FEDERAL COURT OF AUSTRALIA

SZTSA v Minister for Immigration and Multicultural Affairs [2025] FCA 1330

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s title be amended to “Minister for Immigration and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    INTRODUCTION

1    On 20 April 2011 the appellant, a citizen of Mongolia, applied for a protection visa. That application was refused and the refusal decision was upheld on review. On 31 July 2013, the appellant made a further application for a protection visa, based upon complementary protection claims under s 36(2)(aa) of the Migration Act 1958 (Cth). On 5 December 2014, a delegate of the first respondent Minister refused that application under s 65 of the Act.

2    The appellant then applied to the second respondent Tribunal for review of the 5 December 2014 decision. On 27 January 2017, the Tribunal affirmed the 5 December 2014 decision, and published its reasons for doing so: 1421008 (Refugee) [2017] AATA 155 (T).

3    The appellant applied to the (then) Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. The Circuit Court dismissed that application: SZTSA v Minister for Immigration [2019] FCCA 2967. From that decision, the appellant appeals to this Court.

4    The appeal has been conducted by reference to an amended notice of appeal, which was filed by consent after the appellant obtained pro bono representation.

5    For the reasons developed below, the appeal must be dismissed.

B.    THE TRIBUNAL’S REASONS

6    It is convenient to start with the Tribunal’s reasons.

7    The Tribunal commenced those reasons by providing an overview of the appellant’s application and of the hearing before the Tribunal (T[1] to [11]).

8    At T[13], the Tribunal identified that the issue for determination was whether the appellant met the “complementary protection criterion”, being the criterion specified in s 36(2)(aa) of the Act. Section 36 provided, in so far as is presently relevant:

(2)     A criterion for a protection visa is that the applicant for the visa is:

...

(aa)     a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2A)     A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)     However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

9    The Tribunal recorded (at T[23] and [24]) its satisfaction that the appellant was a citizen of Mongolia and that Mongolia was the “receiving country” for the purposes of s 36(2)(aa) of the Act.

10    At T[25] to [28] the Tribunal recorded:

Assessment of Claims

25.    [The appellant’s] claims for protection are contained in the statutory declarations and submissions set out above. He also discussed his claims with the delegate [in] October 2014. He gave oral evidence on his claims at a Tribunal hearing on 28 September 2016.

26.    [The appellant] and his former partner ([Ms B]) and [Child 1] arrived in Australia in January 2011. [The appellant] claimed that he has a bisexual orientation and [Ms B] is a lesbian and they formed a companion relationship, lived together in Mongolia and [Ms B] gave birth to their [Child 1] so they could represent themselves as a heterosexual married couple in Mongolian society. [The appellant] claims that the purpose of the relationship was so they could reduce social and family pressure and avoid discrimination. They were friends and are parents of their child but are not in a long term sexual relationship.

27.    Previous decision makers have treated [the appellant’s] claims with some scepticism. They have considered that the applicant’s history suggests that he has a heterosexual orientation as he had been previously married and he and his first wife had a child and he then formed a relationship with [Ms B] and they have had a child together.

28.    The Tribunal has considered the evidence relating to [the appellant’s] sexual orientation and how it is expressed and it has also considered the evidence relating to the current treatment of Lesbian, Gay, Bisexual and Transgender (LGBT) individuals in Mongolia.

11    At T[34] to [52], and after setting out some matters of background, the Tribunal addressed the question: “What is [the appellant’s] sexual orientation?”. The Tribunal first set out the various claims made by the appellant:

34.    [The appellant] stated that he married his first wife in 1997 when he was [age]. [The appellant] and his first wife met whilst they worked at the same [workplace] and they knew each other for 3 years. He claimed that he and his wife had a sexual relationship, she became pregnant and they married. His parents encouraged him to marry; however, the marriage only lasted for [number] months. They lived with their parents during the marriage.

35.    [The appellant] claimed that the marriage broke down when [the appellant] told his wife that he was bi-sexual. She was shocked by this disclosure and they separated in 1997 and divorced in 2005. He and his wife had a [Child 2] who is now [age] and he told the Tribunal that he has not had any contact with his [Child 2] except for one occasion when [Child 2] was [age]. His wife refused to allow him contact; however, he told the Tribunal he did not take any action in the courts to have greater contact with his [Child 2].

36.    He claimed his mother was told he had sexual contacts with other men. He denied he was interested in men but she tried to use a “Buddhist monk” to cure him on one occasion.

37.    He told the Tribunal that he considered himself to be bi-sexual and is attracted to men and women. He stated that Mongolia has a small population and society does not accept homosexuality or bi-sexuality. He claimed that it was difficult to be open about sexuality and he had to hide his attraction to men in Mongolia because it was not socially acceptable.

38.    He stated that he had sexual contact with a few foreigners in Mongolia and a secret relationship with [someone] who was married with a family. He did not have any long-term relationships.

39.    He stated that he decided to remarry for his self-protection so that the Mongolian community would not consider that he was LGBT. His friend [Ms B] had the same problem; she was a lesbian and had encountered family and social pressure to get married. They decided to form a sham relationship and hide their sexual orientation. They met in 2005 at a small party through mutual friends. He was aware she was a lesbian and had a sexual partner but they decided to go through a marriage for her family.

40.    [The appellant] and [Ms B] decided to have a child and they moved in together in 2009 before their [Child 1] was born. They lived together in the apartment together but did not have an ongoing sexual relationship. They did have sexual contact so that they could have a child but [Ms B] fell pregnant after that one contact; he claimed that IVF and artificial insemination were not practical options for the couple in Mongolia. They pretended to the outside world that they were living as a normal heterosexual couple.

41.    He claimed he had occasional sexual partners in Mongolia, mainly with foreigners but when he gave evidence about relationships his evidence was scant, vague and lacking in specificity.

42.    When asked how he saw his sexual preference he stated he thought about 80% preference for male partners and 20% preference for female partners.

