FEDERAL COURT OF AUSTRALIA

Abboud v Minister for Immigration and Border Protection [2018] FCA 185

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia dated 29 August 2017 be set aside.

3.    The decision of the Administrative Appeals Tribunal to affirm the decision not to grant the appellant a Partner (Temporary) (Class UK) visa be set aside.

4.    The matter be remitted to the Tribunal, constituted by a different member, for determination in accordance with law.

5.    The first respondent pay the appellant’s costs of the appeal and of the application to the Federal Circuit Court of Australia, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1    I have decided this appeal should be allowed on the basis that the decision-making process of the Administrative Appeals Tribunal miscarried in a manner constituting jurisdictional error. Whether the error is described as the failure of the Tribunal to properly satisfy itself about critical facts due to irrational or illogical reasoning (as claimed in the notice of appeal and in the application before the primary judge) or as a failure by the Tribunal to engage with the claims on the basis of the material before the Tribunal and thus a failure to fulfil its statutory obligation (which I also consider to be the case), I am satisfied the error is one which is properly described as jurisdictional. In concluding to the contrary, the primary judge erred (Abboud v Minister for Immigration & Anor [2017] FCCA 2047). It follows that the appeal must be allowed, the Tribunal’s decision set aside, and the matter remitted to the Tribunal for determination according to law. Given the nature of the Tribunal’s error I propose also to direct that the remitted matter be dealt with by the Tribunal constituted by a member other than the member who made the decision now under challenge.

2    The relevant facts are these. The appellant, who is female, applied for a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth). The appellant had arrived in Australia on a student visa. She later lodged a protection visa application which was rejected. She remained in Australia unlawfully from 19 December 2013 until 8 October 2014 when she lodged the partner visa application. The partner visa application was lodged on the basis that the appellant married an Australian citizen in Australia on 30 August 2014. The appellant’s husband, who was born in Lebanon, also arrived in Australia on a student visa. He later applied for a protection visa. According to the Tribunal, he was granted a protection visa on the basis of his homosexuality and associated fear of persecution in Lebanon.

3    The criteria which had to be satisfied for the appellant to be granted the partner visa were that the appellant be the spouse of an Australian citizen both at the time the application was made and of the decision and that the visa application be made within 28 days of the “relevant day” unless the Minister was satisfied that there are compelling reasons for not applying that criterion (cll 820.211, 820.221 of Sch 3 and cl 3001 of Sch 2 to the Migration Regulations 1994 (Cth). The appellant did not lodge the partner visa application within 28 days of the “relevant day” (a date which need not detain us), and thus did not satisfy this requirement. As a result, the visa could not be granted unless the Tribunal was satisfied that there were compelling reasons for not applying the 28 day lodgement criterion.

4    It is apparent that the Tribunal’s conclusion that there were not compelling reasons not to apply the 28 day criterion was based on its conclusion that the relationship of the appellant and her husband was not and never had been “a genuine, continuing and exclusive spousal relationship as envisaged by the Migration Act” (at [119] of the Tribunal’s reasons). Accordingly, the Tribunal found that the “parties’ relationship is not a compelling reason to waive the Schedule 3 criteria” (at [120]).

5    It follows that any jurisdictional error in respect of the Tribunal’s conclusion that the relationship of the appellant and her husband was not genuine necessarily infects the Tribunal’s conclusion that there were not compelling reasons not to apply the 28 day lodgement criterion.

6    On 19 January 2017 the Tribunal had written to the appellant to notify her of information that would be the reason or part of the reason to affirm the decision under review. The information concerned, in part, the sponsor’s protection visa application. In this letter the Tribunal said this:

•    If the sponsor is a homosexual and he has not told you, it is difficult to see how he can be committed to a genuine, ongoing and exclusive married relationship with you; or indeed how you can be committed to such a relationship when you are not aware that your husband is a claimed homosexual. In the Tribunal’s mind, you have a right to know if your husband is a homosexual and whether and how this will impact upon your marriage. It is difficult to see how the sponsor can have a commitment to his marriage to you when he has not told you about his claimed homosexuality. There is also a genuine question in the Tribunal’s mind, over whether the child of this marriage is the sponsor’s, given his sexual preferences, or even if it his biological child, whether he has an ongoing commitment to her upbringing and ongoing care.

