AXD15 v Minister for Immigration and Border Protection

The notice of appeal 4 The notice of appeal is in the following terms: The primary judge erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question with regard to the sexuality of the appellant. Particulars (a) At [41] of the decision record of the Tribunal, the Tribunal accepted 'as plausible that the applicant has engaged in explicit sexual activities with other males in Australia.' (b) At [65] of the decision record, the Tribunal found 'as the applicant is not homosexual and that he has engaged in sexual activities with other males in bad faith - for the purpose of strengthening his protection claims, the applicant would not engage in sexual activities with other males in Egypt on his return.' (c) At [41], the primary judge observed that 'the particulars make it plain that the real gist of the [second] ground is, as explained above, that the Tribunal could not find that the applicant was not a homosexual because it accepted that he had had sex with men.' (d) At [42], the primary judge erred by finding '[t]here are, as I have said, many difficulties with the ground. It suffices to deal with the most obvious one. The difficulty is exposed by stating the underlying premise: all men who have sex with other men are homosexuals. It goes without saying that the applicant did not rely on any evidence to establish the truth of that premise. Rather, his counsel stated the proposition as though it were axiomatic. It is not. In truth, sexuality and sexual activity are two different things. Western literature alone reveals that people engage in sex with other people beings or objects for any number of reasons: money, power, obligation, expectation, procreation, advantage, attraction, experimentation, compulsion, enjoyment and boredom to name a few possibilities (not all exclusive of each other). A person's sexuality is neither confined to nor defined by the particular acts of sex in which a person engages. Thus, on the applicant's own case, he had sex with a woman (his wife) even though he was homosexual. That did not mean that he was heterosexual or bi-sexual. He may have had no particular sexual identity at all, or he may have been pansexual.' (e) At [43], the primary judge erred by finding '[o]nce this is understood, it is clear that the applicant's argument is based on a false premise and must fail. The second ground is rejected.'

The findings of the Tribunal 5 The findings and reasoning of the Tribunal were as follows. 6 The Tribunal noted that the delegate of the Minister cancelled the appellant's Subclass 866 (Protection) visa under s 109(1) of the Migration Act on the basis that the appellant did not comply with s 101. The issue for the Tribunal was whether that ground for cancellation was made out. 7 The Tribunal recited the circumstances leading to the s 107 notice. 8 The appellant first entered Australia on 31 March 2007 as the holder of a subclass 572 Vocational Education and Training Sector visa. He was granted a protection visa on 4 July 2011 on the basis of being homosexual and fearing persecution in Egypt. The Tribunal, at [10], noted that the protection visa was granted based on the following claims: He is homosexual and he has been in a long term relationship with his current partner, Nour, whom he met at university in Egypt. They have been partners for less than 12 months. Nour arrived in Australia prior to the applicant and at that time, they were partners. When the applicant arrived in Australia, they initially had some difficulties in re-establishing their relationship but six months later, they were again together. In December 2010, he was pressured to go to Egypt because his parents had arranged a wife for him. In Egypt, he told his family that he would never marry and he tried to explain his situation. Members of his family do not talk to him now. Being homosexual in Egypt was very difficult. There was a lot of pressure not to let anyone know and not to get caught by the authorities. There were a number of times when he was close to getting caught by people or the authorities which would have been very serious. If he were to return to Egypt, he would be killed by his family, members of the community or the authorities. He would not be able to continue with an open relationship and he would be forced to marry. Homosexuality is banned in Egypt. 9 On 28 August 2012, the Department received a subclass 309 Partner (Provisional) visa from a Ms F, sponsored by the appellant. In support of the partner visa application, Ms F provided copies of a number of documents, including a marriage certificate and a family register. The Tribunal said the family register showed that she and the appellant were married on 16 October 2009, approximately 17 months before the appellant lodged his application for a protection visa. 10 The subclass 309 application was refused and the Migration Review Tribunal affirmed the decision to refuse to grant the visa. During the hearing before that Tribunal, the appellant confirmed that he was married to Ms F in 2009, although he claimed that his father had forced him into that marriage without his knowledge or consent. He confirmed that he and Ms F had a religious marriage which was witnessed by immediate family. 