43.    [The appellant] gave evidence that he, [Ms B] and their [Child 1] travelled to [Country 1] and [Country 2] together and then travelled to Australia in 2011. They all lived together in the same residence for about a year. [The appellant] explained that [Ms B] could not speak English and he felt he had to stay to help [Ms B] and their [Child 1] until they had settled in; they also shared costs. When she was more independent and did not need help they each found their own places to live in April 2012 although [the appellant] sees his [Child 1] each week and has [Child 1] on school holidays.

44.    [The appellant] stated that he did not have any sexual contacts when he first arrived in Australia. He did not know what to do when he first arrived then he was taken into detention for a short time and discovered he had [a medical condition]. When he was released he went through a treatment regime which lasted a long time and he became depressed. It was only after he finished his treatment that he started looking to follow his preferred lifestyle about 18 months before the hearing. He went to a few gay venues and pubs. He had a relationship with a person who had initially stated he would give evidence on [the appellant’s] behalf but became reluctant to do so given he was a temporary visa holder. [The appellant] did not use any gay websites and found the best way to meet people was in bars. He does not like to reveal his orientation to the Mongolian community which is a close-knit community.

45.    In September 2016, [the appellant] provided a further statutory declaration where he outlined his homosexual relationships from about 2015 and in particular from January 2016. He referred specifically to a six-month relationship to a [man] in early 2016, a [man] in 2016 and several casual sexual partners.

46.    [The appellant] provided one statutory declaration from a witness who stated that he had arrived in Australia and obtained a protection visa on the basis of his homosexuality in 2009. The witness stated he met [the appellant] in October 2015 at a party where most of the party guests were homosexual. As the witness and his partner were homosexual and Mongolian [the appellant] appeared pleased to meet them. They exchanged contact details. The witness organised a sex party at his house and [the appellant] attended and the witness observed [the appellant] having homosexual sexual contact with other guests.

12    The Tribunal then set out its assessment of the appellant’s claims:

47.    The Tribunal has considered evidence of [the appellant’s] relationships in Mongolia, his travel with [Ms B] to [Country 1] and China, his cohabitation with [Ms B] in Australia and his explanation for these events. It has also considered the evidence he has given regarding his history in Australia, his lack of sexual contacts until 2015 and the evidence given by his friend [Mr A] regarding his observations of [the appellant’s] behaviour at a bar and a party he held in July 2016.

48.    Whilst the Tribunal is troubled by many aspects of his evidence it considers that it is possibly true that [the appellant] has had some homosexual contacts in Mongolia and Australia although there is little supportive evidence of these contacts other than the statutory declaration of [Mr A]. [The appellant] claims that he is bi-sexual; however, he has been concerned to keep the nature of his sexuality hidden in Mongolia and to a large extent in Australia.

49.    Taking into account the past conduct of [the appellant] the Tribunal finds that [the appellant] has had a heterosexual partner, heterosexual contact with [Ms B] and is the father of two children. He is [age] and claimed he had some casual homosexual contacts in Mongolia but he has not had a long term partner in Mongolia and gave little detail at hearing about his claimed bi-sexual lifestyle in Mongolia. The Tribunal accepts that he may have occasionally experimented with homosexual sexual contact but did not wish to live an openly homosexual lifestyle because he does not identify as a homosexual or bi sexual man.

50.    The Tribunal also notes that [the appellant] obtained a statement dated [in] December 2012 from [names] who had employed [the appellant] to assist with renovations. They wrote a letter of support but made no mention of the nature of [the appellant’s] claims and their support was very general in its terms.

51.    [The appellant’s] evidence regarding his lifestyle in Australia supports the Tribunal’s finding that he does not identify as a homosexual or bi sexual man. [The appellant], [Ms B] and their child travelled to [Country 1] and [Country 2] together before they travelled to Australia on [temporary] visas. When they first arrived they lived in the same residence for a significant period of time.

52.    In these circumstances, the Tribunal considers that although he may have had occasional sexual contacts he does not identify as a bi sexual man and does not fear harm if he returns to Mongolia as he does not intend to pursue a homosexual or bi-sexual lifestyle.

13    The Tribunal next addressed the question: “Has [the appellant] suffered any harm or mistreatment in Mongolia?”. Relevantly for present purposes, the Tribunal stated:

…

59.    [The appellant] made claims in an earlier written statement that he feared his family disapproval if he returned and was concerned about his father and brother’s reaction to his bi-sexuality. The Tribunal does not accept he identifies as a bi sexual man and does not accept his family will harm him if he returns. The Tribunal notes his evidence that one of his brother’s lent him money to leave Mongolia and that [the appellant] has transferred property to him to repay the debt. [The appellant] also stated he has regular contact with his family suggesting they are on good terms.

60.    [The appellant’s] evidence relating to his life in Mongolia including the long term operation of a successful small business, forming a companion relationship with [Ms B], having a [Child 1] and the purchase of an apartment in 2009 indicates [the appellant] conducted his life without interference from other persons. The Tribunal does not accept that his lifestyle in Mongolia or evidence he gave at hearing supports his claims of serious mistreatment by his former wife’s brother and police inaction in the face of serious threats of harm. It does not accept that if he returned to Mongolia he would face harm from his former wife’s brother, his associates or his own family.

14    The Tribunal then addressed the question: “What is the situation for members of the LGBT community in Mongolia?”, as follows:

61.    County (sic) information indicates that in the past the LGBT community has faced a history of significant social discrimination and some individuals have suffered significant harm. The LGBT community has been closeted and some crimes have gone unreported due to social stigma and secondary victimisation by police.

62    However, as discussed with [the appellant] the current situation has significantly improved. In 2014 USAID and the UNDP produced a report “Being LGBT in Asia; Mongolia Country Report” which reviewed the situation in 2014. By way of background it summarised the history as follows;

LGBT discourse in Mongolia

The Mongolian language until recently contained no word to express homosexual relations or non-traditional sexual orientation and gender identity (SOGI). There is little evidence of broader understanding of or tolerance towards LGBT people in Mongolia before the 20th century. There were no published records about LGBT people after the introduction of socialism in 1924 and until the 1990s. Homosexual relationships were shrouded in secrecy in part due to limitations on free speech. It was only with the adoption of Mongolia’s democratic 1992 Constitution that a more pluralist discourse became possible with subsequent notions of homosexuality and non-traditional gender identities becoming recognized topics of discussion in Mongolia. Mongolian LGBT discourse is relatively new, and largely limited to the capital Ulaanbaatar.

