For the reasons set out above, the appeal must be dismissed. There appears to be no reason why costs should not follow the event. I will make orders accordingly.
The Court is grateful to Mr Reynolds and to Mr McDonald-Norman for acting for the appellant on a pro bono basis.
[2]
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.
Parties
Applicant/Plaintiff:
SZTSA
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs [2025] FCA 1330
Legislation Cited (1)
Court Rules 2011
Cases Cited (21)
On 20 April 2011 the appellant, a citizen of Mongolia, applied for a protection visa. That application was refused and the refusal decision was upheld on review. On 31 July 2013, the appellant made a further application for a protection visa, based upon complementary protection claims under s 36(2)(aa) of the Migration Act 1958 (Cth). On 5 December 2014, a delegate of the first respondent Minister refused that application under s 65 of the Act.
The appellant then applied to the second respondent Tribunal for review of the 5 December 2014 decision. On 27 January 2017, the Tribunal affirmed the 5 December 2014 decision, and published its reasons for doing so: 1421008 (Refugee)[2017] AATA 155(T).
The appellant applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal's decision. The Circuit Court dismissed that application: SZTSA v Minister for Immigration[2019] FCCA 2967. From that decision, the appellant appeals to this Court.
The appeal has been conducted by reference to an amended notice of appeal, which was filed by consent after the appellant obtained pro bono representation.
For the reasons developed below, the appeal must be dismissed.
The first aspect of the first ground of review is a contention that the Tribunal failed to consider claims made to it. The appellant contends, in essence, that the Tribunal failed to consider whether people in Mongolia might inflict significant harm on the appellant because such people perceived that the appellant was homosexual or bisexual by virtue of his past or future sex with men, or his Hepatitis C, and might harm him for this reason. The appellant submitted that a person may be at risk because they are perceived as bearing certain characteristics, regardless of whether they actually bear those characteristics.
The contention that the Tribunal failed to consider the risk to the appellant from others perceiving him to be homosexual or bisexual requires analysis of the Tribunal's reasons - in the context of the representations made to the Tribunal - in order to determine whether an inference should be drawn that the Tribunal erred in the manner contended.
In this regard, it is well-established that the reasons of the Tribunal are to be read fairly as a whole, and not construed minutely and finely with an eye keenly attuned to the perception of error: see, e.g., Collector of Customs v Pozzolanic Enterprises Pty Ltd[1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 v Minister for Home Affairs[2022] HCA 17; (2022) 275 CLR 582 at 604 [38] (Kiefel CJ, Keane, Gordon and Steward JJ); Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs[2025] HCA 36; (2025) 99 ALJR 1378 at 1382 [16] (Gageler CJ, Edelman and Jagot JJ).
In RCLN v Minister for Immigration and Citizenship[2025] FCAFC 113, Perry, Sarah C Derrington and Abraham JJ explained at [27]:
... the Tribunal's reasons must be read fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection[2015] HCA 50; (2015) 258 CLR 173 at [59]-[60]. Thus, it is well established that the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd[1993] FCA 456; (1993) 43 FCR 280 at 287)). As such, "acommonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).
Also relevant are the oft-cited observations of the Full Court of this Court (French J (as his Honour then was), Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593, at 604 to 605:
... The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised "with an eye keenly attuned to error". Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. . Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
I am not persuaded that the Tribunal failed to consider the risk of harm to the appellant that might have arisen from the perception of others that he is homosexual or bisexual. On a fair reading of the Tribunal's reasons, the Tribunal did assess such a risk and did so as follows.
First, the Tribunal considered the evidence as to the appellant's sexual orientation (T[28], [34] to [52]) and concluded that he was not homosexual or bisexual. In other words, the Tribunal did not accept the appellant's evidence on this central issue.
The Tribunal expressed this conclusion at T[51], [52], [73] and [74]. Relevant to this conclusion were the Tribunal's observations that: (1) the appellant's evidence about relationships was "scant, vague and lacking in specificity" (T[41]); (2) it was troubled by many aspects of the appellant's evidence (T[48]); and (3) the appellant gave little detail about his claimed bisexual lifestyle in Mongolia (T[49]).
Secondly, on the basis of that finding, the Tribunal made a further finding that the appellant was not at risk of harm from his family if he were to return to Mongolia (T[59] to [60]).
Thirdly, the Tribunal also considered information concerning Mongolia and treatment of homosexual and bisexual persons there (T[61] to [70]) and concluded that if - contrary to its earlier finding - the appellant was homosexual or bisexual, then, on the basis of that information, the appellant would not face a real risk of suffering significant harm if he were to return to Mongolia (T[75] to [78]).
Fourthly, as to the risk of harm to the appellant by virtue of a perception that he was homosexual or bisexual by dint of having contracted Hepatitis C, the Tribunal expressly addressed the appellant's claims concerning Hepatitis C and found that: (1) the appellant no longer suffered from Hepatis C as at the date of the Tribunal's decision; and (2) thus, he would not face a risk of significant harm for that reason (T[79]).
As the Tribunal found that the appellant was not homosexual or bisexual and that he no longer suffered from Hepatitis C, there was no factual basis for the claim that the appellant was at risk of significant harm by dint of his sexuality.
The second component of the first ground is the appellant's contention that the Tribunal erred by operating on the basis of a dichotomy between homosexual or bisexual persons who openly lived a "homosexual or bisexual lifestyle" and those that did not and asking itself whether the appellant lived or would live such a lifestyle.
I do not accept this contention.
In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs[2024] HCASJ 42; (2024) 99 ALJR 387 at 392 [27], Steward J explained:
(2003) 236 FCR 593
(1993) 43 FCR 280
(2022) 289 FCR 21
(1996) 185 CLR 259
(2022) 275 CLR 582
(2024) 99 ALJR 387
(2025) 99 ALJR 1378
(2015) 258 CLR 173
(2001) 206 CLR 323
(2018) 264 CLR 541
(2020) 95 ALJR 54
(2016) 253 FCR 496
(2021) 288 FCR 565
(2004) 78 ALJR 992
(2003) 77 ALJR 1165
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected
On no fair reading of the Tribunal's reasons did the Tribunal find that the appellant was homosexual or bisexual but was not leading a homosexual or bisexual "lifestyle". Rather, the Tribunal found that the appellant was not homosexual or bisexual.
For the same reason, I do not accept the appellant's submission that the Tribunal was acting upon the basis of stereotyping or unfounded or unstated assumptions as to how homosexual and bisexual persons apparently live.
The third component of the first ground is the appellant's contention that Tribunal's findings that the appellant did not identify as a homosexual or bisexual, and that the appellant's evidence supported the finding that he did not identify as a homosexual or bisexual, were findings made in the absence of evidence, illogical or irrational, in view of its findings regarding the appellant's homosexual experiences in Mongolia and Australia and the appellant's evidence that was accepted by the Tribunal.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 3; (2022) 289 FCR 21 at 27 to 28, Allsop CJ, Besanko and O'Callaghan JJ explained:
The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": SZDMS240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds:Minister for Immigration and Multicultural and Indigenous Affairs v SGLB(2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[2003] HCA 30; (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.