Federal Court of Australia

FLS24 v Minister for Immigration and Citizenship [2026] FCA 994

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs, in an amount to be assessed if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

Introduction

1    This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Div 2) (FCFCOA): FLS24 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1712 (J). The primary judge dismissed an application for review of a decision of the former Administrative Appeals Tribunal, which affirmed a decision not to grant the Appellant a protection visa.

2    In this appeal, the Appellant repeats the argument put to the primary judge that the Tribunal’s decision was based on unwarranted assumptions about how a homosexual man would express his sexuality. That argument should be rejected, essentially for the reasons given by the primary judge. Accordingly, the appeal is dismissed with costs.

background

3    Arrival in Australia (Apr 2018): The Appellant is a citizen of India. He first arrived in Australia in April 2018, on a Temporary Activity (Subclass 408) visa (J [6]-[7]).

4    Application for protection visa (Feb 2024): On 12 February 2024, the Appellant applied for a protection visa, on the basis of his sexuality as a gay man (J [8]).

5    Delegate refuses application (Feb 2024): On 24 February 2024, a delegate refused to grant the Appellant a protection visa. The delegate found that the Appellant’s claims were not genuine or credible (J [13]).

6    Application to AAT (Feb 2024): On 28 February 2024, the Appellant applied to the Tribunal for merits review of the delegate’s decision. The Appellant attended a hearing on 10 May 2024 with the assistance of an interpreter (J [14], [20]).

7    AAT affirms refusal (Jun 2024): On 17 June 2024, the Tribunal affirmed the delegate’s decision. The Tribunal found that the Appellant’s claim that he is gay was not credible (Tribunal reasons (AAT) [28], [30]). The Tribunal stated in AAT [28] that, although it was “mindful of the fact that there is no test to determine a person’s sexuality”, it did not accept that the Appellant is gay, taking three factors into consideration.

8    Concerns about the Appellant’s evidence (AAT [20]-[23]): The first factor was the Tribunal’s concerns about the Appellant’s evidence.

    The Tribunal summarised the Appellant’s evidence at AAT [20]. The Tribunal found that the Appellant’s evidence and overall narrative regarding his sexual orientation and sexual encounters in India and Muscat was “basic, superficial and unconvincing”, and that his evidence on these matters was “simplistic, general and somewhat flippant, particularly when considered in the context of his evidence regarding the cultural and religious disapproval of [homosexual] relationships” (AAT [21]).

    The Tribunal found the Appellant’s evidence about his wife’s knowledge of his alleged homosexuality implausible. Given the Appellant’s evidence about the level of knowledge in his village about his alleged homosexuality and how long this had been known, the Tribunal found it unbelievable that the Appellant’s wife would not have known that the Appellant is gay at an earlier time or, if she did, that she would have waited until the Appellant had left the country to come to Australia to confront him about it (AAT [22]). The Tribunal found that messages from the Appellant’s wife during and after the hearing did not support the Appellant’s claims, or alleviate the Tribunal’s concerns about the credibility of the Appellant’s claims to be gay (AAT [23]).

9    Delay in seeking protection, and not responding to the Department (AAT [26]-[27]): The second factor was the Appellant’s delay in seeking protection in Australia, and his not responding to the Department’s invitation to provide further information to substantiate his claims.

    The Tribunal took into consideration that the Appellant did not apply for a protection visa until April 2022, some four years after he arrived in Australia. When that application was invalid, the Appellant lodged the current application in February 2024, almost two years later, on the day he was due to be deported. The Tribunal did not accept that, if the Appellant had a subjective fear of persecution if he returned to India because of his alleged sexuality, he would have waited over four years to first apply for protection and then almost another two years after that to apply again as he was due to be deported (AAT [27]).