To date, there is no published literature available on how diverse sexual orientation and gender identity was treated in Mongolia, suggesting that the subject entered into the public discourse only in the country’s recent history.

A broader human rights discourse emerged with the adoption of a new Constitution in 1992 and the country’s transition to a democratic society. The Constitution guarantees equal protection to everyone under the law and provides everyone with the right to freedom of opinion and expression. The Law on Non-Governmental Organizations (NGOs) was adopted in January 1997, and Tavilan, the first organization serving gay men was established in 1999. As is the case in many countries, in the early 2000s, LGBT rights were closely linked with sexual health promotion targeting men who have sex with men (MSM) and a number of NGOs formed with the dual goals of promoting rights alongside sexual health. The LGBT Centre, the first explicitly pro-LGBT advocacy and human rights organization was formed in 2007, but was officially registered only in 2009 due to procedural challenges. In 2013, The LGBT community held the first-ever Pride Week in Mongolia.

63.    The report goes on to discuss the overall context of LGBT rights in Mongolia. It notes

Legal environment: The Constitution of Mongolia and other laws do not explicitly discriminate on the basis of sexual orientation and gender identity (SOGI). However, specific legal reforms are required in order to keep up with social changes and provide protection for LGBT people. Progress is being made in this area. By the amendment made in Article 20(1) of the Civil Registration Law in June 2009, a sex change can be registered in birth certificates or citizen identification cards based on a medical certification. Revisions made in the Law on HIV and AIDS in 2012 introduced protection of privacy and confidentiality of people living with HIV (PLHIV).A draft revision of the Criminal Code criminalizes discrimination based on SOGI. New draft revisions in the Law on Domestic Violence and the Law on Labor include provisions on SOGI. However, marriage is still defined as a union between a man and a woman which effectively prohibits same-sex or non-traditional gender marriages and excludes these partnerships from the right to adopt children, property rights, and issues relating to ending relationships. The constitutional clause on non-discrimination should include an open-ended category “or other basis” to ensure the principle of equality for all including LGBT people.

Institutional environment: Mongolia’s National Human Rights Commission has raised awareness about LGBT rights and the need to introduce legislation that bans discrimination based on SOGI. There is little sensitization among civil servants, including health professionals and law enforcement officers about LGBT human rights and preventing discrimination based on SOGI. The majority of LGBT people surveyed reported that they have experienced some form of abuse by law enforcement which in some cases included blackmail and even violence due to their SOGI.

Cultural and social environment: Mongolian culture is generally not open or welcoming to alternate or non-traditional sexual orientations and gender identity. Religion does not appear to play a significant role in contributing to negative attitudes but traditional norms place pressure on LGBT people to conform or hide their identities. At the personal level, significant violence towards LGBT persons has been recorded, including severe forms perpetrated by ultra-nationalist groups and individuals as well as instances of harassment and stigma.

This report also looks at the role of international human rights mechanisms in Mongolia. Mongolia has ratified seven core human rights treaties, which have helped create the context for promoting LGBT rights, with the Universal Periodic Review (UPR), process and other UN reviews since 2010 leading to recommendations to recognize SOGI and protect LGBT rights. The reporting process required by the UPR has put pressure on the government to abide by international human rights standards. In the last few years, the Government of Mongolia made progress in reporting to international human rights mechanisms by setting up working groups and organizing consultations with civil society before submitting its reports. LGBT rights issues have been part of these consultations.

64.    The report notes that there are 4 LGBT organisations in Mongolia; the LGBT Centre, Youth for Health Centre, Human Rights Youth-Health Support Center and Together Centre. All of these organisations are located in Ulanbaataar. These organisations have been successful in building partnerships with NGO’s like the Open Society Forum (OSF), the Centre for Human Rights and Development (CHRD), Globe International, Monfemnet – the National Network of Women NGOs, the National Centre Against Violence (NCAV), Oyunii Darkhlaa, National AIDSFoundation, Human Development Reproductive Health/Rights (NGO Network), Mongolian Women’s Foundation.

65.    The report notes the development of community programmes such as Gay Pride Week which commenced in September 2013, the Beyond Blue Sky multimedia exhibition, the Blue Sky Film Festival.

66.    The report notes that there continues to be a lack of social and familial understanding of LGBT issues but that NGO’s have taken an active role in supporting families and helping individuals explain their sexual orientation to their families.

67.    The report noted that there were still significant challenges in the areas of workplace discrimination, education, police attitudes to LGBT and social pressure to conform to traditional gender roles.

68.    The LGBT Centre opened in 2009 has been instrumental in advocacy with UN bodies and which has led to the introduction of a new Criminal Code that effectively recognises crimes of discrimination. The law was originally planned to take effect in September 2016 but has been postponed to July 2017.

69.    In a media report published in May 2016 the director of the LGBT was asked about recent changes to the criminal code.

An anti-discrimination law was included in Mongolia’s most recent Criminal Code. What do you think about the final version of the law? What role did the LGBT Centre have in creating/shaping/passing the law?

Sexual orientation and gender identity came in for the first time as protected grounds in the new Criminal Code. It’s the first instance of protection because you can no longer discriminate against people on the basis of who they are.

It took us eight years to get passed, but we did it. And we did it especially thanks to the Centre’s international advocacy with UN treaty bodies, as well as the UN Human Rights Council. We got their recommendation for the government to outlaw hate crimes and hate speech, and they did it. Right now they’re termed [somewhat vaguely] as “crimes of discrimination” but when you look into the definition you will see that it’s actually hate crimes.

The law will begin enforcement from September 1, and that’s when we will see how much the police are able to understand [the law]. In order to ensure that they do understand the law and apply it properly, we’re doing a training for the police on what hate crimes are, how to recognize them, the kind of assistance that hate crimes victims require.

