DAL20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1228

The applicant observed that he had claimed to be bisexual. He had claimed that he had engaged in same-sex relationships in Sri Lanka (CB 119, 180 and 199-200 [80]). The Delegate's decision records the applicant as having claimed that (at least in Australia) he "did not engage with the LGBT community or have any same sex relationships out of fear of being found out" (CB 119). It also records the applicant as having claimed that he "fears he may also be targeted by the authorities and experience discrimination by the community due to his bisexuality becoming known, resulting in the loss of any support from friends and family and being charged and imprisoned" on account of "his previous same-sex relationships, as homosexuality is illegal in Sri Lanka" (CB 119).
At [88]-[94], the Tribunal had regard to country information indicating, inter alia, that although prosecutions regarding sexual orientation were rare, LGBTI members were "harassed, discriminated against, and assaulted with impunity by the authorities". Information regarding discrimination and abuse more generally was also considered. The applicant drew attention to additional information in the Department of Foreign Affairs and Trade (DFAT) report considered by the Tribunal regarding obstacles faced by "openly-gay couples" in relation to securing housing and accommodation, with this and other discrimination said to cause "many homosexual persons [to] seek to conceal their sexual orientation" (3.149 of the DFAT report). Attention was further drawn to 3.151 of the report, which referred to "many LGBTI individuals... hid[ing] their identity to avoid harassment".
The Tribunal reasoned as follows at [100]-[106]:
1. The Tribunal accepts the applicant is bisexual and has engaged in same sex relationships in Sri Lanka. There were inconsistencies in the applicant's evidence about when he had been involved in same sex relationships, having told the Department he had not been involved in same sex relationships since he married and later suggesting to the Tribunal he had been involved in same sex encounters in 2005 and 2006. The Tribunal accepts this may have arisen from a confusion regarding references to 'partners' as equating with more serious relationships and others as casual sexual encounters. Giving the applicant the benefit of any doubt, the Tribunal accepts the applicant may have had casual same sex encounters in Sri Lanka in 2005 and 2006. The Tribunal also accepts he may have had sexual encounters in 2010 but has not engaged in same sex encounters since that time. The Tribunal also accepts that consensual same sex activity is illegal in Sri Lanka.
2. However, the Tribunal does not accept on the evidence that there is a real chance the applicant would be seriously harmed on return to Sri Lanka based on his bisexuality or his previous same sex relationships. On the applicant's own evidence, he was active as a bisexual man in Sri Lanka from the age of 14 and did not come to the adverse attention of authorities on that basis while in Sri Lanka. He did not claim to have come to the attention of authorities since, but claimed his wife's family may report him to the authorities. For the reasons detailed above, the Tribunal does not accept that they would. Further, and in any event the Tribunal does not accept that, if they did, the authorities would act on such reports given the time that has passed since the alleged offence and country information suggesting such prosecutions are rare.
3. The Tribunal accepts the applicant desires to keep his sexuality private, however, the Tribunal finds that on the evidence, the applicant's fears of persecution by his wife's family are not genuinely held. Based on the delay in seeking protection and the failure to articulate any fear of harm on this basis over an 8 year period of interaction with the immigration system, the Tribunal does not regard it as credible that the applicant came to Australia due to fear of harm on that basis or that he feared harm on that basis as a result of threats commencing in 2010.
4. In any event, the harm the applicant points to as evidence of likely harm in the foreseeable future are telephone threats made to his mother, which have never been acted upon and his wife divulging details of his sexuality to his friends and family. As his family and friends are now aware of this information, it is not clear how further harm could be caused to the applicant on this basis.
5. The Tribunal finds that if the applicant were to return to Sri Lanka, he would continue to maintain privacy regarding his sexuality and engage in sexual relationships or encounters in a discreet manner, which is unlikely to draw the adverse attention of authorities. In this regard, the Tribunal notes the applicant has not engaged in LGBTI advocacy or community activities which might bring him to the attention to the authorities. He did not express any intention to do so in the future and the Tribunal finds that he would not do so.
6. The applicant was not arrested or detained when previously living in Sri Lanka. He has been able to study, work and conduct relationships without suffering serious harm. The Tribunal does not consider, given the DFAT country information, including the latest report which does not note any change to the way in which bisexuals are treated, that the circumstances have changed significantly since the applicant was last in Sri Lanka.