Please comment on this information. This information is relevant to the review because depending upon your response, it may lead the Tribunal to form a view that your marriage with the sponsor is a marriage contrived for convenience and not conviction and that the marriage was entered into solely for migration purposes. This in turn may lead the Tribunal to find that you are not in a genuine, ongoing and exclusive spousal relationship, or that there are any compelling reasons to waive the Schedule 3 criteria, and affirm the decision under review.

7    The reference to “genuine, ongoing and exclusive spousal relationship” reflects the definition of “spouse” in s 5F of the Act which provides that a person is a spouse if they are married and “have a mutual commitment to a shared life as a married couple to the exclusion of all others” and “the relationship between them is genuine and continuing” (amongst other requirements that are not material to this matter).

8    In a letter in response the appellant’s solicitors said:

•    We are instructed by the review applicants [sic] husband that he wishes to keep homosexual desires in the past and that since meeting his wife he has fallen in love with her and has reformed. He now considers himself a heterosexual man who earnestly desires to keep his homosexual desires in the past.

We respectfully submit that the review applicants husband’s past sexual orientation would not disqualify the current relationship as being genuine. He claims that his past homosexual tendencies are no longer applicable in his life as he is now a married heterosexual man. The Tribunal should not demonstrate or be seen to demonstrate consternation in relation to a man who had past homosexual tendencies but has since reformed and his now in a genuine heterosexual relationship.

Furthermore, it is respectfully submitted that past homosexual desires and subsequently entering into a genuine heterosexual relationship should not be viewed as being mutually exclusive. It is not irrational or unreasonable for a former homosexual man to undergo a radical change in his sexual desires and now be fully in love and dedicated to his wife and family. The same also applies to the contrary, whereby a previously married heterosexual man, may subsequently leave his wife and family and enter into a homosexual relationship with another man.

The review applicant’s husband wants to keep his homosexuality in the past and is not comfortable in discussing this subject with his wife or any other third party. His reluctance to do so is merely attributed to a desire to escape from what he views as unvirtuous past conduct/desires and a validation of his current love and dedication for his wife and daughter. Furthermore, we are instructed that the review applicant’s husband is also motivated by a desire to avoid any unnecessary tension between himself and his wife by refraining from discussing his past conduct/sexuality. We submit that this situation is analogues [sic] to a married man or women being reluctant to discuss with their current partners their past relationships/sexual activities.

We respectfully invite the Tribunal to assess the genuineness of the relationship on the basis of the cogent evidence that is currently before the Tribunal, including the fact that they have a baby daughter and extensive evidence of cohabitation provided over a substantial period of time. The review applicant’s husband’s past claims of being a former homosexual should not in light of the explanation proffered in this submission (in terms of his sexual evolution), diminish the cogency of the pellucid and forceful evidence of the existence of a genuine relationship.

9    The material before the Tribunal included that the appellant and sponsor married in 2014 after becoming close from 2011 onwards and ran a retail business together for some time. The couple lived together since 2012 and had told friends they planned to have children but did not plan on having them immediately until they were told that the appellant would not obtain a partner visa unless she became her husband’s carer or they had children. The sponsor became stressed, anxious and depressed as a result of the prospect that his wife would have to return to Lebanon unless they had a child together immediately. By early 2016, after the Minister’s delegate had refused the application for a partner visa, the appellant became pregnant. The child was born on 15 November 2016. The sponsor is identified as the father of the child on the birth certificate. The couple and their child continued to live together. According to the appellant, her husband assisted her with the day-to-day upbringing of their daughter but would be unable to care for his daughter on his own as she had had been ill since birth and her husband was still suffering from anxiety and depression.

