidence about the appellant and his partner. 49 In DAO16, the Full Court considered findings of the Tribunal that a person who claimed he was homosexual 'would do anything necessary to achieve a favourable immigration outcome'. In that case, the Tribunal did not accept that the applicant's preparedness to engage in some sexual experiences with men established that he was homosexual or that he would pursue a homosexual lifestyle upon his return to India. A number of witnesses were called, including sexual partners. Again, the Tribunal found, due to credibility findings about the applicant, it could not rely upon the corroborative material, considering it could be fabricated. The Tribunal there made no findings as to why some of the witnesses had been prepared to fabricate their evidence. It said it was unnecessary to make findings about why they might be prepared to do so. No attempt was made to analyse the evidence or explain why it was fabricated. It was held by the Full Court that the reasoning was unreasonable. The Court said (at [39]-[41]): 39 The question then arises as to the reasons for rejecting the evidence of the four "independent" witnesses. Mr G's evidence was rejected by the [Tribunal] on the basis of the bare assertion that "the applicant's claims in his statement that Mr [G] wants him to be his 'husband' [are] indicative of his attempts to fabricate evidence of their relationship" ([Tribunal] reasons at [70]). However, that does not disclose a rational explanation. There is nothing so inherently implausible in a claim that Mr G wanted the appellant to be his husband that the mere making of the claim was indicative of fabrication. Indeed, Mr G gave evidence that he wished for a long-term relationship. Furthermore, the [Tribunal] made no finding as to why Mr G had (on its findings) been prepared to fabricate claims for the appellant and expressly declined to do so on the ground that it was unnecessary ([Tribunal] reasons at [70]). 40 As to the remaining three witnesses, there was no attempt by the [Tribunal] to analyse their evidence and explain why it was fabricated. As such, it would appear that the [Tribunal]'s findings in this respect rested again on the proposition that the appellant's false claim to have been in a serious sexual relationship with Mr R had so 'poisoned the well' that no corroborating evidence could be accepted. However, there was no evidence of any connection between these four witnesses and Mr R, or of any connection between them and any other applicants for protection visas. In those circumstances, no logical, rational, or probative basis can be discerned for the finding that the evidence of the so-called "independent" witnesses was false. (We note that, in so finding, we do not suggest that the findings with respect to the other witnesses, including Mr R, were not without their own difficulties.) 41 The primary judge failed to address whether the [Tribunal] erred in dismissing the evidence of the 16 witnesses and thereby fell into error. For the reasons we have given, his Honour ought to have found that the Tribunal's decision was tainted by jurisdictional error on the ground that there was no logical, rational, or probative basis for the finding that the evidence of these four witnesses was fabricated. (Emphasis added.) 50 Further, in DAO16, the appellant had subscribed to a 'gay newsletter' some two years before his protection application. The Tribunal in that case decided the subscription was an act carried out for the purposes of strengthening his claim, even though the act was two years before his protection visa application was made. In DAO16, the Full Court found that to be a conclusion that lacked an intelligible foundation. 51 In this case, it is argued for the appellant there is a further very important piece of corroborative evidence, in addition to the statutory declarations of Mr X, Mr Y and Ms Z, which the Tribunal did not have regard to, namely, the Facebook page 'likes'. The appellant argues his circumstances are similar to those considered by the Full Court in DAO16. The appellant 'liked' a number of men on gay pages on his Facebook site and said in his evidence that he did so when he was studying at TAFE in Granville about three years ago, which would have been in 2012 having regard to the time at which the evidence was given. In this instance, the appellant had been studying at TAFE in Granville for 12 months prior to July 2012, so there was no doubt that the Facebook 'likes' were well before any claim for protection was lodged. He was actually challenged about travelling to Lebanon in 2013 after recording the Facebook 'likes'. The activity was carried out substantially prior to the application being made in February 2014. In those circumstances, the appellant says that a finding that the Facebook 'likes' were simply to support his claim is legally unreasonable. It was not put to the appellant that the actions were purely to strengthen his claim, nor was there any other evidence to suggest this was the only reason for the 'likes' It was another piece of corroborative material which was ignored, according to the appellant. 