Mongolia doesn’t even know how far ahead it is in Asia thanks to our advocacy and knowledge, and thanks to the fact that we are articulating very well our needs. They don’t even know how their reputation has gone up internationally because this is the first-ever country in the region, in Asia, to have a hate crimes and a hate speech regulation in their criminal code. It’s brilliant.

70.    A Fulbright scholar recently reported on her work in the LGBT community in Mongolia. She noted

During my time as a Fulbright specialist in Mongolia, the LGBT Centre requested that I (a) help establish a crisis helpline, including developing internal policies and training volunteers; (b) develop a two-day, 16-hour training for practitioners on LGBT-affirmative work; and (c) meet with various faculty, educators and social workers throughout my visit to consult on research and other projects. We were successful in achieving these goals. We developed a training manual for helpline volunteers and provided culturally appropriate training in crisis response and counseling skills. I consulted at length with English-speaking Mongolian nationals to ensure that the training and materials were culturally relevant.

….The practitioner training was well attended. I was overwhelmed by the diverse attendees which included psychologists, professors, social workers, physicians, graduate and medical students, shelter workers and law enforcement personnel. The practitioner training addressed LGBT issues and mental health, violence within and toward the LGBT community, and LGBT advocacy and skills practice. These attendees also agreed that the most difficult part of the training was applying their professional skills to real-life situations they might encounter with LGBT clients. At the end of the workshop, participants were put into task groups to develop action steps they could apply in their work. They came up with ideas such as “adding more LGBT books to the university library,” “putting up posters” and “training my colleagues.” This experience was tremendously rewarding. I continue to communicate and collaborate with the contacts I made during my time in Mongolia. I hope to assist the LGBT Centre in their future goal of a nationwide survey of LGBT people across Mongolia.

The active involvement and energy of Mongolian youth gives me a lot of hope about the future of LGBT people in Mongolia. As the economy continues to improve, and as Mongolia strengthens its ties with countries that promote human rights for LGBT people, I think we will also see a decline in some of the extremist views currently being propagated. Social media such as Facebook is very popular in Mongolia, and my hope is that these outlets will allow the youth of Mongolia to educate themselves about LGBT issues around the world and apply their knowledge in their home country. With the new resurgence of Buddhism, I am hopeful that Mongolians young and old will embrace greater tolerance and understanding.

(emphasis in original; footnotes omitted)

15    The Tribunal next returned to the question which it had identified at T[13] as the matter requiring determination, namely: “Does [the appellant] meet the complementary protection criterion?”. The Tribunal addressed that question as follows:

71.    The Tribunal has considered whether on the evidence before it, that there would be a real risk that [the appellant] would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Mongolia.

72.    [The appellant], his former companion [Ms B] and [Child 1] left Mongolia lawfully on their own passports in 2011.

73.    As set out earlier in this decision the Tribunal does not accept that [the appellant] identifies as a homosexual or bisexual man or has adopted a homosexual or bi sexual lifestyle in Mongolia or in Australia. It does accept the evidence set out in his statutory declaration [in] September 2016 he has had occasional homosexual contacts in Australia following his attendance at the Departmental interview in 2014. However, it does not consider that these contacts indicate that [the appellant] has adopted a homosexual or bisexual orientation or will do so if he returns to Mongolia.

74.    The Tribunal does not accept that if [the appellant] returns to Mongolia he will adopt an openly homosexual or bisexual lifestyle. In coming to this conclusion the Tribunal does not consider [the appellant] will modify his conduct in Mongolia to avoid harm; it considers that [the appellant] does not identify as a homosexual or bisexual man and this is the reason he will not adopt this lifestyle.

75.    Even if the Tribunal were to consider, which it does not, that [the appellant] wished to adopt a bi sexual or homosexual lifestyle if he returned to Mongolia it considers that the country information does not support a conclusion that a person with his profile would face a real risk of suffering significant harm.

76.    The country information indicates that homosexual or bisexual men have in the past faced significant discrimination, social disapproval and occasional violence from members of the community. In 2011 there was some information suggesting that ultra nationalist groups were targeting the LGBT community, however, there has no information suggesting that further attacks have taken place in recent years.

77.    The country information indicates that the situation for the LGBT community has significantly improved in the past few years with recently introduced anti-discrimination laws making hate crimes illegal, greater community support for the LGBT community and a greater public dialogue on issues facing the LGBT community. There are also many community groups which provide support, counselling and advocacy for the LGBT community.

78.    Taking all of the above into account, the Tribunal does not accept that [the appellant] will face a risk that of being arbitrarily deprived of his life; or that the death penalty will be carried out on him; or he will be subjected to torture; to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

79.    The Tribunal notes that some earlier statements provided to the Department in connection with the application refer to [the appellant’s] [medical condition] and the harm he might face if he returned due to possible stigmatisation in the Mongolian community and the inadequacy of medical treatment for [medical condition]. [The appellant] gave evidence at the hearing that he has been successfully treated for [medical condition] in Australia. His statutory declaration of December 2012 indicated that following treatment he was [awaiting] a further blood test to confirm those results. Given that no claims were made in his current application regarding his [medical condition] the Tribunal considers he is free of the disease and would not face a risk of significant harm for this reason if he returned to Mongolia.

80.    [The appellant] also claimed that he is a Shamanist and his parents are Buddhists. He made no claim that he would face harm as a Shamanist if he returned and the country information indicates that Shamanism is widely practiced and accepted in Mongolia. The Tribunal does not consider he would face harm for this reason if he returned to Mongolia.

16    The Tribunal’s ultimate conclusion was expressed at T[81] to [82] as follows:

81.    For reasons set out above the Tribunal is not satisfied [the appellant] meets the criterion in s.36(2)(aa). The Tribunal is not satisfied that [the appellant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

82.    There is no suggestion that [the appellant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the appellant] does not satisfy the criterion in s.36(2).

