Tribunal reasons
14 The Tribunal identified that credibility was a central issue in the case and the Tribunal needed to determine whether or not it accepted that the appellants were homosexual and in a homosexual relationship (at [23]).
15 The Tribunal summarised the principles applicable to the assessment of credibility, noting:
(a) at [24], that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims;
(c) at [25], that the Tribunal ought adopt a reasonable approach in the finding of credibility, referring to Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151;
(d) at [26], that if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt; and
(e) at [29], that the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant and is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, relying on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.
16 The Tribunal did not find the appellants to be credible witnesses and did not accept that they are homosexual and that they are in a homosexual relationship (at [30]). The Tribunal stated that it reached that conclusion for the reasons set out in its decision. The appeals concerns the legal rationality or reasonableness of those reasons.
17 The Tribunal set out each of the appellants' evidence concerning their background in Pakistan and their claims of being attracted to boys when they were younger and their awareness that being homosexual is not accepted in Pakistani society (at [31]).
18 The Tribunal recorded the appellants' evidence concerning their first sexual encounter as follows:
[32] The applicant indicated to the Tribunal that he has never had a relationship with a woman and has never had a sexual encounter with anyone other than [BFI16]. He commented that after he arrived in Melbourne in December 2009, he continued to access gay porn on his phone but did not seek to act on his gay orientation, commenting that he was in a new country, was living at his brother's home and did not know anyone. The applicant told the Tribunal that, from a couple of months after he arrived in Australia in December 2009, he shared a room with [BFI16] in a two bedroom unit, with his brother occupying the other bedroom. The applicant indicated that he first realised he had feelings for [BFI16] in 2010. He commented that he was new to Melbourne and [BFI16] looked after him, took him out for lunch and to McDonald's at night. He indicated that [BFI16] was really lovely and looked after him a lot.
[33] The applicant said that on 6 March 2010 he went out with [BFI16] to celebrate his birthday. They went to 'Retro' in the city where they had a few drinks, smoked and danced. The applicant commented that it was at this time that he thought that [BFI16] also had feelings for him, noting that he had also looked after [BFI16]. The applicant said they discussed if each other had girlfriends and liked girls and the applicant commented that they were really close at that time. The applicant indicated to the Tribunal that [BFI16] did not say that he was gay while they were talking at Retro and the applicant said that he did not ask [BFI16] at that time why [BFI16] did not have a girlfriend. The applicant said they got home late, after midnight. His brother was not at home because he worked at night at a nearby petrol station. The applicant said that [BFI16] initiated sex with him for the first time that night.
19 The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [33] - [35]).
20 The Tribunal sought to test that evidence by asking the appellants about their discussions immediately following their first sexual encounter and the period of time before their second sexual encounter. It needs to be borne in mind that the hearing occurred on 14 April 2016 and the events being investigated by the Tribunal occurred in March 2010, some six years earlier. This aspect of the Tribunal's reasons are items "a" and "b" of the appellants' amended notices of appeal. The Tribunal's findings are as follows:
[34] The Tribunal asked the applicant if, after having sex, he and [BFI16] talked that night about their sexuality and what they had just done. He replied they were a bit drunk so they didn't. The Tribunal asked whether they talked about it the next day. The applicant replied they just went about their normal routine. The Tribunal again asked the applicant whether he and [BFI16] talked about what had happened. The applicant responded that he was not sure as it was a long time ago, that they went about their normal routine and had 'Uni' as well. The Tribunal commented that this would have been a Sunday. The applicant again replied that it was a long time ago, 5 or 6 years now. The Tribunal found the applicant's responses in relation to this matter to be vague and evasive. The Tribunal suggested to the applicant that this was a pretty significant thing that had happened. The applicant commented that they wake up really late as well and his brother was always home in the daytime and they always have to sit together. The Tribunal asked if they went out to talk about it. The applicant said they didn't. The Tribunal asked the applicant when he and [BFI16] first discussed what had happened and what it meant for them. The applicant replied that they didn't discuss a lot about their future at that time and that he belongs to a really strict religious family. The Tribunal asked the applicant whether his brother worked the next night and whether they discussed things that night. He replied that he didn't remember what they discussed that night.
[35] The Tribunal also asked the applicant when he and [BFI16] next had sex. He replied that it was later on, a couple of weeks later. When the Tribunal queried whether he might have wanted to do it again quickly he replied not really as he was new and a bit scared as well and did not get comfortable straight away.
[36] When the same questions were put by the Tribunal to [BFI16], he said that that they did talk afterwards, commenting that they were very open with each other. He said they talked about what had happened that night and the next day as well. When asked whether the applicant's brother was there, [BFI16] said he probably was in the morning but then he left. The tribunal asked [BFI16] when he and the applicant next had sex. [BFI16] replied that he thought it was after 1 or 2 days or 2-3 days. When queried by the Tribunal whether they were not keen to have sex again the next day, [BFI16] replied that they did, but he was not sure and could not remember whether it was the next day or the night after that.
