Clo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 720
•16 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
CLO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 720
File number(s): SYG 1771 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 16 April 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision by the Administrative Appeals Tribunal (Tribunal) affirming decision to cancel Protection visa on the ground that the applicant had provided incorrect information when applying for the Protection visa – whether in concluding the applicant provided incorrect information the Tribunal applied arbitrary standards – whether the Tribunal otherwise made any unreasonable or illogical finding of fact – application dismissed. Legislation: Migration Act 1958 (Cth) ss 101(b), 107(1), 476 Cases cited: BWC16 v Minister for Home Affairs [2018] FCA 1375
DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197
Tran v Minister for Immigration [2019] FCCA 2859
Number of paragraphs: 80 Date of hearing: 23 June 2020 Place: Sydney Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Firmstone & Associates Counsel for the First Respondent: Mr P Knowles, by video Solicitor for the First Respondent: Mills Oakley Lawyers
Table of Corrections 19 April 2021 “2021” appearing on the cover page after “Date of hearing: 23 June” has been replaced with “2020”. ORDERS
SYG 1771 of 2017 BETWEEN: CLO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
16 APRIL 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $5,400.
REASONS FOR JUDGMENT
INTRODUCTION
The question that arises in this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal), in affirming the decision of a delegate of the first respondent (Minister) to cancel a Protection (Class XA) Subclass 866 visa (Protection visa), made a jurisdictional error in finding that the applicant, in his application for the Protection visa, had provided incorrect information about his sexuality. The applicant claims the Tribunal acted unreasonably by making a material finding contrary to evidence the Tribunal did not reject, and by making findings based on the application of arbitrary standards.
BACKGROUND
The applicant is a citizen of Lebanon. In October 2008 the applicant lodged with the Department of Immigration and Citizenship (Department) a form of application for the grant of a Protection visa (Application Form). The applicant there claimed:[1]
[1] CB21-24
(a)he left Lebanon because he is a homosexual, and homosexuality is “rejected in our society”;
(b)he is suffering silently because he is unable to confide in anyone, including to his close relatives, that he is gay;
(c)he did not seek medical treatment in Lebanon despite suffering from anxiety and depression; but he has sought medical treatment in Australia because homosexuality is not rejected in Australia;
(d)he will be harmed if his family becomes aware of his sexuality;
(e)he was “unable to rely on the authority for protection” because the police “abuse gays”;
(f)he comes from a very conservative society, and his culture and religion rejects homosexuality;
(g)in Lebanon people who are suspected of being gay are targets for physical abuse;
(h)he had been accused of being gay, particularly during his schooling, and he was physically abused and tormented by other students;
(i)his parents are pressuring him to get married but he does not want to; and
(j)the applicant wanted to have a gay relationship, but that would be impossible in Lebanon.
In support of his claims the applicant submitted a letter from his psychologist, dated 6 October 2008, which said, among other things:
When I first saw [given name of applicant] he was very anxious and confused, he related to me about some of his distressful experiences overseas because he is a “gay”. Some of those incidents he experienced were traumatic and life threatening, as gays considered as unmoral, antisocial and abnormal. He was attacked many times… he was rejected by his friends when they find he is gay. It was impossible for him to live a normal life, find a job and experience any sort of satisfaction and happiness in the community (Lebanon).
On 30 December 2008 the applicant was granted a Protection visa.
The applicant left Australia for Lebanon on 9 October 2011; and while in Lebanon the applicant married a woman (applicant’s wife).
On 19 October 2012 the applicant’s wife lodged an application for a Partner visa sponsored by the applicant. In support of that application the applicant said, in a statutory declaration dated 15 October 2014, “I definitely see my relationship as a long term one. She is the mother of our kids and the love of my life.” The applicant’s wife became a permanent resident of Australia on 24 February 2015; and the applicant and the applicant’s wife have 3 children.
By letter dated 27 April 2016 (107 Notice) a delegate of the Minister informed the applicant the delegate considered that, contrary to s 101(b) of the Act, the applicant had provided incorrect information in the Application Form. Paragraph (b) of s 101 of the Act provides that a “non-citizen must fill in or complete his or her application in such a way that . . . no incorrect answers are given or provided”. The delegate issued the 107 Notice pursuant to s 107 of the Act which provides that if “the Minister considers that the holder of a visa who has been immigration cleared . . . did not comply with section 101 . . . the Minister may give the holder a notice” giving particulars and making the statements specified in s 107(1) of the Act.