52 In essence, relevant to all grounds, the argument for the appellant is that while clearly there was mention of the alleged relationship between the appellant and Mr X, no consideration was given to its quality or nature. Further, there was no specific inquiry of Mr X or discussion in the Tribunal's reasons as to the quality or nature or extent of the relationship with regard to the sort of factors which are taken into account in other contexts in the Regulations. It is said the only possible conclusion is that because the appellant's evidence was rejected, the Tribunal considered the other witnesses must also have been fabricating their evidence, particularly the appellant's alleged sexual partner. This was the Tribunal's position even though there was no express adverse credibility finding against Mr X or at the very least no reason for rejecting his evidence was stated. There was simply the comment that there may be any number of reasons for people to lie to assist an applicant. 53 There are other authorities which may also not have been cited to the primary judge but are relevant to this consideration of principle. One is WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 where the Full Court (Lee, Moore and RD Nicholson JJ) said (at [27]): Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant's claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]). (Emphasis added.) 54 Further, in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638, Finkelstein J said (at [23]): It is only necessary to deal briefly with the second ground. The complaint is that the tribunal failed to "consider the corroborative evidence in the form of the Summons against the husband of the applicant and the Administrative Penalty Order, before making the adverse credibility finding". I take it to be a trite proposition that a decision-maker required to find facts, whether the decision-maker be a judge or an administrative official, must consider the totality of the evidence that bears upon the facts to be found. That requires the decision-maker to consider any direct evidence of the existence of the fact in issue together with any corroborative evidence that bears on that issue. This is nothing more than common sense. There may be circumstances where it is not necessary to pay due regard to corroborative evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] McHugh and Gummow JJ said "it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption". That proposition is no doubt true. But the circumstances for its application will be rare indeed. Even experienced advocates can only point to a handful of cases where a witness' credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based on that evidence alone and simply disregard any corroborative evidence. (Emphasis added.) 55 In my respectful view, there was a difficulty in how the Tribunal treated the primary corroborative witness in this instance. Clearly Mr X could give very detailed information about the relationship, all of which was capable of being tested. While the Tribunal's questioning was, I consider, more extensive than the appellant suggests, there was little questioning directed to what might be considered the normal indicia of relationships, such as those set out in reg 1.09A of the Regulations, including financial aspects of the relationship, the nature of the household, social aspects of the relationship and the nature of commitment, relevantly encompassing the degree of companionship and emotional support. The Tribunal did not try to tease out many of those things. A proper, realistic and genuine consideration of the relationship - the existence, the nature, the content of the relationship - would have required some analysis. Importantly, it would also require some discussion in the reasons regarding at least some of those topics. I stress that reg 1.09A could certainly not be a necessary check-list in the protection visa context, but at least affords an indicia of matters which the Minister himself normally regards as relevant when applicants are seeking to prove the existence of such relationships, at least in partner visa applications. Given the appellant's sexuality was 'at the core of his claims for protection' (as the primary judge identified) and the sexual relationship between the appellant and Mr X was clearly pivotal to the assessment of the appellant's sexuality, consideration of at least some aspects of the usual indicia of relationship could be reasonably expected to feature in the Tribunal's questioning or reasons. The absence of such speaks against a conclusion that the requisite consideration was given to the relationship. 