FEDERAL COURT OF AUSTRALIA

BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 29 March 2019 be set aside and, in lieu thereof, the following orders be made:

(a)    A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 April 2016 (case number 1417176).

(b)    A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the appellant for review of the decision of a delegate of the first respondent made on 1 October 2014 under s 65 of the Migration Act 1958 (Cth).

3.    Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 1 April 2019 be set aside and, in lieu thereof, the following order be made:

The first respondent pay the appellant’s costs of the Federal Circuit Court proceeding.

4.    The first respondent pay the appellant’s costs of the appeal.

5.    The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 29 March 2019 be set aside and, in lieu thereof, the following orders be made:

(a)    A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 29 April 2016 (case number 1417175).

(b)    A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application made to it by the appellant for review of the decision of a delegate of the first respondent made on 1 October 2014 under s 65 of the Migration Act 1958 (Cth).

3.    Paragraph 2 of the orders of the Federal Circuit Court of Australia made on 1 April 2019 be set aside and, in lieu thereof, the following order be made:

The first respondent pay the appellant’s costs of the Federal Circuit Court proceeding.

4.    The first respondent pay the appellant’s costs of the appeal.

5.    The name of the first respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

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

REASONS FOR JUDGMENT

MURPHY AND O’BRYAN JJ:

Introduction

1    The appellants, designated BFH16 and BFI16 to keep their identity confidential, appeal from orders made by the Federal Circuit Court of Australia on 29 March 2019, dismissing applications for judicial review of decisions of the Administrative Appeals Tribunal (Tribunal) made on 29 April 2016. The Tribunal had affirmed decisions of a delegate of the Minister made on 1 October 2014 under s 65 of the Migration Act 1958 (Cth) (Act), refusing to grant the appellants protection visas.

2    BFH16 was born in 1991 and is a citizen of Pakistan. He arrived in Australia in December 2009 on a student visa. BFI16 was born in 1987 and is also a citizen of Pakistan. He arrived in Australia in July 2009 on a student visa.

3    On 13 May 2013, each of the appellants applied for protection on the basis of a claim that each is homosexual and has a well-founded fear of persecution in Pakistan by reason of his membership of a particular social group; namely, homosexual males in Pakistan. They gave evidence that they began a sexual relationship in Australia on 6 March 2010. The appellants first met in Pakistan in 2009 through their families. Their respective fathers were friends and introduced them, as they both intended to travel to Melbourne to study. After arriving in Australia in July 2009, BFI16 lived with BFH16’s brother in a two-bedroom unit. When BFH16 arrived in December 2009, they shared a bedroom in BFH16’s brother’s unit. BFH16 gave the following evidence about the commencement of their relationship (errors in original):

Within few months of my arrival, I started sharing the same room with [BFI16]. [BFI16] was much familiar with the places, so he showed me a lot of things in Melbourne. He used to travel with me to every place I needed to go. And slowly we got very close. We used to catch the same train in the morning for Uni and in the evening as well, probably twice or three times every week. He always looked after me. I slowly started getting attracted towards him, we were spending too much time together. However, I was very fearful and didn't have the courage to expose my feelings to him. it was until the Saturday night of 06 March 2010 and as we came back home after celebrating my birthday and as we were both drunk, we couldn't control to express our feelings at that night and finally we share all those pleasures which gay couples would do. Since then we have been sharing the same room and in a relationship as well. Since that day, our relationship continued to grow stronger, we always spend our time together. We hang out together, we party together. But we never disclose our relationship to any one whether it is our friend or family.

4    The appellants each made their own application for a protection visa, but the applications were necessarily interconnected and therefore heard together.

5    On 1 October 2014, the applications were refused by a delegate of the Minister. The delegate did not accept that the appellants were homosexual as claimed.

6    On 17 October 2014, the appellants applied to the Tribunal for review of the delegate's decision. The reviews were heard together. On 2 May 2016, the Tribunal affirmed the delegate’s decision. Like the delegate, the Tribunal did not accept that the appellants were homosexual. The Tribunal published separate reasons for its decisions with respect to the appellants, but the reasoning in each decision is materially the same. In these reasons, we will refer principally to the Tribunal’s decision with respect to BFH16’s application and identify the location of equivalent reasons in the Tribunal’s decision with respect to BFI16’s application where necessary.

7    On 23 May 2016, the appellants applied to the Federal Circuit Court for judicial review of the Tribunal’s decisions under s 476 of the Act. Subject to various exceptions (which are not presently relevant), s 476 grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The two applications were heard together and, on 29 March 2019, the primary judge dismissed each application. The primary judge published his reasoning on both applications in BFH16 v Minister for Home Affairs [2019] FCCA 730, with BFI16 v Minister for Home Affairs [2019] FCCA 731 incorporating the reasons in BFH16 by reference. In these reasons, references to the reasons of the primary judge will be to the reasons in BFH16 and will be designated “FCCA reasons”.

8    On 18 April 2019, the appellants filed notices of appeal in this Court. Although each appeal is a separate proceeding, the appeals raise the same issues, are based on the same facts and were heard together. These reasons concern both appeals.

9    The appeals are by way of rehearing under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). Accordingly, the Court must determine whether the Federal Circuit Court was correct to find that the decision of the Authority was not affected by jurisdictional error: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW).

10    At the commencement of the hearing, the appellants sought leave to withdraw a concession they had made in the Federal Circuit Court and to file amended notices of appeal reflecting that withdrawal. Leave was not opposed by the Minister and the Court granted leave. The grant of leave brought about a material change to the appellants’ case as conducted before the Federal Circuit Court. The change can be explained by reference to the amended notices of appeal, which are in the following terms:

The primary judge erred in failing to find the Tribunal's assessment of the credibility of Appellant BFH16 and Appellant BFl16's claims at paragraphs [37], [38] and [40] of its reasons revealed of error. Namely, unreasonableness and/or illogicality insofar as the Tribunal's:

a.     rejection of Appellant BFH16's evidence that the day after he and Appellant BFl16 had sex they just went about their normal routine as "totally implausible";

b.     opinion that given the Appellants' claimed social, cultural and religious context and their lack of previous sexual experience, what happened in the aftermath of their first sexual encounter and when they next had sex would be "two very significant details". Therefore, because the Appellants did not appear to recall those events distinctly or consistently their claim to have had sex when intoxicated after BFH16's birthday celebration was implausible;

c.     view that if the Appellants were in a committed relationship as they claimed, they would not have engaged in the pattern of travel that occurred between February 2011 and April 2013 and would have taken active steps, including travelling together, to minimise time apart;

d.     view that a couple who wished to engage in a secret homosexual relationship would not attend gay venues together. Therefore, this couple's claim to frequent gay venues undermined and was inconsistent with their claim to be gay;

e.     view that a gay couple in a committed relationship would not frequent venues where they might be propositioned for sex. Therefore, this couple's claim to frequent such a venue undermined and was inconsistent with their claim;

lacked an evident and intelligible justification or, the reasoning was not open on the evidence or lacked a logical connection between the evidence and the conclusions drawn.