In the 107 Notice the delegate identified information the applicant had provided in the Application Form, after which the delegate stated as follows:
On the basis of the information above you have sought Australia’s protection from Lebanon on the basis of your alleged homosexuality and your inability to return to Lebanon due to you alleged homosexuality.
I consider this information to be incorrect and that you do not hold the profile you have claimed as you have:
- voluntarily spent a considerable period of time in Lebanon between 9 October 2011 to 7 September 2012 when you claimed you feared harm from Lebanon due to your alleged homosexuality and therefore could not return.
- during this time you were in an apparently ongoing and genuine heterosexual relationship and you married and had a child.
The information provided by you in the Statutory Declaration accompanying [the applicant’s wife’s] partner visa application confirms you are in fact involved in a long-term and on-going relationship with a woman by marriage (that is, a heterosexual relationship) and have fathered two children.
Given the above significant events that have taken place, in terms of your claimed homosexuality, I consider the information before me supports that you contrived this claim in order to secure permanent residence.
In response to the 107 Notice the applicant provided a statutory declaration dated 9 May 2016 in which he stated as follows (emphasis added):[2]
[2] CB176-179
(a)The applicant applied for a Protection visa on the basis of his “sexual identity”.
(b)The applicant was not interviewed by the Department. If the applicant had been interviewed he “would have elaborated upon [his] claims”.
(c)The applicant’s claims relating to his sexual orientation are “true and correct”.
(d)At the time the applicant lodged his application for a Protection visa he was not a committed Muslim.
(e)During the period the applicant “lusted for men” he was not living in accordance with Islamic teachings and moral standards.
(f)After being granted a Protection visa the applicant “went through a period of moral and religious conflict” where he had to choose between his religion and sexual orientation. The applicant “was conflicted for a period of over 3 years”.
(g)The applicant “ultimately chose to live according to my religious teaches [sic] and moral standards”, and he “chose to turn” his back to his “lustful ways and follow what God wants” the applicant to be “which is to live as a man free from carnal sin”. The applicant hoped to remain faithful to his religion, wife, and family.
(h)The applicant married his wife and on 19 October 2012 she lodged an application for a partner visa. The applicant was the sponsor. Everything the applicant and the applicant’s wife stated in the application for a partner visa was “true and correct”. The applicant’s wife is now a permanent resident of Australia. This was approximately 4 years after being granted a Protection visa, and after the applicant “experienced a personal reversion to Islam”.
(i)The applicant’s wife is aware of the applicant’s “past struggles” with his sexual orientation.
(j)On 9 October 2011 the applicant travelled back to Lebanon, where he stayed for approximately 9 months. During this time the applicant never discussed his “personal circumstances”; and his parents, siblings and close relatives were unaware of his “former sexual orientation and past struggles”.
(k)The applicant never made claims to the Department that he “can return to Lebanon and live openly as a gay man”, or that his parents were aware of his “true sexual orientation”.
(l)The applicant never revealed to his parents, the rest of his family or “anyone else” about his “former sexual orientation”.
The applicant also provided a letter dated 9 May 2016 from a person (the Imam), in which he stated the following (emphasis added):[3]
I have known [the applicant] since 2009. He has been seeking religious and moral guidance from me. He confessed that he had previously not been living a wholesome and religious lifestyle and had maintained sexual desires which the Muslim religion does not approve of. I have known many young men who struggle with their sexual identity and it is my job to provide them with religious guidance to live a virtuous life, according to the teachings of the Sunnah of the prophet Muammad (saw) and the Holy Koran.
I counselled him and he has now reformed his ways and he has since become a married man of 3 children. He is now a very religious and virtuous man who loves his family very much and has completely reformed from his old ways and habits.
[3] CB175
The delegate did not accept the applicant’s claims, and, by notice dated 14 November 2016, the delegate cancelled the Protection visa.
BEFORE THE TRIBUNAL
On 24 November 2016 the applicant applied to the Tribunal for review of the delegate’s decision. The applicant provided to the Tribunal a statutory declaration from the applicant’s wife in which she stated as follows:
(a)The applicant was previously attracted to males, but “he reformed” after again embracing the true teachings of Islam. The applicant is now a faithful and religious man who regrets his former life of sin.