11 The visa cancellation decision record noted that departmental records showed that the appellant had departed Australia for Egypt on 26 July 2011, three weeks after the grant of his protection visa. He returned to Australia on 23 October 2011. He further travelled to Egypt on 12 July 2012 and returned to Australia on 22 September 2012. 12 The Tribunal referred to the appellant returning to Egypt in 2011 when, he said, he got married to Ms F and they had a honeymoon. 13 The appellant was sent a notice of intention to consider cancellation of the protection visa pursuant to s 109 on 26 August 2014. The Tribunal then considered the appellant's response dated 16 September 2014. The appellant's former representative said that in 2009 the appellant understood that he was not married. Although the information provided was incorrect, the appellant never intended to mislead. In a statement of the appellant attached to his submissions to the Tribunal, amongst other things, the appellant apologised for having "lied about the 2009 marriage but this was because I was not married and did not think of myself as married". 14 The Tribunal referred to a number of explanations made by the appellant and stated, at [21], that the appellant's explanations were unconvincing. 15 The Tribunal referred at some length to the appellant's relationship with a man called Nour. The Tribunal found that the appellant had provided inconsistent information about a significant aspect of his claim, namely, the length of the relationship with Nour, raising doubts about his claims and credibility generally. 16 The Tribunal then considered the appellant's relationship with Ms F. The Tribunal said that it was satisfied that the appellant had provided inconsistent information about whether or not he was married in 2009, raising doubts about his claims and credibility generally. The Tribunal said that by failing to disclose the marriage of 2009, the appellant provided incorrect information in the application. The Tribunal was satisfied that the appellant did not want to disclose the 2009 marriage because that would have undermined his claims for protection based on homosexuality. The Tribunal indicated to the appellant that in the delegate's decision record it was noted that when Ms F was interviewed she stated that their relationship started in January 2011, which was about seven months before the grant of the protection visa on 4 July 2011. The Tribunal was satisfied that both the appellant and Ms F had gone to considerable lengths to withhold information about the 2009 marriage, raising serious doubts about the appellant's credibility and his claims of homosexuality. 17 The Tribunal accepted that in certain cultures, homosexuality was not accepted and that homosexuals can be ill-treated in various countries, including in Egypt. The Tribunal further accepted that one can be married and be homosexual as these were not mutually exclusive. However, the Tribunal was of the view that it was difficult to accept that the appellant made a decision to get married and lead a 'normal life' and that the claimed inner conflict with his sexuality was resolved soon after he returned to Egypt and three weeks after the protection visa grant. The Tribunal said the sequence and timing of the events indicated that this was implausible and indicative of the appellant's willingness to be untruthful in order to obtain a visa. 18 The Tribunal was not convinced or persuaded by the explanations and submissions about the appellant's return to Egypt on 26 July 2011. The Tribunal was of the view that it was particularly problematic that the appellant returned to Egypt three weeks after he was granted the protection visa. His return signified his lack of fear from anyone, including his family, which undermined the core aspects of his claims for protection. The Tribunal was satisfied that the fact that he had returned to Egypt raised serious doubts about his protection claims, particularly that he feared returning to Egypt on the basis of his homosexuality. 19 At [38], the Tribunal recorded that the appellant had told the Tribunal that he had videos and photographs depicting him being involved in explicit sexual activities with other men. He said that the Department had refused to take this material. The Tribunal indicated that it did not need to see the material and whilst it might be plausible that the appellant had been involved in such sexual activities, it would not necessarily mean that he was homosexual, and that the probative value of such material was doubtful. 