FMK24 v Minister for Immigration and Citizenship [2026] FedCFamC2G 14

I fear for [the applicant's] safety and for his life if he was forced to return to Kenya. There are many people in our family who are not happy with the way that [the applicant] is and would harm him for this. In particular, his aunt on his father's side and many of the uncles. [The applicant's] mother also does not seem happy about [the applicant]. I do not know what her reaction would be if [the applicant] was to go back to Kenya but I know it would not be positive.

1. The applicant says that Aunty J's evidence is a global appreciation of her understanding of his sexuality. He says that the rest of his family is hostile to him and that Aunty J is the exception. It was contended on behalf of the applicant that Aunty J's evidence was independent, from a family member who has known the applicant his entire life and was critical in testifying as to his sexuality and the consequences for him in Kenya.
2. The applicant says that the Tribunal's analysis of Aunty J's evidence is internally inconsistent and was irrationally discounted. The applicant focuses on the Tribunal's reasoning that:

On its face, J's evidence was largely consistent with the applicants. There were inconsistencies, for example, the failure of the applicant to have claimed that he ever disclosed his status as a gay man to J compared with his having discussed this with J on two separate occasions. Those inconsistencies do not, in my view, of their own undermine the credibility of the applicant's claim.

J clearly cares for her nephew and is desirous of his remaining in Australia. Based on my conclusions about the applicant's credibility together with the inconsistencies between his evidence and that of J, I am not prepared to place significant weight on J's evidence. I have doubts about the credibility of J's evidence. I am not prepared to attach any weight to J's evidence.

1. The applicant contends that the Tribunal's reasoning is illogical, because the Tribunal went from implicitly accepting Aunty J's evidence, to not being prepared to place significant weight on the evidence, then to doubting the credibility of the evidence, then to being not prepared to attach any weight to the evidence. The applicant also submits that Aunty J's evidence is either plausible or not - and it is his case that there is nothing inherently implausible about Aunty J's evidence.
2. The applicant also submits that the Tribunal made an unwarranted assumption, an "implicit slur" on Aunty J's evidence, rejecting her evidence simply because of her family association with the applicant when it observed that:

J clearly cares for her nephew and is desirous of his remaining in Australia.

1. The applicant also says that Aunty J's evidence cannot be accepted and then dismissed because of the Tribunal's adverse credibility assessment of the applicant's evidence.
2. Against this position, the Minister has emphasised the touchstones of legal unreasonableness - that a court should be slow, although not unwilling, to interfere in an appropriate case. The Minister also says that the ground of review is a complaint about different findings and an attempt to impermissibly review the merits of the Tribunal's findings.
3. It was submitted on behalf of the Minister that there is nothing illogical or irrational in the way the Tribunal assessed Aunty J's evidence when the Tribunal's statement of decision and reasons is read as a whole. The Minister also submits that in the context of the Tribunal's analysis of the central issue, that being whether the applicant identified as a gay man or not, nothing materially turned on whether the Tribunal placed significant weight or no weight on Aunty J's evidence and in that way, the complaint is no more than a complaint about the Tribunal's findings.
4. In addition to considering Aunty J's witness statement, the Tribunal took into account the oral evidence given by Aunty J that she began suspecting the applicant was gay in around 2013 due to his close relationship with C, but noted that aspect of her evidence to be vague. In any event, Aunty J's evidence was that it was not until the applicant told her in 2018 that he was gay that she knew he was gay. The Tribunal went on to conclude that other than the disclosure by the applicant, Aunty J did not provide any credible or persuasive evidence about why she suspected the applicant was a gay man prior to 2018.
5. The Tribunal considered Aunty J's evidence went to the issue of the applicant's disclosures to people in Kenya about being gay. In particular, in the overall assessment of the applicant's credibility and reliability, the Tribunal set out that it raised the inconsistency between the evidence given by the applicant to the Tribunal that he had told his mother he was gay, but said at the interview with the Delegate that he had not confided this fact with anybody in Kenya.
6. The Tribunal footnoted this observation with an extract of the Delegate's decision that recorded:

"... [t]he applicant was asked if they told the family about their sexual orientation and they replied that they did not tell anything to their mother or siblings but they discovered themselves." The Delegate's summary is, in my view, an accurate summary of the applicant's claims at the interview.