C.    THE APPLICATION TO THE CIRCUIT COURT

17    In circumstances where the amended notice of appeal, which as noted above was filed by consent after the appellant received pro bono representation, raises only grounds of review that were not raised before the Circuit Court, there is little utility in considering the reasons of that Court.

18    I turn now to the grounds of appeal.

D.     THE FIRST GROUND OF APPEAL

19    The first ground of appeal is:

The court below erred in failing to find that the Tribunal’s decision was vitiated by jurisdictional error by virtue of the Tribunal’s rejection of the Appellant’s claims on the basis that he did not identify as a homosexual or bisexual and would not pursue a bisexual or homosexual lifestyle upon his return to Mongolia.

Particulars

a.    The Tribunal accepted that the Appellant had engaged in heterosexual contact with his former wife and had casual homosexual contact in both Mongolia and Australia (AAT Decision. [48]-[49]). However, the Tribunal concluded that (AAT Decision. [49], [51]-[52], [73]-[74]):

i.    He did not wish to live an “openly” homosexual lifestyle because he did not identify as a homosexual or bisexual man, and he would not pursue “a homosexual or bi-sexual lifestyle” upon his return;

ii.    The Applicant’s (sic) evidence regarding his homosexual contacts did not indicate that he had adopted a homosexual or bisexual orientation or would do so upon his return;

iii.    The Appellant’s evidence regarding his lifestyle in Australia supported the finding that he did not identify as a homosexual or bisexual;

b.    The Tribunal, in so finding, engaged in jurisdictional error by failing to consider a claim before it or component integer thereof, being that the Appellant might face a real risk of significant harm by virtue of being perceived as a homosexual or bisexual (irrespective of his internal identification of his sexual orientation or his “lifestyle’) by virtue of his actual sexual contact with men and/or by virtue of having contracted Hepatitis C;

c.    Further and in the alternative, the Tribunal, in so finding, engaged in jurisdictional error by asking the wrong question, making a finding in the absence of evidence or engaging in legal unreasonableness by drawing a dichotomy between homosexuals or bisexuals who openly lived a “homosexual or bisexual lifestyle” and those that did not and then asking itself whether the Appellant lived or would live such a lifestyle, in the absence of any evidence that supported:

i.    This dichotomy;

ii.    The existence of a type of lifestyle known as a “homosexual or bisexual lifestyle” or the criteria by which participation in such a lifestyle was to be judged;

iii.    The non-attraction of significant harm by those falling in the former category; and

d.    Further and in the alternative, the Tribunal’s findings that the Appellant did not identify as a homosexual or bisexual, and that the Appellant’s evidence supported the finding that he did not identify as a homosexual or bisexual, were findings made in the absence of evidence, illogical or irrational, in view of its findings regarding the Appellant’s homosexual experiences in Mongolia and Australia and the Appellant’s evidence accepted by the Tribunal.

(emphasis in original)

20    The first aspect of the first ground of review is a contention that the Tribunal failed to consider claims made to it. The appellant contends, in essence, that the Tribunal failed to consider whether people in Mongolia might inflict significant harm on the appellant because such people perceived that the appellant was homosexual or bisexual by virtue of his past or future sex with men, or his Hepatitis C, and might harm him for this reason. The appellant submitted that a person may be at risk because they are perceived as bearing certain characteristics, regardless of whether they actually bear those characteristics.

21    The contention that the Tribunal failed to consider the risk to the appellant from others perceiving him to be homosexual or bisexual requires analysis of the Tribunal’s reasons – in the context of the representations made to the Tribunal – in order to determine whether an inference should be drawn that the Tribunal erred in the manner contended.

22    In this regard, it is well-established that the reasons of the Tribunal are to be read fairly as a whole, and not construed minutely and finely with an eye keenly attuned to the perception of error: see, e.g., Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at 604 [38] (Kiefel CJ, Keane, Gordon and Steward JJ); Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at 1382 [16] (Gageler CJ, Edelman and Jagot JJ).

23    In RCLN v Minister for Immigration and Citizenship [2025] FCAFC 113, Perry, Sarah C Derrington and Abraham JJ explained at [27]:

… the Tribunal’s reasons must be read fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]–[60]. Thus, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287)). As such, “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]–[15] (Allsop J (as his Honour then was)).

24    Also relevant are the oft-cited observations of the Full Court of this Court (French J (as his Honour then was), Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, at 604 to 605:

45.    … The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.

46.    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

47.    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

(bold emphasis added)

25    I am not persuaded that the Tribunal failed to consider the risk of harm to the appellant that might have arisen from the perception of others that he is homosexual or bisexual. On a fair reading of the Tribunal’s reasons, the Tribunal did assess such a risk and did so as follows.

26    First, the Tribunal considered the evidence as to the appellant’s sexual orientation (T[28], [34] to [52]) and concluded that he was not homosexual or bisexual. In other words, the Tribunal did not accept the appellant’s evidence on this central issue.

27    The Tribunal expressed this conclusion at T[51], [52], [73] and [74]. Relevant to this conclusion were the Tribunal’s observations that: (1) the appellant’s evidence about relationships was “scant, vague and lacking in specificity” (T[41]); (2) it was troubled by many aspects of the appellant’s evidence (T[48]); and (3) the appellant gave little detail about his claimed bisexual lifestyle in Mongolia (T[49]).

28    Secondly, on the basis of that finding, the Tribunal made a further finding that the appellant was not at risk of harm from his family if he were to return to Mongolia (T[59] to [60]).

29    Thirdly, the Tribunal also considered information concerning Mongolia and treatment of homosexual and bisexual persons there (T[61] to [70]) and concluded that if – contrary to its earlier finding – the appellant was homosexual or bisexual, then, on the basis of that information, the appellant would not face a real risk of suffering significant harm if he were to return to Mongolia (T[75] to [78]).

30    Fourthly, as to the risk of harm to the appellant by virtue of a perception that he was homosexual or bisexual by dint of having contracted Hepatitis C, the Tribunal expressly addressed the appellant’s claims concerning Hepatitis C and found that: (1) the appellant no longer suffered from Hepatis C as at the date of the Tribunal’s decision; and (2) thus, he would not face a risk of significant harm for that reason (T[79]).

