A tribunal accepted sexually explicit photos from a man seeking refugee protection from persecution over his homosexuality, then rejected them as “staged” and ruled he had “fabricated” his claim of being gay.
The Administrative Appeals Tribunal (AAT) also ruled that the man had been “evasive” in struggling to explain why he and his partner had not formally registered their relationship in Australia.
In late August the Australian Federal Court called out the “troubling” reasoning of the AAT, in a judgement granting the Nepalese man permission to appeal.
It was only after AAT member Christine Cody suggested at a hearing that she didn't believe his claims about his sexuality that the man volunteered in a statutory declaration to hand over photos showing him and his partner having sex.
The tribunal then invited the man to a second hearing, and to provide any further evidence he wanted to rely on. “It in effect accepted the offer to furnish sexually explicit photographs,” Justice Angus Stewart said in the judgement.
The man didn’t provide the photos ahead of the second hearing, later saying he was uncomfortable — an explanation Cody found unpersuasive because he had volunteered the photos himself.
“The tribunal appears to have held it against the [man] that he failed to provide explicit photographs of him and his partner engaging in homosexual sex to prove that he is homosexual,” Stewart wrote.
After the tribunal repeated the concerns about his claims about his sexuality at the second hearing, the man offered pictures again. He later submitted the photos. One showed him naked and entwined with another man’s limbs. Another showed a penis held by a hand. Cody said a third photo was “suggestive of” intercourse “perhaps between two males but this is unclear”. He also tendered a photo of him kissing the man he said was his partner.
But Cody rejected the evidence and nixed his refugee application, finding the man was not a credible witness and that he had “fabricated” his sexuality.
"Having regard to the Tribunal’s credibility concerns, it is not prepared to accept that these photos are genuine, non-staged photos of the applicant and his claimed partner engaged in sexual activity," she wrote in the 2016 decision.
"It’s the catch 22 for gay applicants," Ghassan Kassisieh, legal director of LGBTIQ+ rights organisation Equality Australia, told BuzzFeed News. "They may be asked to give highly detailed accounts of their sex lives, or explain their lack of one. But if explicit photos are produced, they may then be rejected as being staged.
"Decision-makers who focus on sex, including whether and how it’s done, can miss the opportunity to really hear the applicant’s whole story. Applicants may be embarrassed to recount details of their sexual history to a stranger, often resulting in them being perceived as evasive and not forthcoming," Kassisieh said.
The tribunal also rejected the evidence of the man’s partner and four other witnesses about his sexuality. It said it was “not prepared to accept” much of that evidence, apparently because it was inconsistent with the decision to reject the Nepalese man’s evidence, the judge found.
Justice Stewart also found that the tribunal appeared to hold it against the man that he was not able to satisfactorily explain why he and his partner didn’t intend to get married in Australia. The tribunal decision was prior to the legalisation of same-sex marriage in December 2017.
The man gave a number of reasons for not having registered his relationship, including being confused by the term marriage and initially thinking that he couldn't register because he and his partner were not in Australia legally and did not have a house.
He said that he intended to register the relationship, and then later said because the relationship was genuine he didn't feel he needed to. Cody found these statements were inconsistent.
The man, whose identity is suppressed, said he and his partner fled Nepal after experiencing discrimination over their sexuality. He said his family had physically and emotionally abused him and that he feared significant harm if he returned to Nepal, including being forced to marry a woman.
He also said he had suffered political persecution from Maoists because he was a Royalist.
Because she did not find him credible, Cody did not accept that he was gay, had been in a gay relationship, or that he was distressed because he had been suspected of being gay in Nepal.
She concluded that any activities in Australia “which may be suggestive of him being homosexual or in a homosexual relationship” — such as living with and sharing a bank account with his claimed partner — were instead done to strengthen his claims.
A tribunal spokesperson told BuzzFeed News its members were independent decision-makers.
"The AAT provides induction on appointment and ongoing professional development to assist members as they develop skills in assessing the credibility of claims," the spokesperson said.
The tribunal's gender guidelines recommend members focus questions on an applicant’s realisation and experience of sexual orientation or gender identity – such as feelings of stigma and fear of harm – rather than questions that focus on sexual acts.
Its Guidelines on Assessment of Credibility state that claims relating to sexual orientation require particularly sensitive investigation, and that the tribunal should be mindful that an applicant may find it very difficult or embarrassing to discuss claims relating to his or her sexual orientation.
"The AAT is an important part of the government’s administrative decision-making process, values public scrutiny and is also subject to the supervision of the Federal Court," the spokesperson said.
Before he approached the tribunal, the government turned down the man's protection visa application in 2014. Unlike the tribunal, the minister’s delegate accepted that he was gay and in a relationship with his male roommate. However, it found that he wouldn’t face significant discrimination in Nepal.
After the tribunal knocked him back, the man appealed to the Federal Circuit Court. He waited almost a year after the 2017 hearing to learn that he had lost. Appearing without a lawyer, he then went to the Federal Court to seek leave to appeal again.
Justice Stewart ruled in the man’s favour, finding he had a chance of winning and allowing him to appeal. The “troubling aspects” of the tribunal’s reasoning “may be fertile ground for a successful appeal”, he wrote.
The man has been referred to a pro bono lawyer, with the judge finding his lack of legal training meant he was “substantially hamstrung” in his ability to present his case to the courts.
The appeal is likely to be heard in coming months.