    The Tribunal also had regard to the fact that the Department gave the Appellant an opportunity to provide additional information (because the claims in his protection visa application were lacking substantiating details), and that the Appellant had not provided any substantive response. The Tribunal did not accept the Appellant’s explanations for why he had not replied to the Department’s questions, and found that if he had a genuine fear of persecution he would have answered to the best of his ability the questions that he could understand, or sought some assistance in answering these questions. This fact confirmed the Tribunal’s doubts about the credibility of the Appellant’s claims (AAT [26]).

10    Lack of expression of his homosexuality in Australia (AAT [24]-[25]): The third factor was the “lack of expression of [the Appellant’s] alleged homosexuality over the considerable number of years he has lived in Australia” (see AAT [28]). The Appellant’s arguments focus particularly on this aspect of the Tribunal’s reasons.

11    In AAT [24], the Tribunal stated that it had taken into consideration the Appellant’s evidence in the hearing that he has not been open about his homosexuality in Australia. The Appellant claimed that, once he came to Australia, he realised that the law here was more liberal and friendly towards the gay community, so he wanted to spend his life here. Yet the Appellant’s evidence demonstrated a reticence in living openly as a homosexual over the substantial number of years that he had lived in Australia.

(a)    The Appellant’s evidence at the hearing was that he has no gay friends. He appeared to have met only one Bangladeshi man once while on a train several years ago who he chatted with, but the Appellant’s evidence did not suggest that this Bangladeshi man was homosexual or that their interaction was anything but a casual conversation.

(b)    The Appellant confirmed that he had no presence on social media or on dating applications.

(c)    When asked if he had participated in or engaged with the LGBTQ community in Australia in any way, the Appellant claimed that he had contacted the LGBTQ community seeking some help with his protection visa application but was told they were unable to assist him. Later, when the Tribunal raised its concern that the way he has conducted his life in Australia was not consistent with someone trying to live life as a gay person freely, the Appellant claimed to have googled “LGBTQI community Melbourne” in 2022, and to have spoken to someone from an organisation based in St Kilda about meeting people from the same community. The Appellant could not recall the name of the organisation or the person he spoke with, but claimed he was sent a registration form which he filled out and returned but that he did not receive any reply.

12    In AAT [25], the Tribunal stated that it noted at the hearing that the Appellant had spoken about Australia being more liberal, and asked the Appellant what activities he had engaged in in terms of enjoying the freedoms he has here as a gay man. The Appellant responded that initially he came to Australia to play Kabbadi and then he was working part-time so he had no time “for all these things”. The Appellant spoke about feeling more relaxed in Australia once he came to know that everyone is treated equally here and he was never bullied. Yet his evidence was that he had never had a sexual encounter with a man over the last six years he has been in Australia or had a relationship with a man. When asked why not, the Appellant stated because of the language barrier and because where he works, the people are mostly from the Punjabi community, so he spends most of his time working.

(a)    The Tribunal noted the Appellant’s evidence in his protection visa application suggested that he had no difficulty making gay friends in Muscat, where he worked with people from India and had drinks after work with other Punjabis, as he claimed in the hearing. In those circumstances, the Tribunal did not accept the Appellant’s employment was a reasonable explanation for why he had not met any gay men or had any sexual relationships of any kind during the many years he had lived in Australia.

(b)    While the Tribunal appreciated that the Appellant may find it more difficult to communicate with some people because of his English skills, the Tribunal found the way the Appellant has conducted his life in Australia (which was essentially to conceal his alleged sexual orientation) was “not consistent with his stated intention of wanting to live in Australia as [a] gay man or even his alleged actions in India and Muscat”, such as the casual relationship the Appellant said he had with a man who ironed clothes near the bus stop in a village 2-3 km from his home, and the Appellant finding sexual partners through gossiping during Friday night drinks.