10    To explain why I consider the Tribunal’s reasoning miscarried in a manner constituting jurisdictional error it is necessary to record at some length that part of the Tribunal’s reasons under the heading “Homosexuality”. Before doing so it is also necessary to record that this section of the Tribunal’s reasons follows a statement (at [55]) that the Tribunal found the parties not to be credible witnesses and did not accept their claims for the reasons which then followed, the first of which is the section under the heading “Homosexuality”. As a result, the Tribunal’s credibility findings depended on its reasoning in respect of the genuineness of the marital relationship.

11    The Tribunal said this:

Homosexuality

56.    The Tribunal has considered the applicant’s submission in relation to his homosexuality, in particular his claims that he was a homosexual man but has subsequently “reformed”. The parties submit that the sponsor’s past sexual orientation would not disqualify the current relationship as being genuine and his past homosexual tendencies are no longer applicable in his life as he is now a married heterosexual man. The parties claim that these matters should not be viewed as mutually exclusive. The parties also submit that “it is not irrational or unreasonable for a former homosexual man to undergo a radical change in his sexual desires and now be fully in love and dedicated to his wife and family”.

57.    The parties further claim that the sponsor is uncomfortable talking about his past homosexuality and “unvirtuous past conduct/desires” and submit that the sponsor is motivated by a desire to avoid any unnecessary tension between himself and his wife by refraining from discussing his past conduct/sexuality.

58.    The Tribunal rejects all of these arguments for the following reasons.

59.    It seems to the Tribunal that the gay rights movement has, for decades, fought for the acceptance of homosexuality as a sexual orientation from birth, NOT something that the sponsor appears to be claiming is a matter of choice or will or accident. If the applicant can choose to be a heterosexual man, then presumably he can again choose at some time in the future to be a homosexual man again. He could also have chosen not to be a homosexual man while he was in Lebanon and hence not have been in a position where he had to flee his country for fear of persecution on the basis of that homosexuality. Certainly, if he had told the delegate that his homosexuality was a matter of choice and something he could change and become a heterosexual man, his claims for the protection of the Australian government and community would have been rejected.

60.    Nor does the Tribunal accept the generalised argument that it is not unknown for a previously heterosexual man who has been married and has children, to enter into a homosexual relationship. Without wishing to continue to generalise, it is most likely that such homosexual men have always been homosexual and have married and had children to comply with what were considered societal norms. Their ‘outing’ as homosexual is not a sudden or miraculous conversion, or matter of choice to become a homosexual man, even though it may be a choice to finally decide to finally put expression to who they believe they are and have been since they were born.

61.    The Tribunal also takes issue with the sponsor’s use of the term “reformed” in relation to his homosexuality. He did not merely claim that he had homosexual desires or even had a homosexual relationship; his statement is much stronger than that: he claims to have been a homosexual man but that he has ‘reformed’.

62.    If indeed he does feel that he has “reformed” in that he now confirms with the role society expects of a man, which is to have a wife and children, then he clearly continues to see himself as a homosexual man, albeit one performing the role expected of a heterosexual man. He is not, in the Tribunal’s view, now a “heterosexual man” – he can only ever be, at best, a “reformed homosexual man”. The Tribunal cannot be satisfied in these circumstances that the sponsor would continue to want to, or be authentically able to, remain a “reformed homosexual man” and hence be able to be in a committed, genuine, ongoing and exclusive relationship as man and wife with the applicant.

63.    The Tribunal does not disagree that it may well be the case that some heterosexual men have homosexual desires, or vice versa, or that some people are genuinely bisexual. However, this is not what the sponsor is claiming. The sponsor is claiming that he was a homosexual man – not that he merely had homosexual desires or homosexual relationships. Be that as it may, the Tribunal is also concerned that if the sponsor considers that his past homosexuality was “unvirtuous”, he arguably remains deeply conflicted and it is not clear to the Tribunal that he is genuinely committed to his “reformation” from a homosexual man to a heterosexual man. This leads the Tribunal to form a view that he has no genuine commitment to being in an ongoing, exclusive spousal relationship with the applicant, or indeed, that he ever has been in such a relationship.