11    Before the Federal Circuit Court, the appellants criticised six findings made by the Tribunal in support of its conclusion that the appellants were not in a homosexual relationship, or homosexual, as claimed. The appellants made a concession that, save for one finding, the individual findings that were criticised were not unreasonable or illogical in themselves, but the aggregate of the findings rendered the Tribunal’s ultimate conclusion (based upon those findings) unreasonable or illogical (see FCCA reasons at [43] and [90]). The finding that the appellants argued was unreasonable or illogical in itself was a finding by the Tribunal not to give any weight to a statutory declaration filed by a friend of the appellants in support of their claims (see FCCA reasons at [126]). As can be seen from the amended notices of appeal above, that finding is not the subject of challenge in these appeals and can be disregarded. The primary judge rejected the appellants’ submission that a series of factual findings, not demonstrated to be legally unreasonable or irrational or illogical in themselves, can collectively render an ultimate conclusion (based upon those findings) unreasonable or illogical (see FCCA reasons at [97]).

12    By the amended notices of appeal in this Court, the appellants now contend that five findings made by the Tribunal were legally unreasonable or were illogical or irrational, with the result that the Tribunal’s adverse credibility findings in respect of the appellants were affected by jurisdictional error. It is therefore unnecessary to consider the question whether a series of factual findings, not demonstrated to be legally unreasonable or irrational or illogical in themselves, can collectively render an ultimate conclusion (based upon those findings) unreasonable or illogical, as argued by the appellants before the primary judge. It also means that the reasoning of the primary judge does not directly address the argument now advanced by the appellants in this Court.

13    For the reasons that follow, we have arrived at a different conclusion to the primary judge and would allow the appeals. Our conclusion does not involve any finding of error in reasoning by the primary judge. Rather, our conclusion flows from the different argument advanced before this Court which has the result that the ultimate conclusion of the primary judge, that the Tribunal decisions were not affected by jurisdictional error, was erroneous.

Tribunal reasons

14    The Tribunal identified that credibility was a central issue in the case and the Tribunal needed to determine whether or not it accepted that the appellants were homosexual and in a homosexual relationship (at [23]).

15    The Tribunal summarised the principles applicable to the assessment of credibility, noting:

(a)    at [24], that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims;

(c)    at [25], that the Tribunal ought adopt a reasonable approach in the finding of credibility, referring to Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151;

(d)    at [26], that if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt; and

(e)    at [29], that the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant and is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, relying on Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547.

16    The Tribunal did not find the appellants to be credible witnesses and did not accept that they are homosexual and that they are in a homosexual relationship (at [30]). The Tribunal stated that it reached that conclusion for the reasons set out in its decision. The appeals concerns the legal rationality or reasonableness of those reasons.

17    The Tribunal set out each of the appellants’ evidence concerning their background in Pakistan and their claims of being attracted to boys when they were younger and their awareness that being homosexual is not accepted in Pakistani society (at [31]).

18    The Tribunal recorded the appellants’ evidence concerning their first sexual encounter as follows:

[32] The applicant indicated to the Tribunal that he has never had a relationship with a woman and has never had a sexual encounter with anyone other than [BFI16]. He commented that after he arrived in Melbourne in December 2009, he continued to access gay porn on his phone but did not seek to act on his gay orientation, commenting that he was in a new country, was living at his brother's home and did not know anyone. The applicant told the Tribunal that, from a couple of months after he arrived in Australia in December 2009, he shared a room with [BFI16] in a two bedroom unit, with his brother occupying the other bedroom. The applicant indicated that he first realised he had feelings for [BFI16] in 2010. He commented that he was new to Melbourne and [BFI16] looked after him, took him out for lunch and to McDonald's at night. He indicated that [BFI16] was really lovely and looked after him a lot.

[33] The applicant said that on 6 March 2010 he went out with [BFI16] to celebrate his birthday. They went to 'Retro' in the city where they had a few drinks, smoked and danced. The applicant commented that it was at this time that he thought that [BFI16] also had feelings for him, noting that he had also looked after [BFI16]. The applicant said they discussed if each other had girlfriends and liked girls and the applicant commented that they were really close at that time. The applicant indicated to the Tribunal that [BFI16] did not say that he was gay while they were talking at Retro and the applicant said that he did not ask [BFI16] at that time why [BFI16] did not have a girlfriend. The applicant said they got home late, after midnight. His brother was not at home because he worked at night at a nearby petrol station. The applicant said that [BFI16] initiated sex with him for the first time that night.

19    The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [33] – [35]).

20    The Tribunal sought to test that evidence by asking the appellants about their discussions immediately following their first sexual encounter and the period of time before their second sexual encounter. It needs to be borne in mind that the hearing occurred on 14 April 2016 and the events being investigated by the Tribunal occurred in March 2010, some six years earlier. This aspect of the Tribunal's reasons are items “a” and “b” of the appellants’ amended notices of appeal. The Tribunal's findings are as follows:

[34] The Tribunal asked the applicant if, after having sex, he and [BFI16] talked that night about their sexuality and what they had just done. He replied they were a bit drunk so they didn't. The Tribunal asked whether they talked about it the next day. The applicant replied they just went about their normal routine. The Tribunal again asked the applicant whether he and [BFI16] talked about what had happened. The applicant responded that he was not sure as it was a long time ago, that they went about their normal routine and had 'Uni' as well. The Tribunal commented that this would have been a Sunday. The applicant again replied that it was a long time ago, 5 or 6 years now. The Tribunal found the applicant's responses in relation to this matter to be vague and evasive. The Tribunal suggested to the applicant that this was a pretty significant thing that had happened. The applicant commented that they wake up really late as well and his brother was always home in the daytime and they always have to sit together. The Tribunal asked if they went out to talk about it. The applicant said they didn't. The Tribunal asked the applicant when he and [BFI16] first discussed what had happened and what it meant for them. The applicant replied that they didn't discuss a lot about their future at that time and that he belongs to a really strict religious family. The Tribunal asked the applicant whether his brother worked the next night and whether they discussed things that night. He replied that he didn't remember what they discussed that night.

[35] The Tribunal also asked the applicant when he and [BFI16] next had sex. He replied that it was later on, a couple of weeks later. When the Tribunal queried whether he might have wanted to do it again quickly he replied not really as he was new and a bit scared as well and did not get comfortable straight away.

[36] When the same questions were put by the Tribunal to [BFI16], he said that that they did talk afterwards, commenting that they were very open with each other. He said they talked about what had happened that night and the next day as well. When asked whether the applicant's brother was there, [BFI16] said he probably was in the morning but then he left. The tribunal asked [BFI16] when he and the applicant next had sex. [BFI16] replied that he thought it was after 1 or 2 days or 2-3 days. When queried by the Tribunal whether they were not keen to have sex again the next day, [BFI16] replied that they did, but he was not sure and could not remember whether it was the next day or the night after that.