(c)    The Appellant said at the hearing that he was initially living with his cousin. The Tribunal did not accept the Applicant’s living arrangements in Australia were a reasonable explanation for suppressing his sexual orientation, given that the Appellant’s evidence in the hearing was that people in his village came to know about his alleged homosexuality in 2004 or 2005; his uncle confronted him about his sexuality around 2005 or 2006; and even his wife allegedly demonstrated awareness of this in September 2018. In these circumstances, the Tribunal found it questionable that the Appellant would have to maintain a façade with respect to his sexual identity amongst his relatives.

13    The Tribunal was “concerned that the [Appellant] has not sought to explore or express his alleged homosexuality in any way during his many years in Australia”. Based on this, and the Tribunal’s earlier findings, the Tribunal found that the Appellant’s “concealment of his alleged sexuality whilst in Australia is because he is not homosexual” (AAT [25]).

14    Notification of decision: The cover letter to the Tribunal’s decision states that the notification was sent “by hand” to the Appellant (J [24]). On 15 July 2024, the Appellant asked for a copy of the Tribunal’s decision and stated that he had not been sent the decision record. On 16 July 2024, the Tribunal sent the Appellant a courtesy copy of the decision and the notification letter (J [24]-[26]).

15    Application to FCFCOA (Jul 2024, Sep 2025): On 30 July 2024, the Appellant applied to the FCFCOA for judicial review of the Tribunal’s decision, outside the 35-day time limit (J [35]).

16    On 12 September 2025, the Appellant filed an amended originating application (J [38]). The single ground of review was that the Tribunal’s decision was legally unreasonable, because it rejected his claim that he was a homosexual on the basis that the Appellant did not express or act upon that sexuality in accordance with stereotypical behaviour (J [46]).

17    Primary judge dismisses application (Oct 2025): On 30 October 2025, the primary judge granted an extension of time, but dismissed the application. Relevantly to this appeal, his Honour reached the following conclusions:

    The primary judge observed that, on the Appellant’s case, there could be no objective circumstance by which the Appellant’s claim to be homosexual could be tested. The reason was (according to the Appellant) there are infinite ways in which a homosexual person may live, including without expressing their sexuality. The primary judge found that the Tribunal tested the Appellant’s claims relating to his time in Australia in one of the few ways that was conceivably open to it, namely against his own evidence (J [137]).

    The primary judge held that the Tribunal in AAT [24] was not suggesting that any of the identified ways was a necessary prerequisite to a finding that the Appellant was homosexual. Rather, the Tribunal’s point was that the Appellant’s lack of expression of that homosexuality while in Australia was at odds with his stated reason for wanting to spend his life in Australia (namely to enjoy the freedom that Australia offered). That matter was logically probative of the conclusion drawn by the Tribunal, even though there might be other reasons that were also consistent with that behaviour (J [158]).

    Similarly, the primary judge held that the conclusion drawn by the Tribunal in AAT [25] was based upon the Appellant’s own evidence as to his reason for wanting to live in Australia (J [168]). The Tribunal did not assume that the Appellant was required to have sexual encounters with men in order to be genuinely homosexual. Instead, the Tribunal sought to contrast the Appellant’s stated reasons for living in Australia with his conduct in Australia, and with the manner that the Appellant claimed to have expressed his sexuality in Muscat. The fact that the Appellant’s conduct did not match his stated reasons, and was inconsistent with his claimed conduct in Muscat, was logically probative of the inference drawn by the Tribunal, or at least the Tribunal’s inference was open to it (J [170]).

18    Notice of appeal (Nov 2025): On 26 November 2025, the Appellant filed a notice of appeal, which contains two grounds:

1.    The learned primary judge erred in finding that—

a.    The Tribunal’s finding that the appellant’s mode of expressing his sexuality in Australia was at odds with his stated reason for wanting to live in Australia was logically probative of the conclusion drawn by the Tribunal at [158];

b.    The Tribunal’s conclusion about the appellant’s sexuality was based on the appellant’s own evidence as to his reason for wanting to live in Australia at [168]; and

c.    The Tribunal’s finding that the fact that the appellant’s conduct did not match his stated reasons for wanting to live in Australia was logically probative of an inference drawn by the Tribunal or at least an inference that was open to it at [170];

in that the learned primary judge’s acceptance of the logic of the Tribunal’s finding that the appellant was not living openly and was not expressing his sexuality was itself subtended by generalised and unwarranted assumptions about how living openly and expressing as a homosexual materialises. Instead, the learned primary judge should have found that the Tribunal’s reasoning was infected by generalised and unwarranted assumptions about what it means to live openly and to express as a homosexual person, such that the Tribunal’s decision was legally unreasonable and affected by jurisdictional error.

2.    The learned primary judge erred in failing to consider and address a material argument advanced by the appellant, being that the Tribunal acted unreasonably in assuming that the appellant should have been willing to have sexual encounters in his cousin’s house on the basis that his broader family knew about his homosexuality. Instead, the learned primary judge should have found this proposition to be an unwarranted and generalised assumption not based in the evidence, and that it rendered the decision of the Tribunal legally unreasonable and affected by jurisdictional error.

consideration

19    The ultimate issue on appeal is whether the primary judge was correct to find that the Tribunal’s decision did not contain any jurisdictional error. That issue is clearly raised by the first ground of appeal. In its terms, the second ground of appeal challenges the correctness of the primary judge’s reasons; however, the Court would not grant relief as a matter of utility unless the Tribunal’s decision contained jurisdictional error: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 at [63] (Rangiah J, with Reeves and Bromwich JJ agreeing); see further [34] below.

Ground 1:    Whether Tribunal’s reasons are based on unwarranted assumptions

20    Ground 1 contends, in effect, that the Tribunal’s finding that the Appellant was not living openly and was not expressing his sexuality was itself subtended by (based on) generalised and unwarranted assumptions about how living openly and expressing as a homosexual materialises. This argument focuses on the third factor in the Tribunal’s reasoning in AAT [24]-[25], summarised in [10]-[13] above.

21    The Minister observes as a contextual matter that the Tribunal referred to other factors in rejecting the Appellant’s claims (including the delay in applying for a protection visa, and the failure to provide a substantive response to a request for further information). However, the Minister correctly accepts that any error in considering the third factor would be material: the Tribunal’s reasons do not suggest that the other factors would independently support the result reached by the Tribunal, even if the Appellant’s failure to express his sexuality in Australia were to be disregarded. Accordingly, if one of three factors for rejecting the Appellant’s claims is found to be without a rational or probative basis, that factor will be sufficiently important to the Tribunal’s reasoning as a whole as to require the decision to be set aside: see AJY17 v Minister for Immigration and Border Protection [2020] FCA 327 at [56]-[57] (Charlesworth J); Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [81]-[82] (Griffiths and Moshinsky JJ, with Logan J agreeing).

22    Unwarranted assumptions – general principles: In BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573, Perram J summarised the principles relating to judicial review and unwarranted assumptions as follows:

    There is no freestanding ground of unwarranted assumption. However, the making of an unwarranted assumption can be reviewed on rationality grounds (his Honour’s preferred approach), or on the basis that the decision-maker has failed duly to consider the question raised by the materials: BOH17 at [7].

    On the rationality approach, the question is whether the assumption is not one that a reasonable decision-maker could make; or, put another way, whether the credit findings lacked an evident and intelligible basis: BOH17 at [8].

This summary has been adopted in JNMK v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 829 at [50]-[51] (Jackson J), and EFS18 v Minister for Immigration and Citizenship [2026] FCA 461 at [11] (Perram J).

23    These specific principles about unwarranted assumptions need to be understood together with three other general principles.