(b)The applicant has managed to overcome his past homosexual desires by being faithful to God and his religion. God has helped the applicant overcome the “evil desires that afflicted him”.
(c)At the time the applicant lodged the application he had homosexual desires, but the applicant has since reformed his ways; and he has become a loving and dedicated husband and father.
(d)Shortly after they married the applicant revealed “his past” to the applicant’s wife and said he had once again embraced Islam and its teachings. The applicant’s wife accepted the applicant’s “past mistakes”.
(e)No one in Lebanon is aware of the applicant’s past because he has managed to keep it a secret. The applicant’s wife is the only person aware of the applicant’s past.
(f)Returning to Lebanon was not a problem for the applicant because he has kept his former homosexuality a secret. The applicant only would have been harmed in Lebanon if his secret had gotten out.
(g)The applicant and the applicant’s wife cannot leave their children in Australia if they are forced to return to Lebanon. Their children deserve the opportunity to live in a safe and clean country.
Before the Tribunal, the applicant said that when he came to Australia he came with the idea to do “it”, because he can do whatever he wants in this country. He did not, however, have any sexual intercourse or coming together with another guy, although he used to go to places where he could see “them”, but the applicant could not remember the names of the bars.[4] When he first arrived in Australia in 2008 he had an Indian neighbour and colleague, Mr K, and discovered Mr K had the same sexual feelings as the applicant, and he took the applicant to clubs four to five times.[5] “K” was not Mr K’s actual name, and the applicant did not know Mr K’s name.[6] The applicant said Mr K was sexually active with other men, and he had encouraged the applicant to have sex with him. The applicant spent nights with Mr K in bed where they touched each other, but they did not have sex.[7] The applicant also said that he started going to the mosque and after about a year he gathered the courage to ask “the imam” about his sexuality. The applicant first spoke to “the sheikh” about two years after the applicant arrived in Australia. The “sheikh” told the applicant he would help the applicant “get out of it”.[8] The “imam” started to force the applicant to get up and pray.[9]
[4] CB260, [36]
[5] CB260, [37]
[6] CB260, [41]
[7] CB261, [42]
[8] CB261, [47]
[9] CB261, [48]
Particularly relevant to the applicant’s case is the following evidence the Tribunal its reasons recorded in the applicant gave at the hearing:[10]
[34] The Tribunal asked the applicant to describe his sexuality in his own words. The applicant said he would describe himself as heterosexual or bisexual. At the moment all his tendencies go towards women. His mind “plays up sometimes” but he is with his wife and a good husband.
[54] The Tribunal asked what the applicant personally believed about homosexuality generally at present. He said that he felt that this was normal, because he had been like that in the past. He said that if one wants to get out of being a homosexual, religion can get them out of this. The applicant said that this tendency towards religion conquered his tendency towards homosexuality. When asked whether when he says “conquered” it means that he feels no sexual attraction towards men, he still has this “feeling” but his wife helps him with this and so does the sheikh.
[10] CB260, [34]; CB262, [54]
TRIBUNAL’S REASONS
The Tribunal was satisfied the 107 Notice had been validly issued. The questions the Tribunal considered arose before it, therefore, were whether there was “non-compliance in the way described in the s.107 notice”, and, if so, whether the Protection visa should be cancelled.