64.    In any case, in the parties response to the Tribunal’s written concerns that the applicant did not make any claims to fear returning to Lebanon, the parties’ submit that the applicant did not make any such claims because it was not his hearing, it was the applicants [sic]. In the Tribunal’s mind, this implies that he does in fact still hold a well-founded fear of returning to Lebanon on the basis of his homosexuality.

12    It is common ground that the references to “appellant” in [64] lines 2 and 3 should be to the “sponsor”.

13    At [85], under the heading “Credibility”, the Tribunal said:

85.    Having considered all of the evidence and argument, the Tribunal has formed a view that the applicant is indeed a homosexual man as he claimed in his protection visa application, and that his subsequent “reform” is not, and cannot be authentic or genuine. The Tribunal finds that the parties fabricated a relationship and subsequent marriage solely in order to remain in Australia. The Tribunal is not satisfied that the sponsor and the applicant are in a spousal relationship or that they have ever been.

14    At [97], under the heading “Nature of the household”, the Tribunal said:

Given the Tribunal’s findings that the parties are not credible and that their evidence is unreliable, the Tribunal is not satisfied that the sponsor is the biological father of the applicant’s child. Even if he is, as the Tribunal has found that the parties are not, and have never been in a genuine, ongoing and exclusive spousal relationship, it cannot be satisfied that the sponsor has ever, or will in the future have a commitment to support and raise that child.

15    I consider the Tribunal’s process of reasoning involves assumptions, pre-conceptions or pre-judgments which prevented the Tribunal from engaging with the claims of the appellant and her sponsor that their marriage was and is genuine and the material which supported those claims (such as the child of the marriage). Further, these assumptions appear to be based on a premise about homosexual men in general, rather than the sponsor in particular. The premise is that if, as the Tribunal’s view of the “gay rights movement” would have it, males are born either heterosexual or homosexual (or, in the Tribunal’s words, “genuinely bisexual”), then a man born homosexual can never enter into a genuine spousal relationship with a woman. By proceeding on the basis of this premise as if it represents a universal truth, I consider that the Tribunal has disabled itself from engaging with the material before it. Alternatively, I am satisfied that the Tribunal’s process of reasoning is affected by illogicality of the kind required to constitute jurisdictional error. The principles in respect of this latter kind of error are summarised in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

16    My reasons follow.

17    First, it is not apparent what relevance the “gay rights movement” referred to in [59] of the Tribunal’s reasons might have to the circumstances of the marriage between the appellant and her sponsor. If by this the Tribunal is referring to developments in Australia which led to the decriminalisation of homosexuality or the legal entitlement of persons of the same sex to marry, it is unclear what relevance those developments might have to the circumstances of the appellant and the sponsor, who were both born and raised in Lebanon, and first came to Australia as adults on student visas. It is also unclear what relevance the “gay rights movement”, as the Tribunal appears to conceive of it, has to the sponsor’s claim that he considered his homosexual desires “unvirtuous” and had “reformed” to live in a marriage with his wife and daughter.

18    Second, if it is the case that the “gay rights movement” fought for homosexuality to be accepted as a sexual orientation from birth and not a matter of choice, as the Tribunal says in [59], it is also not apparent that the sponsor was claiming he had “chosen” to be homosexual when he lodged his protection visa application and had now “chosen” to be heterosexual. This is a construct of the Tribunal’s own making based on its essential premise about human sexuality, apparently derived from its views about the position of the “gay rights movement” being that sexuality is fixed at and immutable from birth. The problem is that the Tribunal has treated its premise - that men are born and remain heterosexual, homosexual or “genuinely bisexual” so that a man born homosexual can never enter into a genuine relationship with a woman - as a universal truth applicable to all men. As a result, the Tribunal could not engage in a meaningful way with the material before it. All the Tribunal could do (and as discussed below repeatedly did) was impose on the material its own constructs which were a necessary consequence of its essential premise.

