Two Melbourne-based Pakistani men, whose plea for refugee visas fearing persecution for being gay in their home country was rejected, will get another chance to prove their case.

in a majority decision, The Federal Court of Australia ordered the Administrative Appeals Tribunal on March 31 to decide on appeals filed by the duo seeking a review of the order rejecting their applications for permanent protection visas.

A, who is now 29 and D, who is 33, (identities withheld) had arrived in Australia in 2009 on student visas. Both their families knew each other in Pakistan and on their arrival, they shared a room in the house of A’s brother in Melbourne.

On the expiry of their student visas, they applied for a graduate visa, which was rejected.

In 2013, they applied for protection visas but it was refused by a delegate of the Minister For Immigration And Border Protection in 2014.

The tribunal in 2016 upheld the order and did not accept A and D’s claims that they were homosexual.

The Federal Circuit Court in 2019 dismissed the application for a judicial review following which the matter reached the Federal Court.

The tribunal in its order had disbelieved that they were a couple and said they appeared to have fabricated their first sexual encounter.

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One of the main reasons it cited was the different answers given during a hearing in April 2016 to the question about what the young men had done after they first had sex and the timing of their second sexual encounter.

In their applications, the two men claimed that they had had their first sexual experience in 2010, after A’s birthday party.

“As we were both drunk, we couldn’t control expressing our feelings that night and finally we shared all pleasures gay couples would do. Since then, we have been sharing the same room and in a relationship as well… our relationship continued to grow stronger, we always spent time together. We hang out together, we party together… But we never disclose our relationship to anyone whether it is our friend or family.”

Six years later at the 2016 hearing, A said they had not immediately spoken about what they had done after having sex for the first time and had gone about their normal routine. They had next had sex a couple of weeks later.

D told the tribunal that they had discussed that night, and had sex for the second time a few days later. When later confronted with each other’s statement, the men said it had happened years ago and they recollected about 60 – 70 % of the incidents.

The tribunal held that they found it “implausible” that the couple would go on with their normal routine after having sex for the first time and not discuss the implications or their sexuality in the aftermath of that first sexual encounter.

Their failure to accurately recall whether they had sex for the second time days later or weeks later also went against them.

The other reasons cited was the fact that between February 2011 and April 2013, the two men had spent time apart due to their international travels at different times. The tribunal found ïnconsistency” in the couple’s desire to keep their relationship secret from family and society, but visiting gay clubs and a sauna in Melbourne.

The federal court said that in its view “the Tribunal’s reasoning with respect to the immediate aftermath of the appellants’ first sexual experience is logically flawed and thereby irrational.”

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“The expressed bases for the assumptions are the facts that: the appellants both claim to have had homosexual feelings since they had been at high school in Pakistan; both claim not to have had sexual intercourse previously; both claim not to have known the other was homosexual before the night of their first encounter, and both claim to come from conservative families and a conservative social milieu.  In our view, those facts, on their own, are not rationally probative of the assumptions. 

It cannot be said that the psychological reactions of a couple to their first sexual encounter are matters of common human experience.  Indeed, to the extent that anything can be said about such matters from common human experience, it would be that the psychological reactions of a couple to their first sexual encounter are likely to vary widely, reflecting the wide range of human emotional attributes,” the majority said in their judgment. The minority judgement opined that the appeals should be dismissed.

The court ordered that the matter should be “remitted to the Tribunal for re-determination according to law by a different member of the Tribunal”.

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