[37] When the Tribunal asked the applicant and [BFI16] about these differences in their accounts of the immediate aftermath of their claimed first sexual experience, [BFI16] commented that they thought they discussed what had happened later that night or the next day. In relation to when they next had sex both the applicant and [BFI16] commented that it has been 6 years and they only remember 60-70 per cent of what happened. [BFI16] commented that in the morning the applicant's brother was home so in the night-time they spoke about it. The Tribunal does not accept the applicant and [BFI16]'s explanation for the very significant differences in what they claim occurred after what would have been a momentous event in their lives, or their attempts to down play the significance of the differences in their accounts of what occurred. The Tribunal does not accept that the applicant and [BFI16] would not be able to recall two very significant details of what happened in the aftermath of what both claimed was their first experience of sexual intercourse and their first significant gay sexual experience, that is, when they discussed the implications for them individually and as a couple of what had happened; and when they next had sexual intercourse. In relation to the first issue, the Tribunal, as discussed with the applicant and [BFI16], finds it relevant that both claim they had gay feelings since they had been in high school, both claim that they had not had sexual intercourse before, both claim they did not know the other was gay before that night, and both claim they are from conservative families and a conservative social milieu which would strongly disapprove of their actions. They were also living with the applicant's brother who they claim is still unaware of the claimed relationship and who they did not want to know about the relationship under any circumstances. The Tribunal considers that, in these circumstances, there would be much that they would want to discuss with each other, and finds totally implausible the applicant's comments that the next day they just went about their normal routine and that he cannot remember when they discussed the implications of what had happened. In relation to the second issue, and again in the context of the circumstance of his claimed first experience of sexual intercourse and first gay sexual experience, the Tribunal finds it implausible that the applicant would not remember whether he had his second claimed experience of sexual intercourse with [BFI16] a day or two later or a couple of weeks later.

21    The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [36] to [39]). Significantly, in both decisions, the Tribunal found implausible BFH16’s evidence that, after their first sexual experience, they went about their normal routine and BFH16 could not remember when they discussed the implications of what had happened nor remember when they next had sexual intercourse. The Tribunal did not find BFI16’s evidence in relation to those matters to be implausible.

22    Next, the Tribunal recorded its investigation concerning the travel undertaken by the appellants back to Pakistan. This aspect of the Tribunal's reasons is item “c” in the appellants’ amended notices of appeal. The Tribunal's reasons are as follows:

[38] The Tribunal asked the applicant about when in the claimed relationship he realised that he wanted to commit to a long-term relationship with [BFI16]. He indicated that it was probably about a year later, commenting that they were always together, were really committed and really loved each other and wanted to live together for the whole of their lives. The Tribunal discussed with the applicant that while his statement of claims commented that 'since that day, our relationship continued to grow stronger' and that 'we always spend time together', the information he and [BFI16] had provided indicated that they spent a long time apart from February 2011 through to April 2013: around 38 weeks in total. The applicant commented that they did not have any choice, they had to go overseas for some emergencies, that [BFI16]'s mother passed away and his brother got married. The Tribunal discussed with the applicant and with [BFI16] that they went overseas for long periods: that [BFI16] was away on two occasions for 5 weeks and 10 weeks in 2011 and then a month after he returned to Australia the applicant departed for 9 weeks. Subsequently, in December 2012, the applicant departed for 8 and a half weeks and two days after he returned to Australia, in February 2013, [BFI16] departed for five and a half weeks. The applicant commented that they love each other but each has other things to do as well, that [BFI16] has family and his mother died, while the applicant lives with his brother and travelled with him on one occasion. The applicant commented that families push for them to stay a little longer and they also never wanted their families to think that they were more than friends so they never wanted to take the risk of going back together. When asked about the nature of his relationship with the applicant, [BFI16] said they do everything together, from getting up in the morning until going to bed at night-time. He indicated that he had felt that way since before their relationship was 12 months old. When asked about the pattern of overseas travel [BFI16] commented that they planned not to go together as they would have an urge to meet each other. He commented that when his mother died on 14 September 2011, he had to stay for 5-6 weeks to adhere to Islamic rituals. When the Tribunal queried with [BFI16] why that required him to be in Pakistan for 10 weeks, [BFI16] indicated that his father had to arrange his ticket home. While the Tribunal accepts that the applicant and [BFI16] would each have had family obligations which would have required them to travel back to Pakistan, the Tribunal finds the length of stays away (three of 8-10 weeks) and the pattern of travel (no overlap, departures of one shortly after the other returned to Australia) does not support the assertion that the applicant and [BFI16] were in a relationship at that time. In this regard, the Tribunal notes that [BFI16] indicated that, apart from his mother, who died in September 2011, he was not close to his family. The Tribunal considers that, had [BFI16] wished to be with the applicant, he could have shortened his periods of time overseas or travelled at the same time as the applicant on some occasions, to minimise the time they were apart. Noting that the applicant and [BFI16] lived in a two bedroom apartment with the applicant's brother for over four years while they claim to have been in a gay relationship, and, as discussed with the applicant, noting from the Tribunal's personal experience that Pakistan is a highly sex segregated and patriarchal society where it is common for men to be in each other's close company, without that raising any queries about their sexuality, the Tribunal does not accept as valid the applicant and [BFI16]'s assertions that they did not wish to travel at the same time as it might raise suspicion that they were in a relationship, or that they might have the urge to meet each other and this might arouse suspicions about the nature of their relationship.

[39] The Tribunal also discussed with the applicant and [BFI16] the findings of the delegate, as detailed in his decision record provided to the Tribunal by the applicant, that they had provided inconsistent commentary to the delegate regarding how often they contacted each other when one or the other was travelling overseas. The decision record states that [BFI16] indicated that they talked by phone every day or every second day, while the delegate considered the applicant was evasive in his responses, at one stage indicating that that they were in contact once a week, twice a week or once every two weeks, and when pressed that there was quite a range in his statement, commenting that it was not a lot and it could not be said that they talked every day or every second day. The applicant and [BFI16] commented that once every second day is the same as twice a week. The Tribunal finds that the applicant and [BFI16] did provide quite inconsistent information to the delegate regarding how frequently they spoke with each other by phone while they were apart, and considers this is further evidence that indicates they were not in a relationship at that time.