19    Thus, the sponsor was saying to the Tribunal that he considered his past homosexuality and homosexual desires and tendencies to be “unvirtuous”, that he had married and loved his wife, that he considered himself now to be a heterosexual man, and that he wanted his homosexuality, homosexual desires and tendencies to remain in his past. This is not the same as the sponsor suggesting he had once “chosen” to be homosexual and now “chose” to be heterosexual. Nothing in the material suggests any kind of “choice” as the Tribunal posits in [59] of its reasons. Yet the construct of choice is imposed by the Tribunal in its reasoning process.

20    Otherwise [59] involves the Tribunal in the speculation that if the sponsor had said he could choose to be homosexual or not in his protection visa application, that application would have been rejected. Again, this speculation is based on the same construct of choice which is of the Tribunal’s own making.

21    In [60] the Tribunal says that it does not wish to “continue to generalise” and then proceeds to do so, asserting that a man who has married and had children and then entered into a homosexual relationship had most likely “always been homosexual”. The following sentences, dismissing what the Tribunal describes as “sudden or miraculous conversion” and characterising such a circumstance as “a choice to finally decide to finally put expression to who they believe they are and have been since they were born”, again disclose the premise that a person’s sexuality (or, at least, a man’s sexuality) is fixed at and immutable from birth. The construct of choice necessarily follows from this premise. So too does a construct of personal inauthenticity. If, as the Tribunal would have it, male sexuality in all its dimensions is fixed at and immutable from birth, any subsequent choice different from that assigned at birth is necessarily, at least on the Tribunal’s approach, a choice about appearances and roles, not sexual identity, attraction or relationships, and thus not authentic or “genuine”.

22    Accordingly, in [61] the Tribunal takes issue with the sponsor’s description of himself as “reformed”. The “reform” the sponsor had in mind was that he now considered himself to be a married heterosexual man who wished his sexual desires and tendencies involving men to remain in his past. The “reform” the Tribunal has in mind, however, is one involving choice and thus, as a necessary consequence of men’s supposedly fixed and immutable sexuality, personal inauthenticity. Thus, in [62] the Tribunal said that the sponsor’s description of himself as a “reformed” homosexual man meant that he “clearly continues to see himself as a homosexual man, albeit one performing the role expected of a heterosexual man”. This, however, is the precise opposite of what the sponsor was claiming. The Tribunal was not rejecting the sponsor’s claims, but re-casting them to fit within its pre-conceptions about human sexuality apparently derived from the Tribunal’s views about the position of the “gay rights movement”.

23    The Tribunal’s statement in [62] that the sponsor “is not, in the Tribunal’s view, now a ‘heterosexual man’ – he can only ever be, at best, a ‘reformed homosexual man’” again appears not to be an assessment of the material before it, but the inevitable working out of the Tribunal’s premise about male sexuality. Given the Tribunal’s premise it must inevitably follow (as indeed it does in the Tribunal’s reasons) that the sponsor, as a homosexual man (or, to be accurate, a homosexual man as conceived of by the Tribunal), could never be in a genuine relationship with a woman.

24    The reasoning in [63] does not assist. In this paragraph the Tribunal records its acceptance of the proposition that “heterosexual men” may have “homosexual desires, or vice versa” and that some people are “genuinely bisexual”. What is apparent here is that this involves another manifestation of the Tribunal’s premise about sexual identity and attraction consisting of three mutually exclusive categories fixed at and immutable from birth, homosexual, heterosexual, and “genuinely bisexual”. The third of these categories is telling. As the Tribunal would have it, it is only a person who is born bisexual at birth who may have a “genuine” (that is, “authentic” in the sense of matching the person’s supposedly assigned sexuality at birth rather than performative) relationship with persons of both the same and of the opposite sex. If born into one or other of the first two categories, however, a man (on the Tribunal’s approach) can only enter into “genuine” relationships with either a person of the opposite sex (if born heterosexual) or the same sex (if born homosexual). In other words, as the Tribunal would have it, the only authentic and thus “genuine” relationship is one in which a person’s choice of partner matches the person’s assigned sexual identity from birth and any variation from this is necessarily inauthentic and thereby not “genuine”. This explains the Tribunal’s statements that a man who is heterosexual is still a “heterosexual man” even if he has “homosexual desires” and, vice versa, a man who is homosexual is still a “homosexual man” even if he has “heterosexual desires”. It is necessary to make these points because [63] does not disclose the Tribunal’s assessment of or engagement with the material before it. To the contrary, it demonstrates the strength and consistency with which the Tribunal maintained its premise and how that premise made the result the Tribunal reached inevitable irrespective of the particular circumstances of the appellant and her sponsor.