1. In his statement dated 22 February 2024, the applicant said about his mother:

Approximately a few months after the attack my mother told me that she had heard a lot of people in the town were saying that the attacks were because I was gay. The way she raised this with me suggested that she did not approve of either my sexual orientation or my gender identity and was warning me to change for my safety.

1. The Tribunal considered that the applicant's evidence about whether he confided in anyone in Kenya was at best ambiguous and that the ambiguity remained at the hearing. The Tribunal assessed Aunty J's evidence about the issue as:

... less ambiguous, clearly indicating that the applicant proactively disclosed his sexuality to them. I note that the applicant did not claim to have told J that he was a gay man. In response, Ms Emerson pointed to a passage in the applicant's statement about having "a supportive aunty J". Yet, neither the statement or the applicant's evidence during the first hearing, expressly claim to have told J about his sexuality.[6]

1. When read in isolation, the Tribunal not being prepared to place significant weight on Aunty J's evidence and doubting the credibility of it, to not being prepared to attach any weight to Aunty J's evidence is inconsistent.
2. However, the Tribunal's assessment of Aunty J's evidence in paragraphs [34] - [38], [57] and [58] and [70] of the statement of decision and reasons indicates that the Tribunal considered and grappled with the nature, content and quality of the corroborative evidence of Aunty J given both in writing and orally and assessed and weighed it with all of the other evidence.
3. When read in the complete context of the statement of decision and reasons, I do not consider that the extent of any internal inconsistency (and to that end any lapse of logic) is so lacking in a rational foundation that the Tribunal's state of satisfaction in assessing Aunty J's evidence is one that no rational or logical decision-maker could reach.
4. It was a matter for the Tribunal to assess and weigh Aunty J's evidence against the applicant's in relation to the question of his disclosures to her about being gay. The Tribunal set out the relevant aspects of the evidence of both witnesses, together with the submissions made by the applicant's legal representative about the Tribunal's concerns about the inconsistencies in the evidence.
5. At the hearing I was referred to LPDT v Minister for Immigration and Multicultural Affairs[7] in relation to the consideration and use of corroborative evidence in cases where an applicant's evidence is not accepted as credible. In this case, the Tribunal expressly identified, considered and weighed the evidence given by Aunty J amongst all of the evidence. This is not a case where the Tribunal refused to consider the corroborative evidence led by the applicant at all because of the extent of credibility findings that had been made against him.
6. In my opinion it was open to the Tribunal to not attach any weight to the evidence of Aunty J which would, if accepted, have corroborated the applicant's account. However, that is not to say that any evidence of corroboration could be rejected outright. The Tribunal was required to consider the nature, content and quality of the corroborative evidence and assess and weigh it with all of the other evidence, before it was able to determine to reject it out of hand.[8] As I have found, in my opinion this is what the Tribunal did in this case.
7. The Tribunal disagreed with the submission made on behalf of the applicant that his evidence was consistent, compelling and genuine and that he had adequately explained and dealt with any issues raised. Where the credibility of the applicant's claims was the central issue, the Tribunal's concerns about the applicant's evidence were multi-faceted and included the following matters:

(a) The applicant's evidence was often inconsistent, vague, generalised and lacking in detail;

(b) The unclear nature of the evidence about the applicant's relationship with C;

(c) Accepting as the Tribunal did that sexuality is fluid, the applicant's inability to provide a cogent reason and explanation for his decision to identify as bisexual and 2021, but homosexual in 2024;

(d) The inconsistencies and ambiguity in the evidence about the applicant confiding in people in Kenya about his sexuality;

(e) The inconsistencies in the applicant's evidence about his attempts to hide his status as a gay man in Australia;

(f) The applicant's past behaviour toward women and his behaviour toward women over time undermines his claim to be a gay man;