23    The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [40] – [41]).

24    The Tribunal then recorded its findings concerning the appellants’ evidence about attending gay venues in Melbourne, particularly a club called the Robert Peel in Collingwood and a gay sauna called Subway Sauna in Flinders Street Melbourne. This aspect of the Tribunal's reasons is the subject of items “d” and “e” of the appellants’ amended notices of appeal. The Tribunal’s findings were as follows:

[40] The Tribunal also found the applicant and [BFI16]'s claims to wish to keep their relationship a secret and to not risk anyone finding out about it to be inconsistent with their claim to frequent a gay club, the 'Robert Peel' in Collingwood, and to have attended a gay Sauna, the 'Subway Sauna' in Flinders Street Melbourne. Indeed, they claim that the only person who knows they are in a gay relationship (initially referred to as Dawood but subsequently identified as Mr [confidential redaction]) knows this because he saw them together at these venues. The Tribunal discussed with the applicant's that it had 'googled' the Subway Sauna and that it was clear from the website that it is an establishment that caters for casual gay sexual encounters. The applicant and [BFI16] agreed this was the case but [BFI16] commented that you can also just go there for a massage, spa or sauna. The website makes clear that the massages are a non-sexual service, but, as the Tribunal discussed with the applicant and [BFI16], it is also clear from the website and other material regarding gay saunas in Melbourne that it is a place where they would likely be propositioned for sex by other men. The Tribunal asked the applicants why, given what they had told the Tribunal about the nature of their claimed relationship (that it is an exclusive relationship and they have never engaged in casual sex), they would want to put themselves in such a situation, when they could get a massage from a non-gay establishment. The applicant commented that there are private rooms for sex and people can't force you to have sex. As noted above, the Tribunal finds this claimed behaviour, deliberately putting themselves in a identifiably gay male environment, including one which facilitates casual gay sexual encounters, where they have no control over who they might encounter or be seen by, is at odds with the applicant and [BFI16]'s claims that they did not want to take any risks lest anyone should become aware of their gay relationship and their families might find out. The Tribunal considers that the applicant and [BFI16] have made references to these establishments in an attempt to create a 'gay profile' for the purposes of supporting their claims to protection, but does not consider that this is a genuine profile. Similarly, the Tribunal finds it contradictory that the applicant, while stating that he does not wish to take any risks that someone might find out that he is gay or in a gay relationship with [BFI16], would keep photos on his mobile phone of he and [BFI16] mixing with patrons and entertainers at a gay club. The Tribunal also finds it incongruous that, if the applicant and [BFI16] attended The Peel gay club in Collingwood, they would not have made any gay friends apart from Mr [confidential redaction]. When asked why this was the case, the applicant indicated that, while they talk to people casually at the gay club, it is not in his nature to have too many friends. When asked this question [BFI16] said that they speak to people sometimes but do not make them friends and that some people are like that.

25    The Tribunal made materially the same findings in its decision concerning BFI16 (BFI16 reasons at [42]).

26    The Tribunal made a number of other findings that are not challenged in these appeals. First, the Tribunal found it difficult to accept that the appellants, if they were committed to a homosexual relationship together, would have continued to live with BFH16's brother for a period of over four years where they had to hide their relationship every day, particularly in circumstances where BFI16 ceased studying in July 2011 and BFH16 ceased studying in March 2012 and both were working and had the financial means to support themselves (at [41]). Second, the Tribunal took into account the fact that, following the expiry of their student visas, the appellants applied for graduate visas and appealed an adverse decision in the Migration Review Tribunal until April 2013. It was only after the failure of the review application that the appellants applied for protection visas (at [42]). Third, in reaching its decision, the Tribunal did not consider that a psychologist’s report filed on behalf of the appellants, or a statutory declaration made by a friend of the appellants, added weight to the appellants’ claims (at [44] and [45]).

Applicable legal principles

27    In their amended notices of appeal, the appellants allege jurisdictional error on the basis of legal unreasonableness and irrationality or illogicality. The appellants contend that certain factual findings made by the Tribunal lacked an evident and intelligible justification or the reasoning was not open on the evidence or lacked a logical connection between the evidence and the conclusions drawn. In support of their contentions, the appellants referred to legal principles stated in decisions involving the review of the exercise of procedural discretionary powers such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), SZVFW and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; decisions involving the review of a decision-maker’s findings of fact (or, usually, the decision-maker’s satisfaction as to particular facts which enliven a statutory power or mandate the exercise of power) such as Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 61 (SZMDS); and decisions involving the exercise of substantive discretionary powers such as Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton). The appellants also relied on recent decisions of this Court that have considered the bases on which credibility findings may be reviewed for jurisdictional error, particularly CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (CQG15) and BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 (BZD17).

28    In detailed written and oral submission, the Minister argued that the principles of legal unreasonableness, in the sense considered in Li, have no application in the review of a decision of the kind in this case; namely, a decision in which a statutory power is enlivened (or, in this case, mandated) if the decision-maker is satisfied as to the existence of certain facts that satisfy statutory criteria (here, the refugee criteria in s 36(2)(a) of the Act). The Minister submitted that, in cases of this kind, the applicable principles are those stated by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (Eshetu) and in SZMDS: whether the decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds (see SZMDS at [40] per Gummow ACJ and Kiefel J, in dissent as to the result, and at [119] and [130] per Crennan and Bell JJ; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ).

29    The distinction emphasised by the Minister is supported by statements of Gummow ACJ and Kiefel J in SZMDS at [39] and has been recently discussed by Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 (EHF17). The distinction helps focus attention on the nature of the decision that is challenged. As discussed by Gummow J in Eshetu, and more recently by Derrington J in EHF17, a decision under a provision such as s 65 of the Act, which requires the decision-maker to exercise power in a particular way if satisfied of certain facts, might be labelled a “subjective jurisdictional fact”. A court reviewing such a decision for jurisdictional error must be cautious not to be drawn into impermissible merits review. Judicial review does not involve mere merits review – it is not enough for the question of fact to be one on which reasonable minds may differ: SZMDS at [96] and [130] per Crennan and Bell JJ; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 (ARG15) at 122. It has been emphasised many times that the test for jurisdictional error in those circumstances is stringent.

30    The distinction on which the Minister relies has not been widely embraced and there is a considerable weight of authority against the adoption of rigid categories and formulae in the explication of principles of jurisdictional error. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain), Kiefel CJ, Gageler and Keane JJ described jurisdictional error (at [24]) as “a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it”. Their Honours referred to the implied obligation for the Minister to proceed reasonably in making a decision under s 65 of the Act (at [34]):

Formation of the Minister's state of satisfaction or of non-satisfaction is in each case conditioned by a requirement that the Minister or his or her delegate, or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law, which includes the criteria prescribed by the Migration Act and the Migration Regulations for the visa in question.