[37] When the Tribunal asked the applicant and [BFI16] about these differences in their accounts of the immediate aftermath of their claimed first sexual experience, [BFI16] commented that they thought they discussed what had happened later that night or the next day. In relation to when they next had sex both the applicant and [BFI16] commented that it has been 6 years and they only remember 60-70 per cent of what happened. [BFI16] commented that in the morning the applicant's brother was home so in the night-time they spoke about it. The Tribunal does not accept the applicant and [BFI16]'s explanation for the very significant differences in what they claim occurred after what would have been a momentous event in their lives, or their attempts to down play the significance of the differences in their accounts of what occurred. The Tribunal does not accept that the applicant and [BFI16] would not be able to recall two very significant details of what happened in the aftermath of what both claimed was their first experience of sexual intercourse and their first significant gay sexual experience, that is, when they discussed the implications for them individually and as a couple of what had happened; and when they next had sexual intercourse. In relation to the first issue, the Tribunal, as discussed with the applicant and [BFI16], finds it relevant that both claim they had gay feelings since they had been in high school, both claim that they had not had sexual intercourse before, both claim they did not know the other was gay before that night, and both claim they are from conservative families and a conservative social milieu which would strongly disapprove of their actions. They were also living with the applicant's brother who they claim is still unaware of the claimed relationship and who they did not want to know about the relationship under any circumstances. The Tribunal considers that, in these circumstances, there would be much that they would want to discuss with each other, and finds totally implausible the applicant's comments that the next day they just went about their normal routine and that he cannot remember when they discussed the implications of what had happened. In relation to the second issue, and again in the context of the circumstance of his claimed first experience of sexual intercourse and first gay sexual experience, the Tribunal finds it implausible that the applicant would not remember whether he had his second claimed experience of sexual intercourse with [BFI16] a day or two later or a couple of weeks later.
21 The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [36] to [39]). Significantly, in both decisions, the Tribunal found implausible BFH16's evidence that, after their first sexual experience, they went about their normal routine and BFH16 could not remember when they discussed the implications of what had happened nor remember when they next had sexual intercourse. The Tribunal did not find BFI16's evidence in relation to those matters to be implausible.
22 Next, the Tribunal recorded its investigation concerning the travel undertaken by the appellants back to Pakistan. This aspect of the Tribunal's reasons is item "c" in the appellants' amended notices of appeal. The Tribunal's reasons are as follows:
[38] The Tribunal asked the applicant about when in the claimed relationship he realised that he wanted to commit to a long-term relationship with [BFI16]. He indicated that it was probably about a year later, commenting that they were always together, were really committed and really loved each other and wanted to live together for the whole of their lives. The Tribunal discussed with the applicant that while his statement of claims commented that 'since that day, our relationship continued to grow stronger' and that 'we always spend time together', the information he and [BFI16] had provided indicated that they spent a long time apart from February 2011 through to April 2013: around 38 weeks in total. The applicant commented that they did not have any choice, they had to go overseas for some emergencies, that [BFI16]'s mother passed away and his brother got married. The Tribunal discussed with the applicant and with [BFI16] that they went overseas for long periods: that [BFI16] was away on two occasions for 5 weeks and 10 weeks in 2011 and then a month after he returned to Australia the applicant departed for 9 weeks. Subsequently, in December 2012, the applicant departed for 8 and a half weeks and two days after he returned to Australia, in February 2013, [BFI16] departed for five and a half weeks. The applicant commented that they love each other but each has other things to do as well, that [BFI16] has family and his mother died, while the applicant lives with his brother and travelled with him on one occasion. The applicant commented that families push for them to stay a little longer and they also never wanted their families to think that they were more than friends so they never wanted to take the risk of going back together. When asked about the nature of his relationship with the applicant, [BFI16] said they do everything together, from getting up in the morning until going to bed at night-time. He indicated that he had felt that way since before their relationship was 12 months old. When asked about the pattern of overseas travel [BFI16] commented that they planned not to go together as they would have an urge to meet each other. He commented that when his mother died on 14 September 2011, he had to stay for 5-6 weeks to adhere to Islamic rituals. When the Tribunal queried with [BFI16] why that required him to be in Pakistan for 10 weeks, [BFI16] indicated that his father had to arrange his ticket home. While the Tribunal accepts that the applicant and [BFI16] would each have had family obligations which would have required them to travel back to Pakistan, the Tribunal finds the length of stays away (three of 8-10 weeks) and the pattern of travel (no overlap, departures of one shortly after the other returned to Australia) does not support the assertion that the applicant and [BFI16] were in a relationship at that time. In this regard, the Tribunal notes that [BFI16] indicated that, apart from his mother, who died in September 2011, he was not close to his family. The Tribunal considers that, had [BFI16] wished to be with the applicant, he could have shortened his periods of time overseas or travelled at the same time as the applicant on some occasions, to minimise the time they were apart. Noting that the applicant and [BFI16] lived in a two bedroom apartment with the applicant's brother for over four years while they claim to have been in a gay relationship, and, as discussed with the applicant, noting from the Tribunal's personal experience that Pakistan is a highly sex segregated and patriarchal society where it is common for men to be in each other's close company, without that raising any queries about their sexuality, the Tribunal does not accept as valid the applicant and [BFI16]'s assertions that they did not wish to travel at the same time as it might raise suspicion that they were in a relationship, or that they might have the urge to meet each other and this might arouse suspicions about the nature of their relationship.