(g) The applicant's failure to raise his sexuality initially with the Delegate when he applied for a review of the revocation of his student visa;

(h) The delay in applying for a protection visa, with the applicant claiming he preferred to seek reinstatement of his student visa, which the Tribunal considered contradicted his alleged fear of harm as a gay man in Kenya;

(i) The applicant's failure to raise sexuality as a mitigating factor in his criminal sentencing;

(j) Inconsistencies in the applicant's evidence more broadly, including hospital notes describing his recovery from the claimed attack in June 2018 by four men on himself and C as unremarkable, against the applicant's claim that he had spent three weeks in a coma after the attack on him, waking up in hospital and being told that he had a fractured bone in his head and internal bleeding, requiring him to undergo surgery;

(k) The lack of corroboration about his claims, including his relationship with C and his unconvincing and convenient explanations for his inability to provide corroboration.

1. The Tribunal's analysis of Aunty J's evidence was just one of reasons why the Tribunal did not accept the applicant's evidence as consistent, compelling and genuine. Further and in any event, after assessing and weighing the evidence of Aunty J (and E), the Tribunal went on to conclude that their evidence did not alleviate its concerns about the applicant's credibility. In my view, by this reasoning the Tribunal considered and found that even if it was to accept and have regard to the corroborative witness evidence, the varied and broad credibility concerns that it had about the applicant's evidence were not displaced.
2. Whilst the Tribunal expressed concern about the applicant's failure to lead evidence from his mother, I do not accept the applicant's contention that the Tribunal attacked him for not doing so. The Tribunal's finding was an observation made about the applicant not calling evidence from his mother and the applicant's explanation for why he didn't when he was asked about it at the hearing. The applicant said it would be difficult for his mother to have reception where she lives, but the Tribunal found the explanation did not account for the absence of a written statement.
3. The applicant's evidence about his mother as a witness went to logistical issues about calling her, not to her hostility. There is otherwise no evidence that applicant's family, other than Aunty J, are hostile to him, as it was submitted by the applicant. The applicant points to Aunty J's witness statement about the attitude of some of the applicant's family members to his sexuality, including his mother. I do not accept the applicant's submission that he had good reason not to rely on his family as witnesses because they were hostile to him and his sexuality, or that Aunty J's evidence left no doubt about how the applicant's mother would react.
4. Further, I do not consider that the Tribunal's finding that Aunty J clearly cares for the applicant and desires for him to remain in Australia is an unwarranted slur. That observation is consistent with Aunty J's written evidence that she fears for the applicant's safety and life if he was forced to return to Kenya and that she supports his decision to seek protection in Australia.
5. I am not satisfied that the Tribunal made an unwarranted assumption that no reasonable decision-maker could make, nor that it rejected Aunty J's evidence simply because she is the applicant's maternal aunt. In my opinion the Tribunal's analysis of Aunty J's evidence has an evident and intelligible basis.
6. I am also not satisfied that there is any evidence of irrationality in the Tribunal's reasoning process that is connected to the lack of direct communication between the applicant and Aunty J. As I have set out, the Tribunal assessed and weighed the evidence that it received about the applicant's disclosures about being gay in Kenya as being one of the many and varied concerns that the Tribunal had about the credibility and reliability of the applicant's evidence.
7. I am not satisfied that the Tribunal was irrational in the way it considered Aunty J's evidence as part of this assessment.

The applicant's evidence and the impact of his failure to apply for a protection visa on his credibility

1. The applicant contends that the Tribunal was irrational in taking into account his failure to apply for a protection visa in the assessment of his credibility, when he had the ability to apply for a student visa. The applicant has submitted that the student visa process allowed him to avoid having to confront the issue of his sexuality and that this was an obvious choice for him to make.
2. The Tribunal's analysis and findings specifically noted:

... Whilst he eventually contended before the Tribunal that he was a gay man, I note he did not raise his sexuality when seeking to have his visa cancellation revoked by the Delegate. It was only after the Delegate refused to revoke his cancellation that he raised the claim to be a gay man before the Tribunal when seeking a review of the Delegate's decision on the revocation. Again, there is no evidence that the applicant raised in mitigation his sexuality or struggles with accepting his sexuality, or his claim to past experiences of harm because of his sexuality as mitigating factors any sentencing proceedings. That failure is even more glaring for two reasons. First, the applicant relied on the 2018 attack and consequential injuries as a mitigating factor, albeit without suggesting it was motivated because he was gay. Second, the applicant claims that his offending was caused by his ongoing struggles relating to his sexuality,

...