20 At [40], the Tribunal said that the question before it was whether the appellant had provided truthful and accurate information when he applied for the protection visa. The Tribunal said that in consideration of the evidence as a whole, it was satisfied that the appellant was not a witness of truth. 21 At [41], a paragraph on which the appellant particularly relied, the Tribunal said that it appreciated that sexuality was complex and there may be a spectrum in one's sexual behaviour and preferences. It also stated that there may be times of personal uncertainties and confusion about one's sexual orientation. The Tribunal accepted as plausible that the appellant had engaged in explicit sexual activities with other males in Australia. However, in consideration of the evidence as a whole, the Tribunal did not accept that such activities meant that the appellant was homosexual. The Tribunal said that the appellant's claim of homosexuality formed the most fundamental ground for the grant of the protection visa. His responses to certain questions essentially indicated that he had never been married or been in a de facto relationship, that he was seeking protection so that he did not have to return to Egypt, that he was a homosexual in a long-term relationship, that he feared he would be killed and be forced to marry, that he would be mistreated by his family and others, and that he was not in contact with relatives in his home country. In consideration of the evidence as a whole, the Tribunal said, and given its concerns it had outlined regarding the appellant's credibility, the Tribunal did not accept that the appellant was or is homosexual. In consideration of the evidence as a whole, the Tribunal therefore found that the appellant had provided incorrect information in relation to his marriage and his sexuality and therefore, the Tribunal found, there was non-compliance with s 101 by the appellant in the way described in the s 107 notice. 22 The Tribunal then went on to consider whether the visa should be cancelled pursuant to s 109(1): cancellation in the present context was discretionary, as there were no mandatory cancellation circumstances prescribed under s 109(2). 23 At [45], the Tribunal said that it was satisfied that at the time of lodgement of the application for a protection visa in March 2011, the appellant was married in 2009 to Ms F, that he was not in a homosexual relationship with Nour, that he was not homosexual, and that he did not fear harm in returning to Egypt from any person or organisation. 24 At [51]-[52], further paragraphs in which the appellant particularly relied, the Tribunal considered the contention that the appellant was still a homosexual and he had had relationships with men throughout his stay in Australia, albeit secretly. He feared returning to Egypt on the basis of his homosexuality. The Tribunal said that while it had accepted as plausible that the appellant had been involved in sexual activities with men, the Tribunal was not satisfied that the appellant was homosexual. The Tribunal said that although it was not determining a protection visa refusal where the purpose of the appellant's conduct in Australia would be considered by the Tribunal, the Tribunal was satisfied that the appellant had engaged in sexual activities with other males in Australia for the purpose of strengthening his claims for protection and the Tribunal would, in that context, have disregarded that conduct. The Tribunal said that the appellant had engaged in those activities in bad faith and not because he was a genuine homosexual. 25 At [65], also a paragraph on which the appellant particularly relied, the Tribunal found that the appellant would not engage in sexual activities with other males in Egypt on his return. He would not do so not out of fear of harm, but because he was not a homosexual.

Judicial review in the Federal Circuit Court 26 The primary judge considered the application for judicial review, so far as presently relevant, at [42] of his reasons for judgement. The primary judge said that the appellant did not rely on any evidence to establish the truth of the premise underlying his submission: all men who have sex with other men are homosexuals. Rather, the primary judge said, the appellant's counsel stated the proposition as though it were axiomatic. The primary judge said the proposition was not axiomatic and, in truth, sexuality and sexual activity were two different things. On the appellant's own case, the primary judge said, the appellant had sex with a woman (his wife) even though he was homosexual. That did not mean, the primary judge said, that the appellant was heterosexual or bisexual. The primary judge said, at [43], that the appellant's argument was based on a false premise and must fail.

