The Administrative Appeals Tribunal showed “extreme illogicality” and its decision lacked “an intelligible foundation” when it rejected the appeal of an Indian asylum seeker seeking protection in Australia because of his homosexuality, the full bench of the federal court has found.



And the judge who heard his appeal – formerly accused but cleared of apprehended bias over his extraordinary record of refusing migration appeals – “fell into error” when he also rejected the claim in an ex tempore decision, without retiring from the bench to consider it.

The AAT, and subsequently Judge Sandy Street, heard appeals from an Indian man who was seeking protection in Australia, claiming he faced persecution in his homeland because of his homosexuality.

The asylum seeker, from a conservative Sikh family in India, argued he would be persecuted because of his homosexuality if he were forcibly returned to his home country.

In support of his claim of being homosexual, he tendered evidence from 16 witnesses, including men he had met on gay dating app Grindr and with whom he had had casual sex.

But the Administrative Appeals Tribunal did not believe he was gay, finding he was not homosexual and would not “pursue a homosexual lifestyle upon his return to India”.

The AAT said evidence of a three-year relationship with another man was “fabricated” and “contrived”.

The tribunal said the asylum seeker had “had some sexual experiences with men” but this proved “only his preparedness to do anything he considers necessary in order to achieve a favourable immigration outcome”.

The AAT’s decision was appealed to the federal court and heard by Street.

In 2015, it emerged Street had rejected 252 out of 254 migration appeals in a six-month period.

The claim of apprehended bias against him was rejected by the full federal court but documents filed in court, and revealed by the ABC, showed migration applicants before Street had a success rate of 0.79%, compared with all other judges’ rates of between 10 and 12%.

But this week, the full bench of the federal court unanimously ruled that “the AAT’s decision [in the Indian applicant’s case] demonstrates extreme illogicality and lacks an intelligible foundation”.

The court found the tribunal relied on “unexpressed and unwarranted assumptions not based in any evidence”, 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 court also found Street erred in failing to overturn the AAT’s flawed decision and for not providing reasons why he rejected the man’s appeal.

“The primary judge [Street] failed to address whether the AAT erred in dismissing the evidence of the 16 witnesses and thereby fell into error.”

Street ought to have found “there was no logical, rational, or probative basis for the finding”.

The Indian asylum seeker’s lawyer, Nilesh Nandan, told the Guardian that homosexuality was a matter in which many people held deeply ingrained, and sometimes unconscious, beliefs and assumptions.

“This can cause real difficulties in circumstances where a decision-maker may be unable to separate certain such assumptions from the decision-making process.”

Nandan said the case highlighted the significant difficulties faced by homosexuals and their loved ones when giving evidence in proceedings, demonstrated in this instance by the fact the initial decision-maker would not accept the applicant was homosexual.

“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.

“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 federal court upheld the appeal and ordered the claim be reheard by the Administrative Appeals Tribunal, by a different tribunal member.