    First, illogicality and irrationality (and legal unreasonableness) are demanding standards of review. The Court exercises a “high degree of caution” before deciding that an adverse credit finding by an administrative decision-maker is illogical or irrational (or legally unreasonable), to ensure that the Court is not entering on the merits of the decision: see BFH16 v Minister for Immigration and Border Protection [2020] FCAFC 54; (2020) 274 FCR 532 at [39] (Murphy and O’Bryan JJ), quoting DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30](5) (the Court). That is, an administrative decision is not illogical or irrational (or legally unreasonable) simply because the Court disagrees, even strongly, with the merits of the decision: see BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [51](c) (the Court).

    Second, a decision-maker under the Act is not required to accept an applicant’s claims for protection uncritically: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 (Beaumont J); Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [134] (Kenny J); Minister for Immigration and Citizenship v MZXPA [2008] FCA 185; (2008) 100 ALD 312 at [14] (Sundberg J). The primary judge made this point at J [137]. Relevantly to this appeal, one accepted basis for making an adverse credibility finding is that a claim is implausible: see BQQ15 at [52].

    Third, a claim is “implausible” if the event does not accord with the probabilities of ordinary human experience: BQQ15 at [56]; Republic of Nauru v WET040 (No 2) [2018] HCA 60; (2018) 93 ALJR 102 at [35] (the Court). Conversely, a fact is rationally probative of another fact if the first fact, according to the ordinary course of events and either taken by itself or in combination with other facts, renders more probable the past, present, or future existence or non-existence of the other fact. The “ordinary course of events” is an objective test grounded in human experience: BFH16 at [41].

24    The effect of these general principles is that the Tribunal here was entitled to test the Appellant’s claims, and to ask whether his claims accorded with the probabilities of ordinary human experience. An assumption will be unwarranted if the assumption is not a matter of ordinary human experience: BFH16 at [48]. But there may be some assumptions that can legitimately be drawn, because they have a foundation in common human experience: see the discussion of BFH16 in [30] below. So it is not necessarily unreasonable to draw conclusions about a person’s sexuality from expected behaviours: it will depend on the particular assumption made, and the evidence before the Tribunal. Further, the Court will exercise caution before deciding that an adverse credit finding was illogical or irrational (or legally unreasonable). A finding is not illogical or irrational (or legally unreasonable) simply because another credit finding was possible on the evidence: see ABA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 544 at [69] (Yates J).

25    Examples of unwarranted assumptions: The following three cases are examples of when an administrative decision has been found to contain an unwarranted assumption or assumptions.

26    DAO16 (Full Court, 2018): The first case is DAO16. The appellant in that case claimed that, by reason of his homosexuality, he would be at risk of harm in India if he were required to return. The Tribunal did not accept that the appellant was homosexual, and therefore rejected his claims. The Full Court found that the Tribunal’s decision was illogical or irrational, for two reasons.

    First, there was no logical or rational basis for the Tribunal’s rejection of the evidence of four of the appellant’s witnesses. The Tribunal’s findings that the appellant’s relationship with a different witness, Mr R, was fabricated was not a basis for rejecting the evidence of these four “independent” witnesses. There was no evidence of any connection between these witnesses and Mr R, or between these witnesses and any other applicants for protection visas: DAO16 at [40].

    Second, and relevantly to this case, the Full Court found that many of the Tribunal’s findings were underpinned by unexpressed and unwarranted assumptions not based in any evidence. For example, the Tribunal appears to have assumed that, if the appellant were truly homosexual, he would have engaged in sexual relationships with a larger number of men: DAO16 at [45].

27    Abboud (Jagot J, 2018): The second case is Abboud v Minister for Immigration and Border Protection [2018] FCA 185; (2018) 74 AAR 214. The appellant in that case, a female, had applied for a partner visa, in circumstances where her sponsor husband had previously been granted a protection visa on the basis of his homosexuality. The husband stated in correspondence that he wanted to keep his homosexual desires in the past, and that since meeting his wife he had “reformed”. The Tribunal found that the appellant and her husband were not and had never been in a “genuine, continuing and exclusive spousal relationship” as required for the visa. Jagot J held that the Tribunal’s reasoning involved assumptions, pre-conceptions or pre-judgments about homosexual men in general which prevented it from engaging with the particular claims of the appellant and her husband: Abboud at [15].