56 In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165, McHugh and Gummow JJ stated (at [49]) that circumstances may arise where a Tribunal of fact may well treat what is proffered as corroborative evidence as being of no weight because the 'well has been poisoned beyond redemption'. The Minister argued in the Federal Circuit Court, as he did on appeal, that this is a situation in which the Tribunal reached adverse credibility findings against the primary appellant which were so stark and of such a magnitude (to paraphrase S20/2002) that such findings of adverse credit so 'poisoned the well' that the Tribunal was not required to give weight to the purportedly corroborative evidence which was proffered by the appellant. 57 The Minister argues that the well being poisoned beyond redemption is supported by the fact that throughout its reasons the Tribunal drew links between the claims made and the conclusions it came to about those claims. Further, the primary judge canvassed those findings in detail (at [51]-[63]) of her Honour's reasons, noting particularly (at [55]): Throughout the Tribunal's reasons, when the Tribunal was discussing this claimed relationship it referred to [Mr X] as the [appellant's] "claimed partner". It identified that the [appellant] claimed to be in a relationship with [Mr X]. While the Tribunal did not at all points in its reasons refer to the claimed relationship as a "sexual" relationship, it is apparent from reading the Tribunal's decision fairly and as a whole, in particular in light of the concluding part of paragraph 59 which referred expressly to the claim the [appellant] was "in a sexual relationship with his claimed partner", that the Tribunal understood that the relationship was claimed to be a sexual relationship. This is not a case in which there was an omission from the reasons of the claim that the relationship was a sexual relationship (cf SZSRS). 58 The Tribunal was entitled give such weight to the corroborative evidence as it saw fit. However, the Tribunal's conclusion that the appellant was not in a genuine sexual relationship with Mr X was one which could be reached only by completely rejecting the corroborative evidence of Mr X. This is not merely an issue of weight to be afforded to the evidence. Rather, the corroborative evidence was entirely disbelieved. Such a conclusion warrants reasons and yet the Tribunal's engagement with this evidence was quite limited. The following paragraphs are illustrative of the Tribunal's engagement (as reflected in its reasons) with the corroborative evidence with respect to the appellant's claims regarding his sexual orientation: 29. The Tribunal also noted that his claim to be bisexual was inconsistent with the (undeclared and undated) statutory declaration of … that the [appellant] provided to the Department in support of his claims. That statement claimed that the [appellant] is gay, he spends most of his time with guys, and he has never seen him with a girl or heard that he likes women. The Tribunal put to the [appellant] that this evidence, produced in support of his claims, indicated that he was not bisexual. In response, the [appellant] claimed that he only had a short-term relationship with him and did not tell him about his life. While that may have been possible (he told the delegate that he had a five month relationship with this person as set out in the decision record provided to the Tribunal), the Tribunal also notes that the [appellant] claimed (in his statement) to have experienced sexual freedom in Australia, and to have been open about himself and his sexuality in Australia. Further, another statutory declaration (by …) produced to the Department by the [appellant] also stated that the [appellant] was "gay". The Tribunal is not satisfied as to the [appellant's] claimed reason as to why the supporting evidence said he was gay as opposed to bisexual' and it considers that his supporting evidence undermines his claim to be bisexual. … 58. The [appellant] produced to the Tribunal an email showing that he had volunteered, about 2 weeks before the hearing, for a Mardi Gras workshop to assist with bunting. He had also produced statutory declarations to the Department … as well as the three witnesses who attended the hearing. These asserted variously that the [appellant] was homosexual; that he went to many parties to the gay club in Oxford Street Sydney; that he is proud to be gay; or that he is depressed and anxious because of the thought of returning to Lebanon; that he cannot tell his family or friends or return to Lebanon; that he is in a relationship with the witness [Mr X]. 