31    As the Tribunal found that the appellant was not homosexual or bisexual and that he no longer suffered from Hepatitis C, there was no factual basis for the claim that the appellant was at risk of significant harm by dint of his sexuality.

32    The second component of the first ground is the appellant’s contention that the Tribunal erred by operating on the basis of a dichotomy between homosexual or bisexual persons who openly lived a “homosexual or bisexual lifestyle” and those that did not and asking itself whether the appellant lived or would live such a lifestyle.

33    I do not accept this contention.

34    On no fair reading of the Tribunal’s reasons did the Tribunal find that the appellant was homosexual or bisexual but was not leading a homosexual or bisexual “lifestyle”. Rather, the Tribunal found that the appellant was not homosexual or bisexual.

35    For the same reason, I do not accept the appellant’s submission that the Tribunal was acting upon the basis of stereotyping or unfounded or unstated assumptions as to how homosexual and bisexual persons apparently live.

36    The third component of the first ground is the appellant’s contention that Tribunal’s findings that the appellant did not identify as a homosexual or bisexual, and that the appellant’s evidence supported the finding that he did not identify as a homosexual or bisexual, were findings made in the absence of evidence, illogical or irrational, in view of its findings regarding the appellant’s homosexual experiences in Mongolia and Australia and the appellant’s evidence that was accepted by the Tribunal.

37    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at 27 to 28, Allsop CJ, Besanko and O’Callaghan JJ explained:

33    The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], and [135]; Minister for Home Affairs v DUA16 (2020) 95 ALJR 54; 385 ALR 212 at [26]; SZMDS 240 CLR 611 at [130]-[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at [142].

34    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

(bold emphasis added)

38    In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; (2024) 99 ALJR 387 at 392 [27], Steward J explained:

It is unnecessary to repeat the jurisprudence in this area. The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

(emphasis added)

39    The appellant contends that the Tribunal’s finding that the appellant was not homosexual or bisexual was not open to it in circumstances where the Tribunal had accepted:

(1)    that the appellant had sexual contact with women and had fathered two children (T[49]);

(2)    that the appellant “has had some homosexual contacts in Mongolia and Australia”, referring to the statutory declaration of the appellant’s friend (T[48]), which refers to the appellant attending a sex party in July 2016 with about 9 men (I note that the Tribunal described this as “possibly true”);

(3)    that the appellant “may have occasionally experimented with homosexual sexual contact” (T[49]);

(4)    that the appellant “may have had occasional sexual contacts” (T[52]); and

(5)    “the evidence set out in [the appellant’s] statutory declaration of 19 September 2016 that he has had occasional homosexual contacts in Australia” after 2014 (T[73]) in circumstances where the statutory declaration: (a) stated that “I have had casual sex with a number of partners since my interview … in 2014. I estimate that I have had sex with more than 10 men since this time. With most of these sexual partners, I have had sex one, two or three times”; (b) included an example of a relationship between the appellant and a man, from January 2016, in which they had regular sex for a 6 month period; and (c) refers to the appellant attending an “all-men sex party” in October 2015 in Erskineville with about 8 men”, and of having a relationship with another man.

40    I accept that there may be some tension between the Tribunal’s acceptance of the appellant’s evidence in his statutory declaration of occasional homosexual contact in Mongolia and Australia if that evidence is considered in isolation, and the Tribunal’s conclusion that the appellant is not homosexual or bisexual. However, the Tribunal’s finding was made after consideration of all of the material before it, including its findings as to the appellant’s heterosexual relationships and by reference to the observations of the Tribunal noted at [27] above. That finding is not one that was not logically or rationally available on all of the available material, nor one that no rational or logical decision-maker could reach.

E.    THE SECOND GROUND OF APPEAL

41    The second ground of appeal is:

The court below erred in failing to find that the Tribunal’s decision was vitiated by jurisdictional error by virtue of the Tribunal failing to consider a claim before it or component integer thereof.

Particulars

a.    In making findings about, and drawing inferences concerning, the Appellant’s past, present and likely future sexual activity and “lifestyle” (AAT Decision, [47]-[52], [73]-[74]), the Tribunal failed to consider the claims before it regarding:

i.    The effect that the Appellant’s discovery of having contracted Hepatitis C and him undergoing treatment for the same had upon his past sexual activity and “lifestyle” (including an unwillingness to infect others, impotence, loss of sexual desire and depression); and

ii.    The effect of the Appellant’s successful treatment of Hepatitis C on his likely future sexual activity and “lifestyle”.

42    The appellant contended, in essence, that:

(1)    the appellant made the following claims regarding his Hepatitis C status:

(a)    the fact that he had contracted Hepatitis C would itself be a factor in whether he faced significant harm in the future;

(b)    the fact that he had contracted Hepatitis C, and the side effects of the treatment for Hepatitis C, had a significant limiting effect upon his past sexual activity and “lifestyle” in that the appellant was unwilling to infect others and therefore did not seek out sexual contact. Further, the treatment caused impotence, loss of sexual desire and depression;

(c)    as his health had improved, he would now have the time and opportunity to look for a partner;

(2)    the Tribunal did not address any of these claims;

(3)    instead, the Tribunal expressly stated that as the appellant had not made a claim regarding his Hepatitis C status, he would not face a risk of significant harm for this reason were he to return to Mongolia, which demonstrates that the Tribunal overlooked these claims;

(4)    furthermore, the gravamen of the Tribunal’s reasoning (to use the appellant’s past limited sexual activity as evidence of whether he identified as bisexual and a predictor as to whether he would engage in a bisexual lifestyle in the future, without addressing these claims), would also strongly support an inference that it failed to consider these claims.

43    As is plain, the appellant contends that his claims concerning his Hepatitis C status were relevant in several ways.