    The key assumption made by the Tribunal was that a person’s (or at least a man’s) sexuality is fixed at and immutable from birth, which was treated as a universal truth applicable to all men: Abboud at [18], [21]. This assumption caused the Tribunal to re-cast the husband’s claims to fit within the Tribunal’s pre-conceptions about human sexuality: Abboud at [22].

    This assumption was manifest in other parts of the Tribunal’s decision which treated sexual identity and attraction as consisting of three mutually exclusive categories fixed at and immutable from birth, being homosexual, heterosexual, and “genuinely bisexual”. On the Tribunal’s reasoning, the only authentic or “genuine” relationship is one in which a person’s choice of partner matches the person’s assigned sexual identity from birth, and any variation from this is necessarily inauthentic and not “genuine”: Abboud at [24]. Jagot J held (in Abboud at [28]) that the entire reasoning process of the Tribunal:

involved the working out of the inevitable consequences of the Tribunal’s essential premise about male sexuality, unconnected to the particular circumstances of the sponsor and the appellant, and irrespective of the material they had placed before the Tribunal.

28    BFH16 (Full Court, 2020): The third case is BFH16. The appellants in that case were citizens of Pakistan, and each applied for a protection visa on the basis that they were homosexual (and in a relationship with each other). The Tribunal found that they were not homosexual. It reached that conclusion based on three matters relating to the appellants’ behaviour: the appellants’ response to their claimed first sexual encounter (and inconsistencies in their evidence about this 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 gay night club and sauna known to be popular with gay men and women: BFH16 at [38]. Murphy and O’Bryan JJ (with Snaden J dissenting) held that the Tribunal’s reasoning on the first of these matters was illogical and irrational, but its reasoning on the other two matters was not.

29    On the appellants’ first sexual encounter, the Tribunal relied in particular on the appellants’ evidence of whether they discussed the implications for them of this encounter or went about their normal routine, and when they next had sexual intercourse. The Tribunal considered that the appellants had given different accounts of the aftermath of their claimed first sexual experience: see BFH16 at [42]-[43].

    Murphy and O’Bryan JJ held that the Tribunal’s reasons depended on assumptions about the expected psychological response of the appellants to their first sexual encounter; namely, that the appellants would not go about their normal routine afterwards but would immediately discuss the implications; and that the appellants would remember doing so, and would also remember with precision when they next had sex: BFH16 at [47].

    The expressed bases for the Tribunal’s assumptions were that the appellants claimed to have had homosexual feelings since high school; both claimed not to have had sexual intercourse previously; both claimed they did not know the other was homosexual before this encounter; and both claimed to come from conservative families and a conservative social milieu. Murphy and O’Bryan JJ held that these matters were not rationally probative of the Tribunal’s assumptions. It could not be said that the psychological reactions of a couple to their first sexual encounter were matters of common human experience; if anything, the psychological reactions of a couple were likely to “vary widely, depending on the wide range of human emotional attributes”: BFH16 at [48].

30    However, the Tribunal’s reasoning on the other two matters was not illogical or irrational.

    On the appellants’ travel, Murphy and O’Bryan JJ held that the appellants were in Australia together for the greater part of 2011 and 2012, and that their explanation for their travel was hardly remarkable. Nonetheless, while the probative value of the evidence of the appellants’ travel between February 2011 and March 2013 was slight, the Tribunal’s reasoning was not irrational. The Tribunal’s assumption that two people in a committed relationship would seek to avoid periods of separation, if possible, had some foundation in common human experience. Accordingly, the periods that the appellants were apart made it more likely (albeit very slightly) that the appellants were not in a committed homosexual relationship, as they claimed: BFH16 at [54]-[55].