The parties' submissions on appeal to this Court 27 The appellant submitted that the adverse credibility finding by the Tribunal at [41] was affected by jurisdictional error as there was a sufficient lack of probative evidence or logical connection between the Tribunal's assessment of the appellant's credit and the material upon which it relied to make that assessment. Moreover, it was submitted, the Tribunal reasoned illogically or irrationally, or the findings lacked evident or intelligible justification. The appellant submitted that the Tribunal accepted as plausible that he had engaged in explicit sexual activities with other males in Australia, however the Tribunal erred by refusing to accept that such activities meant that the appellant was homosexual. The same error, it was submitted, appeared at [52] of the Tribunal's reasons. The appellant submitted that the Tribunal's finding at [65] was in error. The appellant submitted that the clear paradoxical problem with the Tribunal's reasoning was that the Tribunal was willing to accept on the one hand that the appellant had engaged in homosexual activities but refused to accept on the other that the appellant was homosexual or at least bisexual and as a consequence failed to properly examine whether the appellant was at a real risk of harm if refouled to Egypt, and deserving of protection in Australia. The appellant submitted that, given the acceptance by the Tribunal that the appellant had engaged in homosexual activities, this necessarily meant he is or was homosexual, or at least bisexual and as a consequence there was an insufficient logical evidentiary basis for the Tribunal to conclude that the appellant was not homosexual or bisexual and that there was not a real risk that he would suffer harm on the basis of his homosexuality or bisexuality if he were refouled to Egypt. 28 The appellant submitted that the primary judge was therefore in error at [42]-[43] of his reasons for judgment. 29 The Minister submitted that while the appellant's submissions asserted that the reasoning exhibited a clear paradox, this was clearly not so for the reasons which the primary judge gave at [42] of his judgment. The issue was not whether sexuality and sexual activity correspond in most cases, but whether it necessarily corresponded in any and all circumstances.

Consideration 30 I do not accept the Minister's submission that the entirety of the question was whether sexuality and sexual activity corresponded in any and all circumstances: that was the major premise, and the minor premise was whether sexuality and sexual activity corresponded in the appellant's circumstances. The Tribunal assessed the material at some length and found on the basis of the following factors that the appellant was not, as he claimed, a homosexual. First, in terms of importance to the reasoning of the Tribunal, was the appellant's return to Egypt in 2011 and his marriage to Ms F. The Tribunal said, at [34], that his return signified his lack of fear from anyone, including his family, which undermined the core aspects of his claims for protection and raised serious doubts about whether he feared returning to Egypt on the basis of his homosexuality. Second, was the appellant's marriage ceremony in 2009. At [45], the Tribunal found that, at the time of lodgement of the application for a protection visa on 14 March 2011, the appellant was married, he was not in a homosexual relationship with Nour and he was not homosexual. Third, were the inconsistencies in what the appellant had claimed or had said, for example about the length of the relationship with Nour. Fourth, the Tribunal disbelieved the appellant about his sexuality. Fifth, the Tribunal found, at [52], that the appellant engaged in sexual activities with other males in Australia for the purpose of strengthening his claims for protection and not because he was a genuine homosexual. I refer to these matters because there is extensive reasoning on the part of the Tribunal. Also, the Tribunal expressly accepted, at [31], that in certain cultures, homosexuality is not accepted and homosexuals can be ill-treated in various countries, including in Egypt. 31 I reject the appellant's submission that the authority on point can be found in SZFZN v Minister for Immigration & Anor [2006] FMCA 1153. In that case the Tribunal accepted the applicant's history of being "caught in flagrante" with his friend in his village, and that "his family suffered humiliation and his father's crops were later burned by locals". It also accepted that, when he returned to his village in 1996, "his friend's father stirred up local animosity because he wanted the applicant to go away". It also accepted the applicant's account of what happened in New Delhi. It appeared to have accepted, or assumed, that this revealed the applicant being publicly identified as a member of a "particular social group" of homosexuals within that term in the Convention definition. However, the Tribunal declined to find that the events in New Delhi revealed harm had been inflicted upon the applicant "for reasons of" that membership. The jurisdictional error found by M Smith FM was, as submitted by counsel in that case at [15], that the Tribunal must have overlooked or misunderstood