The Tribunal found the applicant came to Australia and applied for protection on the false basis of being gay. The Tribunal principally relied on the applicant’s not having presented a “persuasive narrative in relation to this alleged inner conflict which lasted about three years”.[11] The “alleged conflict” was a reference to the Tribunal’s characterisation of the applicant’s claim as describing “a simple dichotomy” between “being gay and attracted to men in opposition to being religious and not attracted to men”, and between the applicant, at the time he applied for a Protection visa, complaining of being pressured by his parents to get married against his will and, by the time the Protection visa was cancelled, the applicant having “turned his back on his lustful ways and started living happily with his wife”.[12] The Tribunal noted this “simplistic representation” came through even more clearly in the letter from the Imam and from the applicant’s wife’s statutory declaration where they referred to the applicant being used to be attracted to men but the applicant’s having stopped being “attracted to men”, and to the applicant’s wife referring to the applicant’s “former homosexuality”.[13]
[11] CB264, [70]
[12] CB264, [68]
[13]CB264, [69]
The Tribunal provided reasons why it did not find the applicant’s narrative persuasive. The applicant “did not convince the Tribunal” the applicant “went on a journey”; his evidence “lacked the richness and texture one would expect from a person who has lived in a challenging environment as a closeted gay, tasted the freedom to explore his sexuality in Australia and ultimately decided that he should prioritise religion over sexuality”;[14] the applicant did not explain why he chose to “turn his back on his lustful ways” in circumstances where he had previously sought protection in Australia because of his sexual orientation;[15] and in his oral evidence the applicant mechanically recited the claims that he felt conflicted, but he did not explain why religion prevailed over his sexual freedom.[16]
[14] CB264, [70]
[15] CB264, [71]
[16] CB264, [72]
The Tribunal relied on the following additional matters for finding the applicant came to Australia and applied for protection on the false basis of being gay:
(a)According to his own evidence the applicant had shown little interest in religion while in Lebanon.[17]
[17] CB264, [73]
(b)The applicant did not explain adequately why, after being granted protection in Australia, he decided to embrace the religion which the applicant claimed had caused him to live in fear in Lebanon.[18]
(c)The applicant did not go through a period of questioning what the applicant claimed he believed was Islam’s categorical rejection of homosexuality.[19]
(d)The applicant did not claim he had any discussions with the Imam about what the applicant should do, or about any practical tips how to resist sexual attraction.[20]
(e)The applicant did not claim he was initially reluctant but the Imam managed to persuade him to change his sexuality in the name of religion.[21]
(f)The applicant did not describe any discussions or arguments, internal or with the Imam, about the conflict between religious duty and sexual desire.[22]
(g)There was a paucity of evidence about any external manifestation of the applicant’s gay sexuality in Australia. The applicant said he had spent time with one colleague, Mr K, but the applicant could not remember his actual name, even though the applicant said they were close for two years. The applicant estimated that he and Mr K went out to a club four or five times, but the applicant could not remember the names of any of the venues.[23]
(h)At the time of the hearing before the Tribunal there was not a single person in Australia who could provide evidence in support of the applicant’s sexuality claims, other than the applicant’s wife and professionals associated with the applicant’s Protection visa application.[24]
(i)The applicant did not have sexual intercourse with a man in Australia either before or after being granted the Protection visa, and the Tribunal did not accept as plausible the applicant’s reasons for not having done so, namely, a fear of having penetrative sex because it might cause him to bleed. The Tribunal found it implausible that the applicant would not have educated himself by, for example, talking to other gay men such as Mr K, and thus realised his fear of bleeding was misplaced.[25]
(j)In the Application Form the applicant claimed he had suffered physical abuse in Lebanon, but in his oral evidence the applicant said he had not suffered physical abuse in Lebanon.[26]
(k)Given the applicant’s wife views that homosexuality is a “deadly sin”, the Tribunal did not accept it would have been “such a straightforward process for her to accept her husband “and his past mistake because we have all made mistakes””.[27]
[18] CB264, [73]
[19] CB265, [74]
[20] CB265, [75]
[21] CB265, [76]
[22] CB265, [76]
[23] CB265, [77]
[24] CB265, [78]
[25] CB265, [80]
[26] CB266, [81]
[27] CB266, [82]
The Tribunal then considered whether the Protection visa should be cancelled; and for reasons it is not necessary to set out here, the Tribunal concluded the Protection visa should be cancelled.
GROUND OF APPLICATION
The applicant relies on the following ground of application (references to cases omitted; errors in original):
The Tribunal made a jurisdictional error in concluding that the Applicant had provided incorrect information regarding his sexuality contrary so 101(b) of the Migration Act 1958 (Cth).
a.The Tribunal under the law of legal unreasonableness could not make a finding fact for which there was no evident and intelligible justification . . . and which was material to the Authority’s decision . . . .
b.As part of the law of legal unreasonableness, the Tribunal was required not to impose an arbitrary standard of conduct on or in relation to the Applicant . . . .