    On the appellants’ attendance at a well-known gay club and sauna, the Tribunal found that the appellants attending an identifiably gay male environment was 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. Their Honours held that this reasoning was not illogical or irrational: BFH16 at [58]-[59].

31    Did the Tribunal make unwarranted assumptions in this case? The Appellant’s arguments can be considered in the light of these principles. Before the primary judge, the Appellant contended that the Tribunal in AAT [21]-[25] treated certain matters as “indicators” of homosexuality, or a yardstick against which the Appellant’s claims fell short. The primary judge held, however, that it was open to the Tribunal to find that the Appellant’s articulated reasons for wanting to live in Australia were at odds with his “lack of expression” of sexuality (J [158]). The Appellant contends that the primary judge’s reasoning wrongly assumes that a homosexual person will express their sexuality in a particular way, and arbitrarily confines what constitutes expression of sexual identity to certain established modes of doing so. The Appellant contends that, for one person, living openly as a gay person might mean joining LGBTQ+ communities and engaging with persons of the same sex on dating applications, but that for another person, living openly as a gay person might simply be being comfortable with other people knowing about the person’s sexuality. The Appellant refers here to the difference between a freedom to engage in an activity, and a freedom to be free from bullying.

32    I do not accept these arguments. At its highest, the Tribunal’s reasoning in AAT [24] is not that a homosexual man will express their sexual identity through certain established modes, but that a homosexual man in a liberal country like Australia could be expected to find some way of expressing his sexuality, whereas the Appellant’s evidence was that he had not expressed his sexuality in Australia in any form. That assumption, if made, is nothing like the highly prescriptive assumptions made in DAO16, Abboud, or BHF16, which led to jurisdictional error.

33    In any event, although J [158] deals with AAT [24] in particular, the Tribunal’s reasoning in that paragraph must be read together with its reasoning in AAT [25]. The Tribunal in AAT [25] states that the way the Appellant had lived his life in Australia was not consistent with his stated intention of wanting to live in Australia as a gay man “or even his alleged actions in India and Muscat”. The Tribunal then refers to the Appellant’s evidence that he had pursued sexual relationships with other men when living in India and Muscat (as summarised in AAT [20]). Given that evidence, it is not an unwarranted assumption by the Tribunal to expect that the Appellant would choose to pursue sexual relationships in Australia, given the Appellant recognised that Australia is more liberal towards homosexuality. Rather, the Tribunal’s reasoning is based on an inconsistency between the Appellant’s behaviour in Australia, and his past claimed behaviour. That is the conclusion drawn by the primary judge in J [170].

34    The Appellant submits, however, that even this reasoning in AAT [25] contains an assumption: that evidence of a person’s sexual activities in the past (sometimes as long as 20 years ago) is probative of how the person will express his sexuality many years later. It is said that a person’s sexuality can change over time, relying on Abboud. I do not accept this argument. In the circumstances of this case, it was not illogical or irrational for the Tribunal to treat the Appellant’s claims of his sexual activity in India and Muscat as probative of how he might be expected to express his sexuality in Australia at the time of the Tribunal’s decision.

35    First, Abboud does not suggest that it is illogical or irrational to assume that a person’s past sexual activities are a guide to their current sexual preferences, at least when there is no explanation given for any difference. The vice in Abboud was that the sponsor gave a coherent explanation for his change to living in a committed heterosexual relationship, but the assumptions made by Tribunal meant that it did not engage with those particular claims at all.

    Here, when the Tribunal put to the Appellant directly its concerns that the way he lived his life in Australia was not consistent with someone trying to live life as a gay person freely, the Appellant claimed to have googled “LGBTQI Melbourne community” in 2022, without any success (AAT [24]). The Appellant did not respond that he no longer sought to express his sexuality in the way he had done in the past.

