BXK19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 858

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

1. The applicant, a citizen of the Republic of India, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Migration Act) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

1. The applicant stated his claims for protection in a statement that accompanied his application for a Protection visa, in which he claimed as follows:[1]

(a) The applicant was born in India, and is a Sikh. His father, mother, and brother live in India, and the applicant is unmarried. The applicant came to Australia on a student visa in 2008.

(b) In 2010 the applicant attended a Diwali fair and met a "few gay peoples". Up until then, the applicant did not want to be seen or to associate with gay people openly because in India it is something that is looked down upon.

(c) The applicant's experience in attending the Diwali fair was an eye opener for him; he felt a sense of belonging and happiness talking and mixing with gay people. From then on, the applicant frequently met gay people and interacted with them.

(d) In 2011 the applicant visited a hotel in the city "which is famous for homosexual gatherings". Since then, the applicant has continued to attend events and gatherings related to the homosexual community.

(e) By mid-2013 the applicant was very much aware of his homosexuality, but he still did not express it openly amongst his community "fearing the reaction it would have".

(f) The applicant talked to his parents about his sexuality; they were horrified and said they would never support it. They were expecting him to go to India and marry a girl there. The applicant also consulted a religious Pandit, who told him there is no place for homosexuality in India.

(g) The applicant met a person, P, about five months before he made his statement, and developed a physical relationship with him. They developed feelings for each other and started living together. They both share the same fears about going back to India and living openly as gays. They would be harmed or even killed by fundamentalists and terrorist groups.

(h) The applicant also fears going back to India because his community knows about his sexuality and they believe it is disgraceful.

(i) There is no safety in India as anarchy and restlessness is on the rise, and the state does not have enough resources to cope with all the problems. The authorities will not support him as they believe gays are disgracing the religion of the country.

1. At his interview the applicant provided the delegate "two original scraps of a newspaper", one written in Punjabi, and the other in English.[2] According to the Tribunal, the newspaper clipping records a public notice which declares the applicant to be out of his father's control, and that the applicant's father disowned him.[3] The applicant told the delegate he received the scraps of newspaper from a friend in October 2015, but he did not forward them to his agent. The applicant further said that he did not know the date or name of the newspapers; and he was not aware that his father "had done this". The applicant also claimed that he had a sexual relationship with a neighbour in India which lasted for three or four years, and which his mother later discovered. That led to the applicant being shamed and physically beaten by his mother.[4]

1. At the hearing before the Tribunal on 15 February 2019 the applicant repeated the claim he made before the delegate that he had a sexual relationship with a neighbour in India.[5] The applicant also claimed that he spoke to somebody at a law firm and told her about his experiences and fears. The applicant claimed that he told this person about everything that had happened and she wrote it all down.
2. After the hearing, the applicant provided to the Tribunal further submissions together with photographs that depict the applicant at two clubs in Sydney posing with men (New Photographs).

1. The Tribunal was not satisfied the applicant is a homosexual for the following reasons:

(a) The applicant omitted from his written claims what the applicant had told the delegate, namely, that he had a sexual relationship with a neighbour in India which lasted for three to four years, and which was later discovered by the applicant's mother, resulting in his being shamed and beaten.[6]

(b) The applicant's evidence as to when his parents discovered his sexuality was unconvincing. On the one hand the applicant claimed before the delegate that his mother discovered he was engaging in same sex activity before he departed India; but, on the other hand, in his written statement the applicant implied that he only discussed his sexuality with his parents sometime after the middle of 2013.[7]

(c) The newspaper clipping the applicant provided to the delegate does not state the reason the applicant's parents disowned him, and, for that reason, the Tribunal found the clippings do not assist in determining whether the applicant is homosexual.[8]

(d) The applicant provided inconsistent claims about his relationships with other men in Australia. In his written statement, and before the delegate, the applicant claimed he had a relationship and lived with a man named P; but when the Tribunal asked the applicant whether he had any same sex relationships in Australia, the applicant said he had a relationship with G whom the applicant met in a gym in or about 2014 or 2015.[9]

(e) The Tribunal found the applicants evidence about his gay lifestyle in Australia to be general, lacking in detail, and unconvincing.[10]

(f) The applicant only raised his fears of returning to India because of his homosexuality on 2 April 2015, despite having arrived in Australia in February 2008; and the Tribunal considered the applicant has not adequately explained the long delay in making his claim for protection.[11]

(g) The New Photographs alone did not assist the Tribunal as to whether the applicant was homosexual.[12]

1. The Tribunal also noted the applicant, in his statement, claimed there is no safety in India, but further noted that such a claim appeared to have been made in the context of the applicant's claimed fears based on his sexuality. The Tribunal nevertheless considered and rejected that claim, as well as a claim based on the applicant's parents having disowned him.

1. The applicant, who is not legally represented, appeared at the hearing (which was conducted by video) with the assistance of an interpreter. I informed the applicant of the purpose of the hearing, and of the procedure to be followed, and that the hearing afforded the applicant the opportunity to make such submissions as he wished to make about why he believed the Tribunal's decision should be set aside. The applicant did not make any submissions, but said that he relied on the grounds stated in the documents he filed.

1. In the applicant's application for review he relies on two grounds (errors in original):
   1. That the Administrative Appeals Tribunal failed to take into account relevant factors and took into account irrelevant factors with regard to the applicant's homosexuality, effectively denying the applicant's claims for protection be sustained, and thereby incurred a jurisdictional error;
   2. That the decision of the Tribunal is unreasonable, in that the Tribunal rejected factual evidence of the applicant without a proper basis for doing so.
2. Ground 1 does not identify the factors it is claimed were relevant which the Tribunal did not take into account, or the factors it claimed the Tribunal did take into account that were irrelevant. For that reason alone ground 1 does not disclose any jurisdictional error by the Tribunal. In any event, I am satisfied the Tribunal did not fail to take into account any relevant factor, or that it took into account any irrelevant factor.
3. Ground 2 may be read as a claim that the Tribunal acted unreasonably in not accepting the applicant's claims that he is homosexual. So read, the ground cannot succeed. The Tribunal identified each of the grounds on which it relied for doubting and ultimately not accepting the applicant's claim that he is a homosexual. Each of the matters on which the Tribunal relied were matters on which it was reasonably open and rational for the Tribunal to rely for not accepting the applicant's claims; and I am satisfied that the Tribunal's ultimate finding that it was not satisfied the applicant is a homosexual was reasonably open to it for the reasons it gave.

1. The applicant has not demonstrated the Tribunal made a jurisdictional error. I therefore propose to dismiss the application.
2. The Minister applies for an order that the applicant pay the Minister's costs set in the amount of $5,000, which is less than the amount provided for in Part 1 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Rules) 2021 (Cth). The applicant submitted he would be unable to pay such amount without at least a payment plan.
3. An unsuccessful party's inability to pay the successful party's costs is not a reason for not ordering costs against the unsuccessful party, if it otherwise would be appropriate that the unsuccessful party pay costs. Having failed in his application, I am satisfied it is appropriate that the applicant pay the Minister's costs; and that the costs be set in the amount of $5,000.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.