... The applicant claimed he preferred to seek reinstatement of his student visa, which contradicts his alleged fear of harm as a gay man in Kenya. His failure to raise his sexuality initially with the Delegate in respect of the revocation undermines the credibility of his claim.

...

The applicant's delay in claiming to be a gay man raises concern about the credibility of his account. When initially seeking the revocation of his visa cancellation, the applicant did not mention his sexuality or any related fear of persecution.

In his initial submissions to the Delegate, when seeking the revocation of the cancellation of his visa, the applicant did not raise his sexuality ...

I also place weight on the absence of reliance upon his sexuality, struggles with accepting his sexuality, or his claim to past experiences of harm in Kenya because of his sexuality as a relevant mitigate a re-factor in his sentencing. Whilst the applicant did raise the attack that occurred in June 2018 in mitigation of his sentence, he did not claim that the attack was in any way related to his sexuality.

1. On this basis and as I have noted, the Tribunal found the circumstances suggested the applicant's claims to be a gay man may not be genuine, but in fact a retrospective addition to strengthen his case for protection. The Tribunal considered the applicant's explanation that he preferred to seek reinstatement of his student visa instead of applying for a protection visa did not convincingly account for the delay, finding that if the applicant genuinely feared harm due to his sexual orientation it would have been logical for him to prioritise a protection visa as a more permanent and secure solution, compared with a student visa.
2. I do not consider that the Tribunal's analysis shows any illogicality or irrationality. The Tribunal was entitled to have regard to delay in assessing the genuineness and depth of the applicant's alleged fear of persecution.[9] In BAX15 v Minister for Immigration and Border Protection,[10] Perry J said:

In my view, the appellant's delay in applying for a visa is not an irrelevant consideration. Rather, in line with the principles identified in the joint judgment in Yusuf, the significance attributed to that delay constitutes a part of the Tribunal's process of making a particular finding of fact upon which the Tribunal has acted, namely, in reaching a view as to whether it was satisfied that the appellant has a subjective fear of persecution and otherwise in assessing his credibility.

Nor do I consider that the Tribunal in having regard to this delay in reaching a view on these matters was acting unreasonably or irrationally. For example in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349, Heerey J said with respect to a similar line of reasoning:

...the applicant complained of the tribunal's taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicants alleged fear of persecution. It is a rational consideration open on the material.

1. Accordingly, I consider that the Tribunal was entitled to take into account the applicant's delay as part of its process of reasoning. In this context, the Tribunal was entitled to make findings about whether it was satisfied the applicant had a subjective fear of persecution in the overall credibility assessment that it made about his claims, evidence and the concerns it expressly raised.
2. I do not accept that there is anything illogical or irrational in the way the Tribunal assessed delay and credibility.

1. I do not consider that the ground of review has been established.
2. In these circumstances, I will dismiss the further amended application.
3. I will hear the parties as to costs if necessary.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Liveris.

[1] [2022] FCAFC 3 at [33] - [35].

[3] [2016] FCA 516 at [52] and [54] - [56].

[4] [2023] FCA 573 at [7] - [8].

[5] [2018] FCAFC 94; (2018) 263 FCR 292 at [36].

[7] [2025] FedCFamC2G 660 at [69] - [78].

[8] Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 at [36] at [38] (North and Lander JJ) and [50] (Katzmann J).

[9] CCW17 v Minister for Immigration and Border Protection [2018] FCA 1543 at [36] - [37].

[10] [2016] FCA 491 at [41] - [42]