31    In the context of judicial review, the language of acting reasonably and rationally are often used collectively or interchangeably. For example, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Deane J said (at 367, albeit in the context of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth)):

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality" (cf. the C.C.S. U. Case (81)). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

32    So too in SZMDS, Crennan and Bell J discussed (at [119]-[130]) the origins and overlap between the principles of unreasonableness and illogicality and irrationality. Their Honours described an allegation of irrationality or illogicality in relation to a decision under s 65 of the Act as including the concept of legal unreasonableness (at [130]):

In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

33    In Stretton, Allsop CJ observed (at [2], albeit in a case involving the exercise of discretionary power):

The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another. Both concepts concern the lawful exercise of power. For that reason alone, any attempt to be comprehensive or exhaustive in defining when a decision will be sufficiently defective as to be legally unreasonable and display jurisdictional error is likely to be productive of complexity and confusion. One aspect of any such attempt can be seen in the over-categorisation of more general concepts and over-emphasis on the particular language of judicial expression of principle. Thus, it is unhelpful to approach the task by seeking to draw categorised differences between words and phrases such as arbitrary, capricious, illogical, irrational, unjust, and lacking evident or intelligent justification, as if each contained a definable body of meaning separate from the other.

34    This Court has often said that adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis: CQG15 at [38]; ARG15 at [83](d); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (DAO16) at [30]; DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260 at [20]; BZD17 at [33]-[34].

35    In this case, it is not necessary to resolve the question of whether legal unreasonableness is applicable to the Tribunal’s decision. The appellants advanced their submissions on the basis of illogicality and irrationality and, for the reasons explained below, we are satisfied that the appeals should be allowed on that basis.

36    The applicable principles concerning review of the Minister’s state of satisfaction under s 65 of the Act for illogicality and irrationality were explained by Gummow ACJ and Kiefel J in SZMDS in the following terms (at [23] and [24], citations omitted):

In Australia, as Basten JA recently observed, the principles applicable where the jurisdictional fact is a state of satisfaction or opinion are traced back to the use by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd of the terms “arbitrary, capricious, irrational” as well as “not bona fide” to stigmatise the formation of an opinion upon which a statutory power was enlivened. Subsequently, for the Supreme Court of Canada, Iacobucci J spoke of decision making upon an assumption which had no basis in the evidentiary material or which was contrary to the overwhelming weight of that material, and also of decisions based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open.

A decision upon jurisdictional fact which has these characteristics is treated as a failure to exercise jurisdiction. There has been a purported exercise of public power in the absence of the necessary jurisdictional fact.

37    Crennan and Bell JJ expressed the principles in a similar manner (at [122]):

Just as the unreasonableness of a result was referred to in Avon Downs, correspondingly, the “reasonableness” of a decision has often been considered in circumstances where a public officer must be “satisfied” of some fact or circumstance. So too in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20, Gummow and Hayne JJ explained that jurisdictional error may arise if the Minister’s state of satisfaction under s 65 of the Act is “not based on findings or inferences of fact supported by logical grounds”. The Chief Justice went on to state:

“If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”

Further, satisfaction of the existence of facts must amount in point of law to what an empowering provision prescribes or specifies. As explicated subsequently by Gibbs J in Buck v Bavone, this means a decision-making authority which must be satisfied of certain facts “must act in good faith; it cannot act merely arbitrarily or capriciously”. His Honour went on to say that even if certain specified errors could not be established “the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it”. Such formulations convey the idea that a court should not lightly interfere with administrative decision-making.

38    In the present matters, the Tribunal did not believe the appellants’ claims that they were homosexual. It reached that adverse credibility finding as a process of inference from other facts concerning the appellants’ behaviour. Those behaviours were the appellants’ response to their claimed first sexual encounter; the appellants’ travel and time apart after forming what they claimed to be a strong attachment to each other; and their attendance at a night club and sauna known to be popular with gay men and women.

39    The Full Court summarised the principles applicable to the review of adverse credibility findings in DAO16at [30]:

(1)    While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:

135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added)

(3)    By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].” Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny…

(citations omitted)

(5)    A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

40    The present appeals raise the question whether particular facts (items “a” to “e” in the amended notices of appeal) are rationally probative of the fact in issue (the appellants’ claimed homosexuality and homosexual relationship). The question whether one fact is rationally probative of a fact in issue lies at the heart of the rules of evidence, both at common law and under statute. While the Tribunal is not bound by the rules of evidence, the foregoing authorities show that it is an implied condition of the statutory power given to the Minister under s 65 of the Act that the Minister’s state of satisfaction must be arrived at rationally, which includes the implied condition that findings of fact be based on evidence that is rationally probative of the fact in issue.

41    A fact is rationally probative of another fact (and thereby relevant at common law and under statute) if the fact, according to the ordinary course of events and either taken by itself or in connection with other facts, proves or renders probable the past, present or future existence or non-existence of the other fact: Goldsmith v Sandilands (2002) 190 ALR 370; 76 ALJR 1024; [2002] HCA 31 at [31] per McHugh J citing Stephen, Digest of the Law of Evidence (5th ed, 1887) Art 1. Two aspects of the foregoing definition should be highlighted. First, the assessment is based on the ordinary course of events. It is an “objective test grounded in human experience”: Harrington-Smith v Western Australia (No 7) 130 FCR 424 at [11] per Lindgren J. Second, while an individual fact taken by itself may not be probative of a fact in issue, it may be probative when considered with other facts and the assessment must be made in the context of all other evidence.

Consideration of Appeals

Appeal items “a” and “b”

42    By items “a” and “b” of their amended notices of appeal, the appellants contend that the Tribunal's assessment of their claims to homosexuality was illogical insofar as the Tribunal relied on the evidence of the appellants concerning their behaviours following their first sexual encounter, specifically whether they discussed the implications for them of the sexual encounter or went about their normal routine and when they next had sexual intercourse. The appellants submitted that the basis for the Tribunal’s reasoning was not evident or intelligible from the reasons and there is no logical and probative basis for it.

43    The Minister’s submissions focused on the Tribunal’s finding that the appellants had given different accounts of the immediate aftermath of their claimed first sexual experience. The Minister noted that:

(a)    When BFI16 was asked whether the appellants talked afterwards, he said “yes we did, we were very open to each other” and indicated that “they talked that night and the next day and for a few days as well” (BFH16 reasons at [36]), whereas BFH16 said that the appellants had not talked that night, and as for the next day “he was not sure as it was a long time ago” and “they went about their normal routine and had ‘Uni’ as well” (BFH16 reasons at [36]).

(b)    When BFI16 was asked when the appellants next had sex, BFI16 said he thought it was after 1-2 days or 2-3 days whereas BFH16 said it was later on “a couple of weeks later” (BFH16 reasons at [35]).

44    The Minister submitted that there is nothing remarkable about the Tribunal’s assessment that BFH16’s evidence on the first point was “implausible”, in the sense that it did not have the appearance of truth or probability. It was open to the Tribunal not to be satisfied that it was probable that BFH16 would not recall whether he and BFI16 had discussed an event that presumably would have been of great significance to them. For similar reasons, it was open to the Tribunal to consider the significant discrepancy in the appellants’ evidence as to when they next had sex as bearing on the plausibility of their story.