that, on the proper understanding of the Convention definition, an underlying reason for an incident of persecution could provide the Convention characterisation of its "reason". The Tribunal must have thought that it was enough to characterise the immediate objective of the person who initiated the persecution, without taking into consideration the cause of his conduct. M Smith FM said, at [17], that the Tribunal's reasoning exhibited a clear paradox between, on the one hand, appearing to accept that the friend's father was impelled by his society's hostility to homosexuality when procuring persecution of the applicant, and, on the other hand, finding that the father's motivation was not "by reason of" the applicant's "membership of a particular social group". The Tribunal in that case provided no reasoning which addressed and explained how it could arrive at these paradoxical findings consistently with the test of causation required to be applied. M Smith FM considered that he should infer that the Tribunal made a significant legal error in its understanding of that test. 32 In my opinion, SZFZN has nothing to do with the present issue: as noted above the Tribunal provided extensive reasoning for its factual findings concerning the appellant's claims. It is also to be recalled that the Tribunal said that the appellant had engaged in homosexual sexual activities in Australia in bad faith and not because he was a genuine homosexual. 33 I also do not accept the relevance to the present question of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 and Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157; 190 FCR 23. In the former case, the paragraph on which counsel for the appellant relied, [81], seems to me to tend, if anything, against the proposition for which the appellant contends. Gummow and Hayne JJ said at [81]: Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense "discreetly") may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality. Insofar as Appellant S395/2002 was relied on for the proposition that the present Tribunal required the appellant to forego his sexuality, in my opinion the authority does not assist as here there was a finding that the appellant was not homosexual. It is that finding, on the basis only of the sexual activity of the appellant, which is the subject of the appeal. In the latter case, SZNWC, the principle for which it was cited by counsel for the appellant was, at [46] in the judgment of Perram J: Where a social group is found, as this one was, to exist independently of the punishment inflicted under the allegedly persecutory criminal law it is no answer to say that what is being punished is past acts rather than membership to that group. A law outlawing homosexual conduct discriminates against homosexuals; a law criminalising homelessness discriminates against the homeless; and a law criminalising drug use discriminates against drug users. Discrimination is, in each case, the very point of the law. But that casts no light on the present, anterior, question. 34 The appellant also relied on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[131]; [133] and Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 but those cases, for present purposes, although they identify principles, do not assist with the application of those principles on the facts found by the Tribunal in this matter. 35 I reject the appellant's submission that, given the acceptance by the Tribunal that the appellant had engaged in homosexual activities, this necessarily meant he is or was homosexual, or at least bisexual and, as a consequence, there was an insufficient logical evidentiary basis for the Tribunal to conclude that the appellant was not homosexual or bisexual and that there was not a real risk that he would suffer harm on the basis of his homosexuality or bisexuality if he were refouled to Egypt. In my opinion, the question of whether or not the appellant is homosexual was a conclusion of fact and was here based on an extensive evaluation by the Tribunal of the relevant evidence. I do not see how, as a matter of law and jurisdictional error, a person's sexual orientation may be determined by reference only to sexual activity with members of the same sex without any regard to the circumstances or frequency of that activity or without any regard to sexual activity with members of the opposite sex. This is what the appellant's submission requires. For completeness, I note that the references to the appellant being bisexual do not arise on his claims. 36 I reject the appellant's submission that there was a sufficient lack of probative evidence or logical connection between the Tribunal's assessment of the appellant's credit and the material upon which it relied to make that assessment. I also reject the appellant's submission that the Tribunal reasoned illogically or irrationally or the findings lacked evident or intelligible justification. 37 In my opinion, the Tribunal's findings of fact were not affected by any jurisdictional error.

Conclusion and orders 38 For these reasons no error on the part of the primary judge and no jurisdictional error on the part of the Tribunal have been made out. The appeal is dismissed, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.