c.The Tribunal imposed such a standard or was otherwise legally unreasonable at the following points in its decision:
i.The Tribunal found at paragraph 68 of its decision that the Applicant did not need to make a conscious effort to resist his sexual urges, desires and feeling whereas the Tribunal had noted at paragraph 34 of its decision the Applicant’s evidence that he would describe himself as “bisexual” and his “mind plays up sometimes” and at paragraph 54 of its decision the Applicant’s evidence that “[when asked whether when he says ‘conquered’ it means that he feels no sexual attraction towards men, he still has this ‘feeling’ but this wife helps him with this and so does the sheikh”;
ii.The Tribunal found at paragraph 69 of its decision that the implausible simplicity of the Applicant’s development in his sexual orientation and behaviour was borne out of the account of the imam and the Applicant’s wife, with both saying that the Applicant had stopped being attracted to men and the latter referring to the Applicant’s “former sexuality”, whereas these external accounts could not reasonably influence or undermine the Tribunal’s assessment of the Applicant’s own feelings in light of the Applicant’s description at paragraphs 34 and 54 of its decision.
iii.The Tribunal found at paragraph 70 of its decision that the Applicant was required to present a narrative of a journey of richness and texture, without regard to how the Applicant in his circumstances might articulate his experience, and found at paragraph 84 of its decision that this meant the Applicant was an had always been heterosexual;
iv.The Tribunal found at paragraph 71 of its decision that the Applicant had made “this apparently simple choice to be a virtuous Muslim” and was now “free from carnal sin” whereas the Applicant had described at paragraphs 34 and 54 of the Tribunal’s decision ongoing attraction to men;
v.The Tribunal found at paragraphs 72-73 of his decision that the Applicant had not explained why he decided to embrace Islam and the opposition of Islam (at least on the Applicant’s account) to homosexuality, without regard to how the Applicant in his circumstances might articulate his experience;
vi.The Tribunal found at paragraph 74 of its decision that the Applicant should have gone through a period of questioning Islam’s categorical rejection of homosexuality, without regard to how the Applicant in his circumstances, including an inarticulate liking of Islam, would respond;
vii.The Tribunal found at paragraphs 75-76 of its decision that the Applicant would have had discussions with the imam and received practical tips from the imam about how to resist same sex attraction, without regard to how the Applicant in the circumstances might behave;
viii.The Tribunal found at paragraph 76 of its decision that the Applicant’s description of a religious ritual performed by the Imam was not believable as a way of overcoming the Applicant’s homosexual behaviour without regard to how the Applicant in his circumstances might conduct himself.
ix.The Tribunal found at paragraph 77 of its decision that the Applicant would have travelled more frequently to gay nightclubs, including by himself, without regard to whether the Applicant might legitimately prefer not to do so on more than four or five occasions or alone;
x.The Tribunal found at paragraph 79-80 of its decision that it was implausible that the Applicant held or did not overcome fears of anal intercourse and engage in such activity, over and above the mere nakedness and touching with other men described, without regard to whether the Applicant might maintain a fear of anal intercourse, however irrational, and might legitimately prefer to restrict himself to mere nakedness and touching;
xi.The Tribunal found at paragraph 82 of its decision that it was a straightforward process for the Applicant’s wife to accept his past homosexual behaviour and, therefore, the account of the Applicant’s wife was unpersuasive, whereas there was no basis for the Tribunal’s conclusion that the Applicant’s wife had found this a straight forward process or whether the Applicant’s wife in her circumstances would or would not describe her feelings in more detail;
xii.The Tribunal found at paragraph 85 of its decision that the Applicant had happily married and had three children, suggesting to that the Applicant had applied for the protection visa on the false basis of being gay, whereas the Applicant’s path to marriage and parenthood was not inherently incompatible with his account of his sexual orientation.
Parties’ submissions
In his counsel’s written submissions, the applicant makes a “free-standing complaint”. The applicant submits that in paragraph 68 of its reasons the Tribunal found the applicant did not need to make a conscious effort to resist his sexual urges. The applicant submits this finding is unreasonable or irrational because it ignores the evidence the applicant gave before the Tribunal as set out in paragraphs 34 and 54 of its reasons which the Tribunal did not reject; and the effect of that evidence, the applicant submits, is that the applicant “confessed ongoing homosexual thoughts or attractions, which he suppresses with the support of his wife”.[28] The applicant also submits that in paragraph 71 of its reasons the Tribunal characterised the applicant’s rejection of his lustful ways as an “apparently simple choice”; and the Tribunal was “wrong” to do so. [29] The applicant also submits that the Tribunal’s findings particularised in the ground of application (Impugned Findings) are based on the application of arbitrary standards, or are contrary to evidence the Tribunal accepted.