7. Based on the evidence, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of serious harm in the foreseeable future on the basis of his bisexuality or historical same sex relationships from his ex-wife's family, the UNP or Sri Lankan authorities.
The applicant submitted that the Tribunal failed to determine his claim that he kept his sexual orientation secret because of his fear of harm from the authorities and the community. The element of fear was submitted to have been a critical element of his claim, with the failure to address it meaning that the Tribunal failed to determine a claim on that basis. It was submitted that this resulted in jurisdictional error.
Further, and relatedly, the applicant submitted that the Tribunal erroneously used as the starting point of its enquiry that the applicant was discreet in relation to his sexual orientation, essentially looking at what he did to avoid persecution resulting from his sexual orientation. It was submitted that the Tribunal therefore failed to determine whether the fear of harm was well-founded, or if he faced a real chance of relevant harm because of his sexual orientation (and not by what he did to avoid persecution). It was submitted that the Tribunal thereby fell into the species of error considered in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 (Appellant S395).
In Appellant S395, it was found that the Refugee Review Tribunal (RRT) erred in relying upon an expectation that the appellants would act discreetly regarding their sexuality in finding that they did not meet the criteria for protection. The RRT failed to consider whether acting discreetly "was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly" (Appellant S395 at [35]). At [43], McHugh and Kirby JJ reasoned:
1. The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
At [87]-[88], Gummow and Hayne JJ considered:
1. The primary judge37 and the Full Court38 understood the Tribunal as finding that "[i]t is only if a homosexual couple force Bangladeshi society to confront their homosexual identity that they will encounter problems". That may be accepted. Both the primary judge39 and the Full Court40 held further, however, that the finding about how the appellants were likely to live on their return to Bangladesh supported the Tribunal's finding that the appellants' fears of persecution were not well founded. That is, the primary judge and the Full Court both read the Tribunal's reasons as finding that the appellants were likely to live in a way that would not cause Bangladeshi society to confront their homosexual identity.
2. This reveals the error made by the Tribunal. The Tribunal did not ask why the appellants would live "discreetly". It did not ask whether the appellants would live "discreetly" because that was the way in which they would hope to avoid persecution. That is, the Tribunal was diverted from addressing the fundamental question of whether there was a well-founded fear of persecution by considering whether the appellants were likely to live as a couple in a way that would not attract adverse attention. That the Tribunal was diverted in that way is revealed by considering the three statements in its reasons that are referred to earlier: first, that it is not possible to "live openly as a homosexual in Bangladesh"; secondly, that "[t]o attempt to [live openly] would mean to face problems"; and, thirdly, that "Bangladeshi men can have homosexual affairs or relationships, provided they are discreet". Nowhere did the Tribunal relate the first and second of these statements to the position of the appellants. It did not consider whether the adverse consequences to which it referred sufficed to make the appellants' fears well founded. All that was said was that they would live discreetly.
The Minister acknowledged that it was well established that the Tribunal must respond, by making findings, to a "substantial, clearly articulated argument relying on established facts": Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at 1092 [24] (Gummow and Callinan JJ). The Minister accepted that a material submission advanced to the Tribunal cannot be ignored: XFCS v Minister for Home Affairs [2020] FCAFC 140 at [21] (Moshinsky, SC Derrington and Colvin JJ). The Minister also accepted that the Tribunal was required to construe correctly and consider claims, and their component integers, made by an applicant or otherwise apparent on the material before the decision-maker: BEH15 v Minister for Home Affairs [2019] FCAFC 184 at [79] (Rangiah, Perry and Bromwich JJ).
However, the Minister submitted that the claim recorded in the Delegate's decision to have not engaged with the LGBTI community or engaged in same-sex relationships concerned the applicant's situation in Australia. The Minister submitted that the claim was not that the applicant had feared being found out and subjected to persecution in Sri Lanka, but that he was afraid of the information being used against him by his wife in family law proceedings concerning custody of his children. This, the Minister submitted, had been clarified before the Tribunal, with the applicant stating that he had told his wife about his same-sex encounters prior to their marriage, but had not disclosed his further same-sex encounters in Australia to her because he did not want her to "have this evidence" in the family law proceeding (at [84]-[87]).