    The Appellant contended that this answer should be understood as being informed by (and limited by) the Tribunal’s earlier question about whether the Appellant had engaged with the LGBTQI community (also set out in AAT [24]). However, in the absence of a transcript of the AAT hearing, I am not prepared to draw that inference: the Tribunal’s reasons suggest that the two questions were put at different parts of the hearing, and the questions are differently enough expressed that I would not assume that the answer to the second question is informed by the framing of the first question.

36    Second, and in any event, although it is true that the Appellant’s claimed sexual encounters in India were in the mid-2000s (some 20 years before the Tribunal’s decision), the Appellant also claimed that he engaged in sexual activity in Muscat, Oman (see AAT [20]). The Appellant was living in Oman from 2007 to 2018 (AAT [13]); that is, immediately before coming to Australia. Accordingly, the claimed activities were not so long ago as to lose any possible probative force.

37    For these reasons, Ground 1 is rejected.

Ground 2:    Whether primary judge failed to deal with the challenge to the Tribunal’s finding about the Appellant’s living arrangements

38    Ground 2 contends that the primary judge failed to deal with a material argument of the Appellant; namely, that the Tribunal’s finding in AAT [25] that the Appellant’s living arrangements did not explain why the Appellant did not pursue sexual relationships in Australia was itself legally unreasonable. The Appellant contends that his argument that this aspect of the Tribunal’s reasons was legally unreasonable was substantial and the issue was significant, and therefore (it is said) it was necessary for the primary judge to “refer to and assign reasons for the rejection of the argument or the resolution of the issue”, citing Hunter v Transport Accident Commission [2005] VSCA 1 at [21].

39    Court can decide for itself whether there was jurisdictional error: It is true that the primary judge’s reasons do not deal with this particular aspect of AAT [25]. The Appellant clarified at the hearing that this argument was put in oral argument before the primary judge, which was accepted by the Minister. However, this Court would not remit the matter, if it were satisfied that the same result would necessarily be reached: see ALC15 v Minister for Immigration and Border Protection [2016] FCA 730 at [93] (Markovic J), referring to Carlisle Homes Pty Ltd v Barrett Property Group Ltd [2009] FCAFC 31 at [46] (the Court). This Court is as well placed as the primary judge to rule on the argument: see Hunter at [37]. Accordingly, any failure by the primary judge to deal with this argument does not prevent this Court from deciding for itself whether this aspect of the Tribunal’s decision contains jurisdictional error.

40    No unwarranted assumption: The Appellant contends that the Tribunal’s reasons on this matter take a binary and rigid approach to sexual expression. It is said that the Tribunal’s reasoning proceeds on the unsubstantiated premise that the Appellant would be comfortable expressing his sexuality in the vicinity of those who knew about it, and does not admit of the possibility that other personal or cultural factors could explain the relevant disinclination.

41    The Tribunal’s reasoning does not assume that the Appellant would be comfortable expressing his sexuality “in the vicinity” of his cousin, but rather finds that living with his cousin (which the Appellant only did “initially” on coming to Australia) did not explain why the Appellant had not taken any steps to explore or express his alleged sexuality during his many years in Australia, as he had previously. This is not a case like BFH16, where a person is concerned that his family not become aware that he is homosexual, and therefore will strive to avoid any risk of revealing his sexual identity. Here, the Appellant’s family (on the Appellant’s account) was well aware of his sexuality, which provided a basis for the Tribunal’s conclusion that there was no need for the Appellant to maintain a façade with his cousin. That reasoning therefore does not rest on any unwarranted assumption. The fact that the evidence could have been interpreted in another way does not mean that the Tribunal’s conclusion was illogical or irrational: see [24] above.

42    The Appellant contends, however, that even this reasoning rests on the assumption that a homosexual man would express his sexuality in Australia in some way. That argument raises the same matters as Ground 1, and should be rejected for the same reasons.

43    Accordingly, Ground 2 is also rejected.

conclusion

44    For the reasons set out above, the appeal is dismissed with costs.

Associate:

Dated:    30 July 2026