45    In our view, the Tribunal’s reasoning with respect to the immediate aftermath of the appellants’ first sexual experience is logically flawed and thereby irrational. The flaws in reasoning have a number of dimensions. It is necessary to give close consideration to the findings made by the Tribunal and its process of reasoning to those findings.

46    The Tribunal’s reasoning at [30] and [34]-[37] appears to involve the following steps:

(a)    First, the Tribunal records each appellant’s answer to questions asked by the Tribunal whether they discussed their sexuality on the night of the first sexual encounter and when they next had sex. There was a difference in the answers given.

(b)    Second, the Tribunal did not accept (in other words, found implausible) the explanation offered by the appellants for the difference in their answers to the Tribunal’s questions, namely that the events occurred 6 years ago and it was difficult to remember. The Tribunal reasoned that, having regard to the appellants’ background (Pakistani men from conservative families and social milieu), it is implausible that they would not remember “two very significant details” of what happened in the immediate aftermath of their claimed first sexual experience.

(c)    Third, the Tribunal found implausible BFH16’s evidence that, following their first sexual encounter, the appellants went about their normal routine and he could not remember when they discussed the implications of what happened or whether they next had sex a few days later or a couple of weeks later.

(d)    Fourth, the above findings undermined their claim to be in a homosexual relationship or homosexual.

47    There is a lack of logic in each of steps (b), (c) and (d). Each of steps (b) and (c) depend on assumptions about the expected psychological response of the appellants, and particularly BFH16, to their first sexual encounter. The assumptions are twofold: that the appellants would not go about their normal routine but would immediately in some manner discuss the implications of their first sexual encounter; and that the appellants would remember doing so and would also remember (with a degree of precision reflecting the difference between 2 to 3 days or 2 weeks) when they next had sex. The Tribunal implicitly reasoned that the fact that BFH16 in particular did not have the expected psychological response is probative of (makes more likely) the conclusion that the appellants have fabricated their claimed first sexual encounter.

48    The expressed bases for the assumptions are the facts that: the appellants both claim to have had homosexual feelings since they had been at high school in Pakistan; both claim not to have had sexual intercourse previously; both claim not to have known the other was homosexual before the night of their first encounter; and both claim to come from conservative families and a conservative social milieu. In our view, those facts, on their own, are not rationally probative of the assumptions. It cannot be said that the psychological reactions of a couple to their first sexual encounter are matters of common human experience. Indeed, to the extent that anything can be said about such matters from common human experience, it would be that the psychological reactions of a couple to their first sexual encounter are likely to vary widely, reflecting the wide range of human emotional attributes. The assumptions made by the Tribunal about the expected psychological response of the appellants, and particularly BFH16, to their first sexual encounter could not be established without other evidence, perhaps psychological evidence. No other relevant evidence was before the Tribunal and, accordingly, the assumptions were not proved.

49    There is a further difficulty with the Tribunal’s process of reasoning from steps (b) and (c) to step (d). The Tribunal found implausible BFH16’s evidence that, following their first sexual encounter, the appellants went about their normal routine and he could not remember when they discussed the implications of what happened or whether they next had sex a few days later or a couple of weeks later. However, no such finding was made with respect to BFI16’s evidence that the appellants discussed the implications of their first sexual encounter that night and they next had sex a few days later. Logically, even if there were a basis to reject BFH16’s evidence, the rejection of that evidence cannot support the rejection of BFI16’s evidence. If two people give a different account of an event and the evidence of one is rejected, that does not provide a logical basis on which to reject the evidence of the other. Indeed, if the Tribunal’s reasoning with respect to BFH16’s evidence had a logical basis, the same reasoning would tend to support the reception of BFI16’s evidence, but it is unnecessary to go that far. In its reasons in respect of both applications, the Tribunal failed to confront the evidence given by BFI16 and its significance for the Tribunal’s decision.

Appeal item “c”

50    By item “c” of their amended notices of appeal, the appellants contend that the Tribunal's assessment of their claims to homosexuality was illogical insofar as the Tribunal reasoned that, if the appellants were in a committed relationship as they claimed, they would not have engaged in the pattern of travel that occurred between February 2011 and April 2013 and would have taken active steps, including travelling together, to minimise time apart. The appellants submitted that the Tribunal appears to have rejected the appellants’ claim on the basis that, if the appellants were truly in a committed relationship, they would have been willing to take particular risks to minimise their time apart. The appellants argued that the Tribunal's reasoning is attributable to no more than its own views about the sacrifices and priorities that attend committed relationships.

51    The Minister submitted that, contrary to the appellants’ submissions, the Tribunal’s reasoning did not presume that if the appellants were in a relationship at the time “they would have been willing to take particular risks to minimise their time apart”. Rather, the Tribunal did not accept the appellants’ assertions that they did not wish to travel at the same time as it might raise suspicion they were in a relationship, given the circumstances that they had lived together in a two-bedroom apartment with BFH16’s brother for over four years.

52    The Tribunal recorded (at [38]) that the evidence provided by the appellants showed that they had spent a long time apart from February 2011 through to April 2013: around 38 weeks in total (we interpolate that the period apart is 38 weeks out of approximately 26 months or 111 weeks, being approximately one third of the time). The Tribunal noted that BFI16 was away on two occasions - for 5 weeks and 10 weeks, respectively, in 2011 - and, a month after BFHI16 returned to Australia, BFH16 departed for 9 weeks. Subsequently, in December 2012, BFH16 departed for 8 and a half weeks and, two days after BFH16 returned to Australia in February 2013, BFI16 departed for five and a half weeks.

53    The details of that travel are recorded in the delegate’s decision. It is a little clearer to have regard to the details which show the following:

(a)    BFI16 departed Australia on 13 February 2011 and returned 19 March 2011, a trip of about 5 weeks.

(b)    BFI16 again departed Australia on 14 September 2011 and returned 20 November 2011, a trip of about 9 ½ weeks.

(c)    BFH16 departed Australia on 30 December 2011 and returned on 4 March 2012, a trip of about 9 weeks.

(d)    BFH16 again departed Australia on 27 December 2012 and returned on 24 February 2013, a trip of about 8 ½ weeks.

(e)    BFI16 departed Australia on 26 February 2013 and returned 4 April 2013, a trip of about 5 ½ weeks.

54    When the details of the travel are considered, it can be seen that the appellants were in Australia together for the greater part of the 2011 year (about 38 out of 52 weeks) and the 2012 year (about 40 out of 52 weeks). It might also be observed that the appellants’ explanation of their travel, as recorded by the Tribunal at [38], is hardly remarkable. In circumstances where they claimed to have few friends in Australia and, apart from one brother, their friends and family are all overseas, it is unsurprising that they travelled overseas for family events such as weddings, funerals and others.