[28] Submissions for the Applicant, [12]
[29] Submissions for the Applicant, [12]
In his counsel’s written submissions the Minister submits the Tribunal’s findings in paragraphs 68 and 71 of its reasons are not unreasonable or illogical. They constitute a finding that the applicant’s evidence did not ring true because it provided no detailed explanation for the abrupt change in the applicant’s life. The Tribunal did not rely on an assumption that such a sudden change could not occur; the Tribunal instead did not accept the applicant’s evidence because the Tribunal found it was not suggestive of the experience of a person grappling with a significant change in circumstances, and the suppression of his or her previously expressed sexual orientation.[30] The Minister further submits that none of the Tribunal’s other findings the applicant claims are unreasonable or based on arbitrary standards are legally unreasonable.
[30] First Respondent’s Outline of Submissions, [27]
Approach
I will first consider what the applicant described as the “free-standing complaint”. I will then consider the grounds on which the applicant claims each of the Impugned Findings is legally unreasonable or is based on an arbitrary standard. Before I consider each of those grounds, I will briefly refer to the relevant principles this part of the applicant’s case engages, these being the principles I identified and considered in Tran v Minister for Immigration.[31]
[31] Tran v Minister for Immigration [2019] FCCA 2859
Free standing complaint
It is true that in paragraph 68 of its reasons the Tribunal stated it “appeared that the applicant did not need to make a conscious effort to resist his sexual urges, desires and feelings”. That, however, does not reflect a finding by the Tribunal. The statement is the Tribunal’s characterisation of the claims the applicant made in the statutory declaration he submitted in response to the 107 Notice. That is apparent from the text of paragraph 68 of the Tribunal’s reasons (emphasis added):[32]
While in the Protection visa application the applicant complained about being pressured by his parents to get married against his will, at the time of visa cancellation, he had turned his back on his lustful ways and started living happily with his wife. It appeared that the applicant did not need to make a conscious effort to resist his sexual urges, desires and feelings.
[32] CB264, [68]
This passage faithfully represents the substance of the claim the applicant made in the statutory declaration he provided to the Department in response to the 107 Notice. The applicant there claimed he “went through a period of moral and religious conflict”; he “was conflicted for a period of over 3 years”; he “ultimately chose to live according to my religious teaches [sic] and moral standards”, and he “chose to turn” his back to his “lustful ways and follow what God wants” the applicant to be “which is to live as a man free from carnal sin”. The Tribunal’s statement that it “appeared that the applicant did not need to make a conscious effort to resist his sexual urges, desires and feelings” is a characterisation of these claims; and it was reasonably open to the Tribunal to so characterise the applicant’s claims.
The same considerations apply to the Tribunal’s statement in paragraph 71 of its reasons that once the applicant “made this apparently simple choice to be a virtuous Muslim he was now living “free from carnal sin””. This is the Tribunal’s characterisation of the claims made by the applicant in the statutory declaration he submitted in response to the 107 Notice. That is apparent from the text of paragraph 71 of the Tribunal’s reasons (emphasis added):[33]
In the statutory declaration of 9 May 2016 the applicant claims that he was “conflicted for a period of 3 years” because he had to choose between his sexual orientation and his religious convictions. He chose to turn his back on his lustful ways. He does not explain why he chose to do so – having previously sought protection in Australia on the basis that his sexual orientation is more important than being a “good” Muslim. Once he made this apparently simple choice to be a virtuous Muslim he was now living “free from carnal sin”.
[33] CB264, [71]
It was reasonably open to the Tribunal to characterise the claims the applicant made in his statutory declaration as constituting an “apparently simple choice” to be a virtuous Muslim.
The structure of the Tribunal’s reasons also shows that it went no further than to characterise the claims the applicant made in the statutory declaration he submitted in response to the 107 Notice. In paragraphs 10 to 66 of its reasons the Tribunal sets out the claims the applicant made and the evidence on which he relied. In paragraphs 67 to 84 the Tribunal considers whether the applicant provided incorrect information. It does so:
(a)first, by setting out the effect of, and making observations and findings in relation to, the claims the applicant made in his statutory declaration he submitted in response to the 107 Notice, to the evidence the applicant’s wife gave in her statutory declaration, and to the statements contained in the Imam’s letter;[34]
(b)second, by making observations of the manner in which the applicant gave his oral evidence before the Tribunal;[35] and
(c)third, by making particular observations on particular aspects of the applicant’s and the applicant’s wife’s evidence, and identifying things the applicant did not claim, and evidence the applicant did not provide.[36]
[34] CB264, [68]-[71]
[35] CB264, [72]
[36] CB264-266, [73]-[83]
It is only after the Tribunal undertook these tasks that it records its ultimate finding in paragraph 85 of its reasons that the applicant came to Australia and applied for protection on the false basis of being gay. That indicates the Tribunal made its findings after it took into account all of its findings and observations set out in paragraphs 67 to 84 of its reasons.