Even if the reference in the Delegate's decision to the applicant's "fear of being found out" if he engaged with the LGBTI community or in same-sex relationships was a reference to the applicant's situation in Australia, it is clear enough that the applicant claimed to fear his bisexuality being discovered in Sri Lanka. The Delegate's decision at CB 119 also records the applicant claiming that he "fear[ed] he may also be targeted by the authorities and experience discrimination by the community due to his bisexuality becoming known, resulting in the loss of any support from friends and family and being charged and imprisoned though his previous same-sex relationships, as homosexuality is illegal in Sri Lanka". The applicant also referred to fearing being "killed, harassed, discriminated against or targeted" if he continued with his custody battle for reasons including the community and government learning of his bisexuality. In response to an invitation to provide information regarding bombings in 2019, the applicant expressed that "I will face [severe] difficulty due to me been a gay and by-sexual in Sri Lanka at this situation" and that "if this kind of attack happened places like my kind of people gathering (we are soft targets) would be a disaster since we treat like different to other communities in Sri Lanka" (at CB 180).
The applicant's references to modifying his behaviour due to a "fear of being found out" appear to have reflected, at least potentially, the applicant's articulated concerns regarding the custody battle as well as the applicant's articulated fears of "his bisexuality becoming known" more generally in Sri Lanka. The applicant's claims regarding the custody battle in this regard were, clearly enough, linked to the applicant's claims of what may happen to him in Sri Lanka. However, the applicant's claimed fear of being identified as bisexual was not limited to the situation regarding his ex-wife or her family.
The Minister submitted that the Tribunal dealt with the applicant's claimed fear of being targeted and discriminated against due to his bisexuality being known in Sri Lanka in two ways. The first was by rejecting, on the basis of credibility findings, that the applicant held such fears. The second was by finding, on the basis of country information, that any such discrimination he may face would not amount to a real chance of persecution.
However, the Tribunal made no clear finding that the applicant held no well-founded fear of being targeted or discriminated against if his bisexuality, due to open practice in the future, were to become known in Sri Lanka. Such a finding was not made through the Tribunal's finding at [102] that the applicant's fears of persecution by his ex-wife's family were "not genuinely held", or that he had not come to Australia due to a fear of harm on the basis claimed. I also do not accept that it was made at [96], where the Tribunal recorded putting to the applicant that societal pressures to remain discreet "may" be regarded as insufficiently detrimental to amount to persecution. Although the Tribunal considered that the applicant did not wish to be open "due to the shame it may bring onto his family, as well as his previous belief it would affect his custody case", this did not grapple with or exclude the possibility of a well-founded fear of persecution being another motivating factor for the applicant's future exercise of "discretion".
At [98], the Tribunal recorded that it had "put to the applicant that country information suggested that even if [his sexuality] were to become publicly known, the discrimination he may face does not amount to persecution". However, this did not amount to a finding that the applicant would not face relevant harm if his bisexuality were publicly known due to his open engagement in same-sex relationships in Sri Lanka. Although the Tribunal at [101] did not accept that the authorities would act on reports from his ex-wife's family, this was expressed to be "given the time that has passed since the alleged offence" as well as "country information suggesting such prosecutions are rare". This did not answer whether, if the applicant were to openly engage in future same-sex relationships in Sri Lanka, he may face persecution (or had a well-founded fear of this occurring).
The Tribunal's finding that the applicant did not face a real chance of serious harm, therefore, depended upon its finding that the applicant, following return to Sri Lanka, "would continue to maintain privacy regarding his sexuality and engage in sexual relationships or encounters in a discreet manner, which is unlikely to draw the adverse attention of authorities" (at [104]). As in Appellant S395, the Tribunal did not grapple with or determine whether acting discreetly "was a voluntary choice uninfluenced by the fear of harm if [he] did not live discreetly". It did not grapple with or determine "whether the modified conduct was influenced by the threat of harm". It therefore did not determine whether "the threat of serious harm with its menacing implications" constituted persecutory conduct.
I therefore accept the applicant's submission that the Tribunal fell into the species of error considered in Appellant S395. Jurisdictional error has been established on this basis.

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