25    In [63] the Tribunal also says that the sponsor appears conflicted about his past homosexuality. This observation is not itself unreasonable. The problem is the use the Tribunal makes of this possibility. Rather than engaging with it, the Tribunal uses its view about the sponsor being conflicted to say that “it is not clear to the Tribunal he is genuinely committed to his “reformation” from a homosexual man to a heterosexual man” and that this “leads the Tribunal to form a view that he has no genuine commitment to being in an ongoing, exclusive spousal relationship with the appellant, or indeed, that he has ever been in such a relationship”.

26    I consider this part of the Tribunal’s reasons exposes both kinds of jurisdictional error - extreme illogicality and failure to engage with the material before it. It is not apparent how the sponsor’s consideration of his past homosexuality as “unvirtuous” or his arguable conflict about his past homosexuality could mean that the sponsor is not genuinely committed to his life as a man married to a woman, with a child. The only apparent logical connection between the propositions is the premise that people who do or have identified as homosexual were born and thus must remain homosexual, and if they later identify as heterosexual or have heterosexual desires or marry a woman and have children for whatever reason (be it societal or personal expectation or otherwise) they are necessarily inauthentic and involved in a performance, with the result that the marital relationship cannot be genuine. This also explains why, as the Tribunal would have it in [97], an apparent child of the marriage cannot be the biological child of the sponsor or, if the child is the biological child of the sponsor then, as a homosexual man, the sponsor has not ever been and will not be committed to raising the child.

27    The reasoning in [64], even when read as the sponsor (rather than the appellant) not claiming to fear returning to Lebanon because it was the appellant’s hearing and not his hearing, is unintelligible. It is not apparent how the sponsor not having claimed in this hearing that he feared returning to Lebanon implies that the sponsor does fear returning to Lebanon due to his homosexuality. The Minister submitted that this was connected with the fact that if the appellant and sponsor had married in Lebanon the 28 day criteria or “compelling reasons” requirement would not have applied, but I remain unable to see any logic in the paragraph. It seems the Tribunal is using the fact that the appellant and sponsor did not return to Lebanon to marry to support its conclusion the sponsor was and remains a homosexual who is performing the role of a heterosexual. But the sponsor was not attempting to suggest he had never been homosexual so that he had nothing to fear in Lebanon, and thus the Tribunal’s reasoning process was irrational and logically unconnected to the material before the Tribunal.

28    This reasoning was said by the Tribunal to support the conclusion in [85] that there is and never was a genuine marital relationship between the appellant and the sponsor and in [97] that the sponsor is not the biological father of the child or, if the biological father, is not committed to raising the child. This in turn supported the Tribunal’s rejection of the credibility of the appellant and sponsor generally, which further undermined their claim that there were compelling reasons for not lodging the partner visa application within 28 days of the relevant day as required. The entire reasoning process, for the reasons given, involved the working out of the inevitable consequences of the Tribunal’s essential premise about male sexuality, unconnected to the particular circumstances of the sponsor and the appellant, and irrespective of the material they had placed before the Tribunal.

29    For the reasons given, I consider the Tribunal’s decision-making process miscarried by reason of jurisdictional error. Further, given the Tribunal’s reasons and the jurisdictional errors discussed above, I consider that the remitted matter must be dealt with by another Tribunal member to avoid an appearance of bias.

Associate:

Dated:    2 March 2018