44    The first is the relationship between that virus and the risk of harm to the appellant if he were to be returned to Mongolia, such risk manifesting itself in two ways – possible stigmatisation of the appellant within the Mongolian community; and the inadequacy of available medical treatment for the virus in Mongolia. This claim of risk from the presence of the virus formed part of the appellant’s initial application of 20 April 2011. However, as the Tribunal noted at T[79], the appellant gave evidence at the hearing that he had been successfully treated for the virus and a claim based upon a risk of harm from carrying the virus did not form part of the appellant’s application of 31 July 2013, the refusal of which application was under review by the Tribunal. The Tribunal also noted at T[79] that as a result it considered the appellant to be free of Hepatitis C and not liable to a risk of significant harm due to that virus.

45    The Tribunal’s statement at T[79] that “Given that no claims were made in his current application regarding his [medical condition] …” relates only to this first contended basis of relevance of the appellant’s Hepatitis C status, and does not relate to the second basis to which I now turn.

46    The second manner in which the appellant contends that his claims concerning his Hepatitis C status were relevant is the limiting effect of the Hepatitis C virus upon the appellant’s sexual activity during the period that he suffered from that virus. Contrary to the appellant’s contention that this was not considered by the Tribunal, it is plain from T[44] that it was. In that paragraph, the Tribunal stated:

[The appellant] stated that he did not have any sexual contacts when he first arrived in Australia. He did not know what to do when he first arrived then he was taken into detention for a short time and discovered he had [a medical condition]. When he was released he went through a treatment regime which lasted a long time and he became depressed. It was only after he finished his treatment that he started looking to follow his preferred lifestyle about 18 months before the hearing.

47    Similarly, at T[47], the Tribunal stated that it had considered the evidence that the appellant had given regarding his lack of sexual contacts until 2015.

48    Further, and contrary to the appellant’s submissions, the Tribunal also addressed the appellant’s evidence as to his sexual activity following his recovery from the virus (e.g., T[45] to [47]).

49    For the above reasons, this ground of appeal fails.

F.    THE THIRD GROUND OF APPEAL

50    The third ground of appeal is:

The court below erred in failing to find that the Tribunal’s decision was vitiated by jurisdictional error by virtue of the Tribunal failing to take into account a relevant consideration, by making a finding in the absence of evidence, or engaging in legal unreasonableness when making finding regarding the current situation facing LGBT persons in Mongolia.

Particulars

a.    The Tribunal found that:

i.    In the past the LGBT community had faced significant social discrimination and some individuals had suffered significant harm, but the current situation had significantly improved (AAT Decision, [61]-[63] and [76]);

ii.    The country information did not support a conclusion that a person with his profile would face a real risk of suffering significant harm, even if he “wished to adopt a bi sexual or homosexual lifestyle” (AAT Decision, [75]);

iii.    There was 2011 information suggesting that ultra-nationalist groups were targeting the LGBT community, but there was no information suggesting that further attacks had taken place in recent years (AAT Decision, [76]);

b.    However, in making findings regarding the current situation for LGBT persons in Mongolia, the Tribunal referred to a 2014 USAID and UNDP report regarding LGBT discourse and LGBT legal rights in Mongolia, which included the following statements (AAT Decision, [63]):

i.    Mongolian culture is generally not open or welcoming to alternate or non­traditional sexual orientations and gender identity;

ii.    At the personal level, significant violence towards LGBT persons has been recorded, including severe forms perpetrated by ultra-nationalist groups and individuals as well as instances of harassment and stigma;

c.    In making any or all of the findings referred to in paragraph (a) above:

i.    The Tribunal failed to take into account this country information referred to in paragraph (b) above and its apparent acceptance of that information;

ii.    Made a finding in the absence of evidence due to the existence of country information referred to in paragraph (b) above; and/or

iii.    Engaged in legal unreasonableness.

(emphasis in original)

51    The appellant contends as follows.

52    First, that the Tribunal failed to consider relevant and cogent material before it in the form of the following passage from the UNAID and UNDP report titled “Being LGBT in Asia; Mongolia Country Report” published in 2014 and referred to at T[62] and [63]:

Cultural and social environment: Mongolian culture is generally not open or welcoming to alternate or non­traditional sexual orientations and gender identity… At the personal level, significant violence towards LGBT persons has been recorded, including severe forms perpetrated by ultra-nationalist groups and individuals as well as instances of harassment and stigma.

53    The appellant contends that the Court should infer that the Tribunal failed to consider this passage in circumstances where: (1) it was highly relevant to the conclusions that the Tribunal sought to draw; and (2) the Tribunal did not in its reasons reconcile that passage with its conclusions in coming to the view that the report supported its conclusions.

54    I am not persuaded that such an inference should be drawn. The Tribunal considered this information, together with the information in: (1) the May 2016 media report described at T[69]; and (2) the report of the Fulbright scholar referred to in T[70], which report was described in the footnote to T[70] as “Working with the LGBT community in Mongolia March 2016 Psychology International”. These events post-date the UNAID and UNDP report and provide a rational basis for the conclusion reached by the Tribunal that the situation for the LGBT community had “significantly improved in the past few years” (T[77]).

55    Secondly, the appellant contends that the Tribunal made a finding in the absence of evidence when it concluded that: (1) the situation had significantly improved, that (2) the UNAID and UNDP report did not support a conclusion of a risk of harm, and (3) that there was “no information” since 2011 to suggest further attacks.

56    I do not accept this contention. The materials considered by the Tribunal at T[69] to [70] provided an evidentiary basis for the Tribunal’s conclusion that the situation had significantly improved. The reference in T[76] to “2011” is either: (1) a reference to country information not set out by the Tribunal; or (2) a slip on the part of the Tribunal when “2014” was intended, particularly given: (a) the reference to the ultra-national groups in the above quoted passage of the UNAID and UNDP report, which was published in 2014; and (b) the reference in T[77] to the “past few years” which, as the Tribunal’s decision was published in January 2017, sits comfortably with 2014 and uncomfortably with 2011.