I therefore do not accept the Tribunal made any error in stating that it appeared the applicant did not make a conscious effort to resist his sexual urges; or in stating that once the applicant made the apparently simple choice to be a virtuous Muslim he was now living “free from carnal sin”; and that is because these statements constituted characterisations of the claims the applicant made in the statutory declaration he provided in response to the 107 Notice. It was reasonably open to the Tribunal to so characterise the applicant’s claims.
Impugned Findings based on application of arbitrary standards?
The applicant submits the Impugned Findings are based on the application of arbitrary standards of knowledge. The applicant relies on the judgment of Thawley J in BWC16 v Minister for Home Affairs, where his Honour considered authorities that reviewed the circumstances in which the Tribunal will be held to have imposed arbitrary standards of knowledge when assessing whether a person holds a particular set of religious beliefs.[37]
[37] BWC16 v Minister for Home Affairs [2018] FCA 1375
Some principles
Thawley J first referred to the judgment of Kenny J in Minister for Immigration and Citizenship v SZLSP,[38] noting that her Honour addressed the question whether jurisdictional error might arise in applying an “arbitrary standard” of knowledge of which a person must have to be found to be a follower of a religion; and then to the Full Federal Court’s judgment in Minister for Immigration and Citizenship v SZOCT.[39] Thawley J then set out[40] a passage from the judgment of Jacobson J which included the following:[41]
First, where an applicant applies for a protection visa on the ground of a well-founded fear of persecution by reason of religion, it is permissible for the Tribunal to explore the level of his or her knowledge and understanding of the religion . . . .
Second, if the Tribunal questions the applicant about his or her beliefs, it is permissible for it to evaluate the applicant’s answers against probative material which evinces the doctrines of the religion. The weight to be given to the evaluation will ordinarily be a matter for the Tribunal . . .
Third, where the Tribunal rejects an applicant’s claim to be a follower of a particular religion, there must be a sufficiently disclosed rational basis for concluding that the elements of which the applicant was ignorant were elements that an adherent to the religion might reasonably be expected to know . . .
Fourth, where the Tribunal’s rejection of the claim is based upon an evaluation of the way in which the applicant has expressed himself, or herself, on matters of emphasis or detail of the particular religion, the issue is a difficult one . . . . The principle which appears to follow from the Full Court authorities, and from recent High Court authority . . . is that the decision may be affected by jurisdictional error if it reveals a sufficient lack of rational or logical connection between the Tribunal’s assessment of the applicant’s credit and the material upon which it relied to make that assessment.
[38] Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
[39]Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159
[40] BWC16 v Minister for Home Affairs [2018] FCA 1375, at [51]
[41] Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159, at [7]-[10] (references omitted)
The cases to which Thawley J referred do not hold there is a distinct ground of jurisdictional error relating to the assessment of whether a person holds a particular religious or political belief or opinion. The cases rely on the broader category of jurisdictional error based on the Tribunal’s making of findings in the absence of an evidential, rational, or reasonable foundation. That is how Thawley J characterised the jurisdictional error his Honour found the Immigration Assessment Authority made in BWC16:[42]
The Authority’s decision was affected by jurisdictional error. First, it found as a fact that the appellant had stated he was unaware of the TULF party’s history. He did not. The making of a critical finding of fact without probative evidence can give rise to jurisdictional error. Here the finding of fact was sufficiently material to result in the Authority’s decision being affected by jurisdictional error.
This error can be characterised in other ways:
(1)a critical or dispositive finding of fact which is unsupported by probative material may be characterised as involving reasoning which is irrational or illogical such as to give rise to jurisdictional error in the way contemplated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] . . . .