59. As put to the [appellant], people can provide supporting evidence for a number of reasons, for example they may want to assist him so that he can stay in Australia. The Tribunal also put to the [appellant] that it could be that his claimed partner was actually a close friend (living together as flatmates, going out together as friends). Having regard to the Tribunal's concerns with the [appellant's] credibility set out above, the Tribunal does not accept that the activities undertaken by the [appellant] to suggest that he is gay/bisexual overcome its concerns about his credibility and claimed orientation: • attending a Mardi Gras workshop (after the delegate had noted in the decision record that there was no credible evidence of Australian activities indicating his sexual orientation); • going to some gay nightclubs in Sydney (as suggested by one statutory declaration); • posting some gay websites on his Facebook profile. The Tribunal notes the [appellant's] evidence that, apart from these gay/LGBT website postings, there are no postings or anything else on his Facebook page which would suggest that he is gay or bisexual; • The [appellant] has produced a number of photographs of him (and his claimed partner) and others in social settings and home settings, which show people having fun/relaxing/arms around each other, near a bed, whispering in someone's ear. The [appellant] said in his post hearing statement that the photos were mere evidence of his social activities and not intended to strengthen his claims. While the Tribunal is prepared to accept that the [appellant] and his claimed partner are friends, the Tribunal is not prepared to give these photos any weight in relation to the claim that the [appellant] is bisexual or homosexual or in a sexual relationship with his claimed partner. • Nor does the Tribunal consider that the assertions made by witnesses as to his claimed gay/bisexual orientation (including by his claimed partner to the counsellor) overcome the Tribunal's concerns. … 65. Considered cumulatively, the concerns the Tribunal holds about the [appellant's] credibility on these matters lead it to find that he is not a truthful, reliable or credible witness and that the account of events and fears on which his protection claims are based is false. The Tribunal considers that he is prepared to give false evidence in order to achieve an immigration outcome, namely to be granted a protection visa, and that he is prepared to rely upon false supporting evidence to achieve that aim. … 68. The Tribunal is prepared to accept that the applicant and his friends have taken photos which could suggest that the applicant is bisexual/gay; that he has attended some gay nightclubs; and that he has signed up for a Mardi Gras workshop for 2016. Although he claimed in his statement to have exhibited sexual freedom in Australia, the only evidence he produced of this (apart from statements of witnesses which the Tribunal has not given any weight) was the posting of the numerous gay websites on his Facebook profile. He told the Tribunal that there was nothing else on his Facebook pages to suggest that he was gay/bisexual. (Emphasis added, citations omitted.) 59 In both BZD17 (at [44]) and DAO16 (at [40]), the Minister had (as he has here) submitted that 'the well was so poisoned' that corroborative evidence was necessarily rejected. However, as was noted by the Full Court in BZD17 after referring to S20/2002, this does not mean that a finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectual way. 60 In DAO16, the Full Court considered it was necessary for the Tribunal to consider the evidence of 16 witnesses. In this instance, there were only three corroborative witnesses. The shortage of reasoning may in part be due to the limited questioning. While there was questioning of Mr X, it did not, in my view, enter into the sort of detail or topics which would be necessary to test the reliability of the evidence being given by Mr X about the relationship. 61 Even if the process of more detailed questioning and reasoning would not produce any adjustment to the view taken about the appellant's evidence, at least explaining why there was a rejection of the corroborative evidence would avoid a situation where an applicant would be left to guess as to why corroborative evidence was apparently not taken as being corroborative to the central issue. The corroborative evidence was material to the appellant's claims regarding his sexual orientation and core to his claims for protection. 62 As the Full Court noted in DAO16 (at [33] and the cases therein cited), circumstances in which 'the well will be poisoned beyond redemption' such that corroborative evidence can be completely dismissed, will be rare indeed. Being mindful of the need to avoid viewing the reasons with an eye too finely attuned to error detection, I am nonetheless not satisfied this is such a rare case. 63 Given the conclusion in relation to the adequacy of consideration of the corroborative evidence given by the witnesses, it is unnecessary to consider the complaint as to the alleged unreasonableness of the conclusion concerning the Facebook 'likes'.

CONCLUSION 64 In my view, the grounds of appeal, treated together, are correct. I would allow the appeal with costs. I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Migration Act 1958(Cth)ss 36(2)(a), 36(2)(aa), 65, 91R(3)

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