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The full bench of the Federal Court has found that the Administrative Appeals Tribunal’s (AAT) decision of rejecting the appeal of an Indian Sikh man who claimed fear of significant harm on account of him being homosexual, showed “extreme illogicality” and lacked “an intelligible foundation."
The Indian national who arrived in Australia on a student visa in 2007, applied for a protection visa in August 2011 on the grounds that he was homosexual and would face persecution in India due to his sexuality.
The asylum seeker argued he shouldn’t be forced to return to India from where his conservative Sikh father had sent him to Australia to make him “normal” after discovering his homosexual relationship with a neighbour.
But his application for a protection visa was refused by the Department of Immigration and Border Protection in 2015 for the second time. The Indian national filed an appeal in the Administrative Appeals Tribunal where, to support his claim, he tendered evidence from 16 witnesses, including men he had had sex with.
He also submitted an email confirmation of his subscription to a gay men’s magazine, printouts of his profile on a gay website and text messages he exchanged with the men he dated from June 2011.
However, the AAT declined his appeal on the basis that it did not believe he was homosexual and found that the evidence by a man with whom the appellant had a three-year relationship was “fabricated” and “contrived”.
The Court found the tribunal based its original decision on “unwarranted assumptions,” such as that if the asylum seeker “had truly been homosexual, he would have engaged in sexual relationships with a larger number of men."
The tribunal ruled that he had contrived evidence to establish that he is gay.
“The evidence he has provided to support his claimed homosexuality is indicative of the fact that it has been fabricated following his inability to obtain permanent residence by other means and that he sought to rely on his fabricated relationship with [a witness] to establish his homosexuality,” the tribunal said.
The Tribunal ruled that it did not accept that the applicant would pursue homosexual lifestyle upon his return to India and that he was prepared to do anything for an Australian visa.
“It establishes only that the applicant is prepared to do whatever he considers necessary to assist him to obtain a permanent visa to remain in Australia,” the Tribunal said while declining his appeal.
The Indian asylum seeker then appealed the decision of the AAT in the Federal Court which upheld the AAT’s decision.
But last week, the full bench of the Federal court, allowing the appeal by the applicant, ruled that the AAT’s decision demonstrated “extreme illogicality” and lacked “an intelligible foundation”.
The Court found the AAT based its decision on “unwarranted assumptions” such as that if the asylum seeker “had truly been homosexual, he would have engaged in sexual relationships with a larger number of men."
The asylum seeker’s lawyer Nilesh Nandan said the case highlighted the difficulties faced by homosexuals in giving evidence in legal proceedings.
“Sexuality and sexual identity are, by their very nature, deeply personal and subjective, and can be matters in respect of which it is difficult to gather evidence, because, for example, sexual partners are unwilling to provide statements and be cross-examined about their intimate relationships and activities,” Mr Nandan told the Guardian.
“The full court’s decision demonstrates a sensitivity to these issues and underscores … the appellate system provides effective safeguards for vulnerable protection visa applicants against unreasonable decisions.”
The court ordered the matter to be remitted to the Tribunal, differently constituted, to be determined according to law.
The court also ordered the DIBP to pay the legal cost of the applicant.
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