[39] The Tribunal also discussed with the applicant and [BFI16] the findings of the delegate, as detailed in his decision record provided to the Tribunal by the applicant, that they had provided inconsistent commentary to the delegate regarding how often they contacted each other when one or the other was travelling overseas. The decision record states that [BFI16] indicated that they talked by phone every day or every second day, while the delegate considered the applicant was evasive in his responses, at one stage indicating that that they were in contact once a week, twice a week or once every two weeks, and when pressed that there was quite a range in his statement, commenting that it was not a lot and it could not be said that they talked every day or every second day. The applicant and [BFI16] commented that once every second day is the same as twice a week. The Tribunal finds that the applicant and [BFI16] did provide quite inconsistent information to the delegate regarding how frequently they spoke with each other by phone while they were apart, and considers this is further evidence that indicates they were not in a relationship at that time.
23 The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [40] - [41]).
24 The Tribunal then recorded its findings concerning the appellants' evidence about attending gay venues in Melbourne, particularly a club called the Robert Peel in Collingwood and a gay sauna called Subway Sauna in Flinders Street Melbourne. This aspect of the Tribunal's reasons is the subject of items "d" and "e" of the appellants' amended notices of appeal. The Tribunal's findings were as follows:
[40] The Tribunal also found the applicant and [BFI16]'s claims to wish to keep their relationship a secret and to not risk anyone finding out about it to be inconsistent with their claim to frequent a gay club, the 'Robert Peel' in Collingwood, and to have attended a gay Sauna, the 'Subway Sauna' in Flinders Street Melbourne. Indeed, they claim that the only person who knows they are in a gay relationship (initially referred to as Dawood but subsequently identified as Mr [confidential redaction]) knows this because he saw them together at these venues. The Tribunal discussed with the applicant's that it had 'googled' the Subway Sauna and that it was clear from the website that it is an establishment that caters for casual gay sexual encounters. The applicant and [BFI16] agreed this was the case but [BFI16] commented that you can also just go there for a massage, spa or sauna. The website makes clear that the massages are a non-sexual service, but, as the Tribunal discussed with the applicant and [BFI16], it is also clear from the website and other material regarding gay saunas in Melbourne that it is a place where they would likely be propositioned for sex by other men. The Tribunal asked the applicants why, given what they had told the Tribunal about the nature of their claimed relationship (that it is an exclusive relationship and they have never engaged in casual sex), they would want to put themselves in such a situation, when they could get a massage from a non-gay establishment. The applicant commented that there are private rooms for sex and people can't force you to have sex. As noted above, the Tribunal finds this claimed behaviour, deliberately putting themselves in a identifiably gay male environment, including one which facilitates casual gay sexual encounters, where they have no control over who they might encounter or be seen by, is at odds with the applicant and [BFI16]'s claims that they did not want to take any risks lest anyone should become aware of their gay relationship and their families might find out. The Tribunal considers that the applicant and [BFI16] have made references to these establishments in an attempt to create a 'gay profile' for the purposes of supporting their claims to protection, but does not consider that this is a genuine profile. Similarly, the Tribunal finds it contradictory that the applicant, while stating that he does not wish to take any risks that someone might find out that he is gay or in a gay relationship with [BFI16], would keep photos on his mobile phone of he and [BFI16] mixing with patrons and entertainers at a gay club. The Tribunal also finds it incongruous that, if the applicant and [BFI16] attended The Peel gay club in Collingwood, they would not have made any gay friends apart from Mr [confidential redaction]. When asked why this was the case, the applicant indicated that, while they talk to people casually at the gay club, it is not in his nature to have too many friends. When asked this question [BFI16] said that they speak to people sometimes but do not make them friends and that some people are like that.
25 The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [42]).
26 The Tribunal made a number of other findings that are not challenged in these appeals. First, the Tribunal found it difficult to accept that the appellants, if they were committed to a homosexual relationship together, would have continued to live with BFH16's brother for a period of over four years where they had to hide their relationship every day, particularly in circumstances where BFI16 ceased studying in July 2011 and BFH16 ceased studying in March 2012 and both were working and had the financial means to support themselves (at [41]). Second, the Tribunal took into account the fact that, following the expiry of their student visas, the appellants applied for graduate visas and appealed an adverse decision in the Migration Review Tribunal until April 2013. It was only after the failure of the review application that the appellants applied for protection visas (at [42]). Third, in reaching its decision, the Tribunal did not consider that a psychologist's report filed on behalf of the appellants, or a statutory declaration made by a friend of the appellants, added weight to the appellants' claims (at [44] and [45]).