DAO16 v Minister for Immigration [2018] FCAFC 2: Homosexuality & Legal Unreasonableness

Friday 2 February 2018 @ 9.19 a.m. | Legal Research | Immigration

On 15 January 2018, the Full Court of the Federal Court handed down a decision in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2. The Full Court, consisting of Justices Kenny, Kerr and Perry, found that there was no logical basis for the Administrative Appeal Tribunal’s ('AAT') rejection of certain evidence, and set aside the decision.  The case will now be reconsidered in the AAT.

Facts

The appellant is a citizen of India who is a Sikh, from a Sikh family. He initially arrived in Australia on a subclass 573 student visa on 20 December 2007 and was granted a second student visa which ceased on 9 March 2012. Following this, he applied to the Department of Immigration and Citizenship for a protection visa under the Migration Act 1958 (Cth) section 36(2) on 26 August 2011, claiming that he would be subjected to persecution in India due to his homosexuality.

Procedural History

The appellant's protection visa was refused on 16 November 2011. The delegate of the Department of Immigration and Citizenship based his reasons for this refusal on the grounds that he did not accept that the evidence supported the appellant’s claims that he would be persecuted in India. This decision was then affirmed by the then Refugee Review Tribunal ('RRT') on 23 April 2013.

The appellant made a second application for a protection visa on 19 May 2014 under the Migration Act 1958 (Cth) section 36(2)(aa). On 26 February 2015, the delegate again refused to grant the visa,  as he found that the evidence presented to him was contrived for the purpose of supporting the appellant’s claim. The appellant then applied for review of the second delegate's decision on 26 March 2015, noting evidence of a number of casual and long term relationships with men.

On 19 August 2016, the AAT wrote to the appellant inviting him to comment on adverse information. The appellant submitted evidence such as subscriptions and memberships of gay dating applications, websites and gay nightclubs. The AAT handed down its decision on 20 September 2016, which affirmed the second delegate’s decision. The grounds cited by the AAT were that the evidence presented was contrived, with the AAT finding that his relationships with men were the result of his desire to achieve a favourable outcome for his applications.

Following this, the appellant appealed to the Federal Circuit Court, where the primary judge gave ex tempore reasons for dismissing the application for judicial review from the decision of the AAT. The reasons were primarily based around a finding that the appellant had fabricated evidence relating to one particular relationship he had.

Decision of the Full Federal Court

The Full Federal Court allowed the appeal, finding that the Federal Circuit Court's decision contained legal unreasonableness, as there was no attempt by the AAT to analyse the evidence and explain why it was fabricated. Of the primary judge’s decision in the Federal Circuit Court, the Federal Court said:

“The primary judge failed to address whether the AAT erred in dismissing the evidence of the 16 witnesses and thereby fell into error. For the reasons we have given, his Honour ought to have found that the Tribunal’s decision was tainted by jurisdictional error on the ground that there was no logical, rational, or probative basis for the finding that the evidence of these four witnesses was fabricated.” [41]

The Federal Court further found that the primary judge failed to address the AAT's rejection of the evidence relating to the appellant’s membership of gay dating apps and websites, stating that the rejection appeared to be based on the initial rejection of the evidence between one particular relationship the appellant had:

“Secondly, the AAT’s finding at [73] that the appellant had acquired some membership cards and subscribed to a gay newsletter because he became aware that the skilled visa pathway was fraught with difficulties, was based expressly on its finding that several aspects of the appellant’s claims and evidence had been fabricated. As such, they are again traceable back ultimately to the AAT’s rejection of the evidence about the relationship between Mr R and the appellant. Yet, for example, there is no logical connection between the rejection of Mr R’s evidence and the email confirmation of the appellant’s subscription to a gay newsletter on 12 November 2009 well before the appellant met Mr R and indeed two years before his protection visa application was made while he was still on a student visa.” [44]

Responses to Decision

The appellant’s lawyer, Nilesh Nandan stated:

“The full court’s decision demonstrates a sensitivity to these issues and underscores … the appellate system provides effective safeguards for vulnerable protection visa applicants against unreasonable decision.” 

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Sources:

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2.

Ben Doherty, "Tribunal criticised after rejecting asylum seeker’s appeal over homosexuality," 18 January 2018.

Migration Act 1958 (Cth), available from TimeBase's LawOne service.

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