55    Nevertheless, while the probative value of the evidence with respect to the appellants’ travel to Pakistan between February 2011 and March 2013 is slight, in our view the Tribunal’s reasoning is not irrational. Ultimately, the Tribunal merely found that “the length of stays away (three of 8-10 weeks) and the pattern of travel (no overlap, departures of one shortly after the other returned to Australia) does not support the assertion that [the appellants] were in a relationship at that time” (at [38]). In other words, the Tribunal’s finding was a negative one – that the travel did not support their claims. The Tribunal did not find that it disproved their claims. The Tribunal’s negative finding is based on the assumption that two persons in a committed relationship would seek to avoid, if possible, their separation. In our view, the assumption has some foundation in common human experience, albeit that the boundaries of the assumption are as varied as human relationships. In our view, the evidence of the appellants’ travel satisfies a minimum level of probative value in that, it makes more likely, albeit very slightly, the possibility that the appellants are not in a committed homosexual relationship as claimed. The Court’s role is not to assess the merits of the Tribunal’s decision, including the weight to be given to the evidence. The Court will only intervene if there is no logical connection between the fact proved by the evidence (here the travel undertaken by the appellants) and the fact in issue (their claimed homosexual relationship).

Appeal items “d” and “e”

56    By items “d” and “e” of their amended notices of appeal, the appellants contend that the Tribunal's assessment of their claims to homosexuality was illogical insofar as the Tribunal relied on the appellants’ evidence that: they wished to keep their homosexual relationship secret and yet frequented gay venues; and the appellants’ evidence that they were in a committed relationship and yet frequented venues where they might be propositioned for sex. In relation to the first aspect, the appellants submitted that the Tribunal's logic was flawed because, to the extent the appellants risked discovery of their relationship by attending a gay venue, the risk was minor because it was a risk of discovery by other individuals at the same gay venue. In relation to the second issue, the appellants submitted that there was no apparent basis for the conclusion that a homosexual couple in a committed relationship would not wish to attend a gay venue where they might be propositioned for sex. In that regard, the appellants relied on the report of Mr Strmelj, a psychologist, who explained that the appellants’ attendance at gay venues assisted them to understand that being homosexual can be socially acceptable.

57    In relation to the first issue, the Minister submitted that the Tribunal’s reasoning had a logical basis. The Tribunal found an inconsistency in the appellants’ desire to keep their relationship secret while attending gay venues. The Minister observed that it could not be assumed that all people attending a gay venue were gay, and inevitably attendance ran the risk of disclosure through being photographed. In relation to the second issue, the Minister submitted that the Tribunal had regard to the report of Mr Strmelj but found that the report was largely a recounting of matters reported to the psychologist by the appellants. The Minister submitted that the appellants’ criticism of the Tribunal’s findings invited merits review.

58    In relation to item “d”, as set out above, the Tribunal found (at [40]) that the appellants’ stated wish to keep their relationship a secret and not to risk anyone finding out about it was inconsistent with their claim to frequent a gay club, the 'Robert Peel' in Collingwood, and to have attended a gay sauna, the 'Subway Sauna' on Flinders Street, Melbourne. In our view, that finding was open to the Tribunal and not illogical. The evidence supports the Tribunal’s finding that the appellants wished to keep their relationship secret, even in Australia. In his statement dated 5 February 2014, BFH16 stated that the appellants never disclose their relationship to anyone, whether friends or family. In his statutory declaration dated 20 February 2014, BFI16 stated that there was only one person who knew about the appellants’ homosexual relationship. It is not illogical for the Tribunal to reason that there is a degree of inconsistency between the appellants’ stated desire to keep their relationship secret and attending gay venues. While the significance of the inconsistency must be regarded as modest, as noted above the Court’s role is not to assess the merits of the Tribunal’s decision, including the weight to be given to the evidence.

59    In relation to item “e”, contrary to the premise of the appellants’ submissions, the Tribunal did not find that a homosexual couple in a committed relationship would not wish to attend a gay venue where they might be propositioned for sex, and did not disbelieve the appellants by reason of such an inconsistency in their evidence. While the Tribunal asked the appellants why they wished to attend a gay venue where they might be propositioned for sex when they were in a committed relationship, its finding at [40] was confined to the issue of discovery. As set out above, the Tribunal found the appellants’ claimed behaviour of deliberately putting themselves in an identifiably gay male environment, including one which facilitates casual gay sexual encounters, where they have no control over who they might encounter or be seen by, is at odds with their claim that they did not want to take any risks lest anyone, particularly their families, should become aware of their homosexual relationship. For the reasons given in the preceding paragraph, that finding was not illogical in our view.

Materiality of error

60    For the reasons given above, we consider that the Tribunal’s reasoning with respect to the immediate aftermath of the appellants’ first sexual encounter is logically flawed and thereby irrational. It is necessary to consider whether that error constitutes jurisdictional error such that the Tribunal’s decision should be set aside. The applicable test is whether the Tribunal’s erroneous reasoning deprived the appellants of the possibility of a successful outcome; in other words, was the erroneous aspect of the Tribunal’s reasoning sufficiently significant that it could have made a difference to the decision that was made: Hossain at [29] – [31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45] per Bell, Gageler and Keane JJ.

61    In our view, the Tribunal’s erroneous reasoning was material. In context, the erroneous reasoning was one of a relatively small number of circumstantial matters from which the Tribunal concluded that the appellants were not homosexual as claimed. The second matter relied on by the Tribunal, the travel patterns of the appellants between February 2011 and April 2013, could only be regarded as having slight probative value on the ultimate fact in issue. The third matter, the appellants’ attendance at gay venues when they wished to keep their relationship secret, had only modest probative value. This is not a case in which the erroneous findings were trivial and the balance of the findings made by the Tribunal could be regarded as providing overwhelming support for the Tribunal’s ultimate conclusion. The opposite is the case.

Conclusion

62    For the reasons given above, the appeals should be allowed and the matters remitted to the Tribunal for re-determination according to law by a different member of the Tribunal. The appellants should be awarded their costs of the appeals and in the Court below.

Associate:

Dated:    31 March 2020

REASONS FOR JUDGMENT

SNADEN J:

63    I have had the privilege of reading a draft of the majority’s judgment. I gratefully adopt their Honours’ recitation of the relevant background, and their thorough summary of relevant legal principle. I agree with the bulk of their Honours’ conclusions and the reasoning that underpins them. Respectfully and with some hesitation, however, I regret that I am unable to agree with their Honours as to the outcome of the appeals. For reasons that warrant only brief articulation, I do not accept that either of the Tribunal’s decisions was the product of (or was otherwise affected by) jurisdictional error. I would dismiss both appeals.

64    Before the Tribunal, each of the appellants asserted that he should be afforded a protection visa on the basis of what he claimed was his well-founded fear that he would be subjected to relevant persecution if he returned to his native Pakistan. That persecution was said, in each case, to arise by reason of the appellant’s homosexuality. The Tribunal, like the Minister’s delegate before it, concluded that the appellants were not, in fact, homosexuals.