57    Thirdly, the appellant contends that Tribunal engaged in legal unreasonableness in reaching its conclusion because: (1) the above quoted passage from the UNAID and UNDP report plainly supports the proposition that, at a personal level, there was significant violence towards LGBT persons including “severe forms” as well as instances of harassment and stigma; and (2) the mere fact that conditions may have improved said nothing about whether LGBT people remain at risk in Mongolia. The appellant contends that the Tribunal’s findings were logically inconsistent and unreasonable conclusions to draw from the country information, which it accepted without qualification as a report which examined the contemporaneous situation.

58    I do not accept this contention. The relevant principles are set out at [37] and [38] above. Again, the materials considered by the Tribunal at T[69] to [70] provided an evidentiary basis for the Tribunal’s conclusion and there was no legal unreasonableness.

59    Thus, this ground fails.

60    If, contrary to the above analysis, the Tribunal did err in the manner suggested, this would not provide a sufficient basis to set aside the primary judge’s decision or the Tribunal’s decision. That is so because the Tribunal’s decision had several bases. The first, and principal, basis was that the appellant was not of homosexual or bisexual orientation and for that reason his claim of risk of significant harm because of such orientation must fail. The second was that, assuming that the appellant was of homosexual or bisexual orientation, then he would not be at a risk of significant harm in Mongolia.

61    For the reasons set out with respect to the first, second and fourth grounds of appeal, the Tribunal did not err with respect to the first of the bases described in the previous paragraph. It followed that the criterion for a protection visa set out in s 36(2) of the Act was not satisfied with the consequence that the requirements of s 65(1)(a) of the Act were not relevantly satisfied. As a consequence, s 65(1)(b) of the Act required the refusal of the visa, regardless of the Tribunal’s findings concerning the risk of significant harm to homosexual or bisexual persons in Mongolia.

G.    THE FOURTH GROUND OF APPEAL

62    The fourth ground of appeal is:

The court below erred in failing to find that the Tribunal’s decision was vitiated by jurisdictional error by virtue of the Tribunal failing to deal with a claim or component integer thereof, or by engaging in legal unreasonableness.

Particulars

a.    The Tribunal did not accept that the Appellant feared significant harm from his family because he had borrowed money from his brother, had regular contact with his family, and appeared to be on good terms (AAT Decision, [59]). The Tribunal, however failed to deal with the claim before it to the effect that the Appellant had hidden his bisexuality or homosexuality from him family (other than his mother) and that the Appellant feared significant harm by virtue of their discovery of the same; and

b.    Further and in the alternative, it was legally unreasonable for the Tribunal to infer from the good relationship between the Appellant and his family that he did not fear harm from them without first determining whether they (other than his mother) knew of his homosexual or bisexual activities.

63    This ground relates to T[59], where the Tribunal found that:

[The appellant] made claims in an earlier written statement that he feared his family disapproval if he returned and was concerned about his father and brother’s reaction to his bi-sexuality. The Tribunal does not accept he identifies as a bi sexual man and does not accept his family will harm him if he returns. The Tribunal notes his evidence that one of his brother’s lent him money to leave Mongolia and that [the appellant] has transferred property to him to repay the debt. [The appellant] also stated he has regular contact with his family suggesting they are on good terms.

64    The appellant submitted, in essence, that:

(1)    the Tribunal rejected the appellant’s claim to fear harm from his family members on the basis that he had regular contact with his family and appeared to be on good terms;

(2)    however, part of the appellant’s claims was that he had hidden his bisexuality or homosexuality from his family (other than his mother), and that he feared significant harm if his father and other family members discovered his sexuality;

(3)    the Tribunal did not expressly address this part of the appellant’s claims;

(4)    as this claim, if accepted, would explain how it could be that the appellant appeared friendly with his family members but feared significant harm from them upon his return, one would expect that, if it had been considered, the Tribunal would have expressly dealt with it; and

(5)    thus, it should be inferred that the Tribunal failed to consider this claim in reaching its conclusions as to harm from family members.

65    The appellant submitted, in the alternative, that:

(1)    it was legally unreasonable or illogical for the Tribunal to infer from the present good relationship between the appellant and his family members that he would not be significantly harmed by them in the future without first determining whether they knew of his homosexual or bisexual activities; and

(2)    without first finding that they had knowledge of this, no rational link could have been drawn by the Tribunal between the status of their present relationship and whether they would harm him in the future.

66    I do not accept the starting premise of the appellant’s submissions, namely that the Tribunal rejected the appellant’s claim to fear harm from his family members solely on the basis that the appellant had regular contact with his family and appeared to be on good terms with them.

67    Read fairly and as a whole, the Tribunal’s reasons demonstrate that the Tribunal:

(1)    acknowledged the appellant’s claim that he had hidden his homosexuality or bisexuality from his family at T[48], where the Tribunal recorded that the appellant claimed to have been bisexual but was “concerned to keep the nature of his sexuality hidden in Mongolia”;

(2)    as noted previously, did not accept the appellant’s claims to be homosexual or bisexual; and

(3)    at T[59], noted the appellant’s claim that he feared the reaction of his father and brother to his bisexuality, but then immediately reiterated that it did not accept that the appellant was bisexual; and stated that it did not accept that his family would harm him upon his return.

68    Thus, the appellant’s claim of apprehension of harm from his family members was considered, but rejected for reasons including the Tribunal’s non-acceptance of his claims as to his sexual orientation. It was unnecessary for the Tribunal to expressly make a finding as to whether the appellant hid his sexual orientation from his family when the factual premise on which that contention rested – namely that the appellant was homosexual or bisexual – had been rejected: see WAEE at 604 to 605 [47].

69    The contention of legal unreasonableness fails for similar reasons. In particular, the Tribunal’s finding that the appellant’s family would not harm him upon his return was founded, at least in part, upon the Tribunal’s rejection of the appellant’s claim as to his sexual orientation and this foundation also provides a rational basis for the Tribunal’s findings.

H.    CONCLUSION

70    For the reasons set out above, the appeal must be dismissed. There appears to be no reason why costs should not follow the event. I will make orders accordingly.

71    The Court is grateful to Mr Reynolds and to Mr McDonald-Norman for acting for the appellant on a pro bono basis.

Associate:

Dated:    31 October 2025