65    En route to making that finding in each case, the Tribunal considered (amongst other things to which reference need not here be made) evidence that the appellants separately gave about the events that surrounded what they each claimed was their first sexual encounter together. That evidence was, in some respects, inconsistent. In another, the Tribunal found it implausible. I agree with—and, again, gratefully adopt—their Honours’ summary of the reasoning process upon which the Tribunal embarked prior to forming its conclusion as to the appellants’ sexual orientation (above, [46]).

66    Thereafter, however, I respectfully depart from the reasoning of the majority on the aspects of the appeals concerning that evidence (aptly and conveniently described in the majority judgment as appeal items “a” and “b”).

67    In doing so, I acknowledge the scope for legitimate criticism of the Tribunal’s reasoning, which is fairly described as thin, perhaps even tenuous. Regardless, at issue in the present case is whether the Tribunal’s conclusion that the appellants are not homosexual was one that was not open to be drawn, whether because the reasoning process upon which it was founded was irrational or illogical (in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (Gummow A-CJ, Heydon J, Crennan J, Kiefel J, Bell J)) or otherwise (and to the extent applicable) was legally unreasonable (in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell, Gageler JJ)). By his written submissions, the first respondent contended as follows (references omitted and original emphasis):

22.    In context, there is nothing remarkable about the Tribunal’s assessment that BFH16’s evidence [that the appellants did not discuss their sexual encounter on the night that it was said to have occurred, that he could not recall whether they did so the following day, and that they each “went about their normal routine”] was “implausible”, in the sense that it did not have the appearance of truth or probability. It was open to the Tribunal not to be satisfied that it was probable that BFH16 would not recall whether he and BFI16 had discussed an event that presumably would have been of great significance to them. For similar reasons, it was clearly open to the Tribunal to consider the significant discrepancy in the appellants’ evidence as to when they next had sex as bearing on the plausibility of their story.

23.    Indeed, part of the Tribunal’s reason for not being so satisfied of the plausibility of the appellant[s’] evidence in this respect was the appellant[s’] personal histories, cultural background and social milieu (these matters tending to suggest that the appellants’ claimed sexual relationship had even greater significance and memorability). This is not a case where the Tribunal has conducted its task blind to evidence of cultural norms.

24.    The appellants submit that the material before the Tribunal “tended to undermine the logic and force of the standard imposed” (emphasis added). And they submit that “[o]n balance”, certain evidence (for example that “Pakistani homosexuals were ‘deeply closeted’”) suggests that the Tribunal’s approach was “unreasonable”. But these submissions are apt to encourage the Court to engage in merits review. They are apt to encourage the Court to form its own view of the probability of evidence, when the view that [the] Tribunal adopted was clearly open to it. And, contrary to the appellants’ submissions, the Tribunal’s conclusions of implausibility did not involve or entail conclusions to the level of “certainty” about how persons in the appellants’ claimed circumstances would behave.

68    With respect, those submissions are unimpeachable. It was open to the Tribunal to reason, in part by reference to the nature of, and inconsistency in, the evidence that the appellants gave about what they did in the hours and days following their first sexual encounter, that they might not be (or are not) homosexual. The appellants’ failure to recite a consistent narrative about the discussions that they had regarding their encounter, or about what they did in the aftermath of it, is, of course, hardly conclusive as to their sexuality, particularly given that those inconsistencies can, to some degree and fairly, be described as minor (or relatively so). However, that is not the inquiry that presents in these appeals. At issue here is whether those inconsistencies might serve as an evidential foundation of which the Tribunal could legitimately take account—rationally and logically, with an apparent and intelligible justification, and in a way that was not capricious, arbitrary or plainly unjust—on its way to concluding that the appellants are not homosexual. Was it (to put it more bluntly) irrational, illogical, capricious, arbitrary, or plainly unjust—or any of the other equivalent adjectives that courts have employed when discussing this area of the law—to expect that, if they were homosexual, the appellants would have discussed their actions and would be able to recite consistent narratives about matters related to what was surely a significant event in both of their lives?

69    It was not. There was no want of logic, rationalism or intelligible justification, nor any caprice, plain injustice or manifest unreasonableness, inherent in the Tribunal’s apparent expectation that the appellants would have discussed the implications of—and would be able to recall, consistently and with at least a degree of particularity, details related to—an event that would have been of such obvious significance to them. Respectfully, the Tribunal did not require, as the appellants effectively submitted and as the majority accepts, other evidence (whether expert psychological evidence or otherwise) in order to proceed upon either assumption. Evidence as to how those in the appellants’ circumstances might ordinarily react to the events that they said had transpired might well have served as the difference between the Tribunal acting or not acting upon assumptions that, had those events occurred, the appellants would have behaved in a certain way, and would have recalled their behaviour consistently and in some detail. That, in turn, might have served as the difference between the Tribunal’s making a right or wrong factual finding about their sexual orientation (in either case, within its jurisdiction to do so). But the Tribunal was entitled to reason, consistently with ordinary human experience, that the appellants’ behaviour following—and their failure to consistently recall details related to—an event that would assume obvious significance to any newly-homosexual couple (namely, their first sexual experience together) was relevantly probative of their sexual orientation. That evidence was logically and rationally probative of whether or not the sexual encounter in question occurred, which, in turn, was something that could fairly inform (if, indeed, it did not dictate) the Tribunal’s assessment of the appellants’ sexual orientation. There was no need for other evidence to establish a basis for the unremarkable assumptions—themselves informed by equally unremarkable human experience—upon which the Tribunal’s reasoning proceeded.

70    Whether the characteristics of the appellants’ evidence upon which the Tribunal fixed were probative of the central factual inquiry (are the appellants homosexual?) was at least a question upon which reasonable minds could fairly differ: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 648 [131] (Crennan and Bell JJ). That being so, the appellants’ central contention in these appeals emerges for what it is: an invitation to embark upon the review of the decisions’ merits. The appellants’ submission distils to little more than that the Tribunal was wrong to assume that the appellants would behave in a certain way following their first sexual encounter or would remember (and be able consistently to recite) what they did in the aftermath of it; and that, in consequence of those errors (or either of them), it came to the wrong conclusion about their sexual orientation. That submission might have much to commend it; but not in the context of judicial review.

71    Whereas the majority would uphold as valid (or otherwise as not reflective of jurisdictional error) only some of the bases upon which the Tribunal concluded that the appellants are not homosexual, I would uphold them all: those that are the subject of appeal items “a” and “b” for the reasons outlined herein; the rest for the reasons that the majority identifies. Neither decision of the Tribunal was the product of jurisdictional error and, for that reason, both appeals should be dismissed. As the appellants requested, I would hear from the parties further as to the question of costs.

Associate:

Dated:    31 March 2020