[42] BWC16 v Minister for Home Affairs [2018] FCA 1375, at [57] [58]
The applicant also relies on the following passage from the judgment of Gleeson J (when sitting in the Federal Court) in DHK16 v Minister for Immigration and Border Protection:[43]
In my view, there is an assumption underlying this reasoning that the appellant’s mother was able and willing to use her land as collateral for a loan for the appellant. However, the information in the protection visa application was to the contrary of this assumption and there is no suggestion of any other information (putting aside what might be inferred from the entry interview) that supported such an assumption. As Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind. In this case, contrary to the IAA and FCCA judge’s assumption that I have identified, the mother apparently had been unable or unwilling to provide assistance to relieve the appellant of his debt to SW.
[43] DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353, at [33]
That an administrative tribunal has made findings based, or in part based, on an articulated or implicit generalisation that is based on a tribunal’s common life experiences would not necessarily mean the tribunal has made a finding without evidence, or that it has applied an arbitrary standard, or has otherwise acted irrationally; and that is because “fact-finders often rely on implicit generalisations based on common life experiences when drawing inferences from established facts”.[44] The nature of the generalisations on which a “juryman” (for which “fact-finder” may be substituted) relies has been described by the philosopher L Jonathan Cohen as follows (emphasis added):[45]
[W]hen a juryman takes up his office his mind is already adult and stocked with a vast number of commonplace generalizations about human acts, attitudes, intentions, etc., about the more familiar features of the human environment, and about the interactions between these two kinds of factor, together with an awareness of many of the kinds of circumstances that are favourable or unfavourable to the application of each such generalization. Without this stock of information in everyday life he could understand very little about his neighbours, his colleagues, his business competitors, or his wife. He would be greatly handicapped in explaining their past actions or predicting their future ones. But with this information he has the only kind of background data he needs in practice for the assessment of inductive probabilities in the jury-room. He does not need to have tacitly ingested a mass of quantitative or numerical statistics for this purpose. Nor does he need implicitly to remember some sophisticated mathematical algorithm in order to compute the probabilities from the data. The inductive probability of the proposed conclusion on the facts before the court depends just on the extent to which the facts are favourable to some commonplace generalizations that connect them to the conclusion.
[44] Springs v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 197, at [74] (Perram J), referring to the discussions of “generalisations” in Tran v Minister for Immigration & Anor [2019] FCCA 2859, at [23]-[28]
[45] L Jonathan Cohen The Probable and the Provable, Clarendon Press, Oxford, 1977, at pages 274-275
The extent to which courts have relied on unproven generalisations is documented by Heydon in Cross on Evidence.[46] Heydon said: [47]
Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used . . . . It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life. . . . . This general common experience of life causes the minds of courts to be full of many generalisations – right or wrong, crude or subtle, useful or misleading – about the behaviour of humans and about the physical and social world they inhabit.
[46] Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths, at [3200] -[3290]
[47] Heydon, J. D., Cross on Evidence Tenth Australian edition, LexisNexis Butterworths, at [3200]
Thus, an administrative tribunal, such as the Tribunal, should only be held to have made a jurisdictional error in making a finding if it is not possible to articulate any generalisation that could reasonably support the finding, or, if some generalisation can be articulated, the generalisation is one on which, in the particular circumstances of the case, no reasonable or rational decision maker would rely. That means that where, as is the case in this proceeding, an applicant claims the Tribunal made findings based on the application of arbitrary standards or the absence of evidence, the applicant bears the burden of proving either the Tribunal did not rely on any generalisation, or, if it did, the generalisation on which it did rely was not one on which a reasonable decision maker would rely.
I will now consider the applicant’s claims in relation to each Impugned Finding.
Particular (i)
Particular (i) claims that at paragraph 68 of its reasons the Tribunal found the applicant did not need to make a conscious effort to resist his sexual urges, desires, and feeling in circumstances where the Tribunal had referred to evidence that suggested otherwise. I have already concluded that in paragraph 68 of its reasons the Tribunal did nothing more than characterise the claims the applicant made in the statutory declaration the applicant provided in response to the 107 Notice; and that it was reasonably open to the Tribunal to so characterise the applicant’s claims.
Particular (i), therefore, does not disclose any irrationality or unreasonableness.
Particular (ii)
Particular (ii) is directed to the Tribunal’s findings at paragraph 69 of its reasons that the applicant’s wife’s statutory declaration and the Imam’s letter constituted a simplistic representation of the applicant’s change in his sexual orientation. Particular (ii) claims the applicant’s wife’s evidence and the statements made in the Imam’s letter could not influence or undermine the evidence of the applicant’s inner feelings the Tribunal recorded in paragraphs 34 and 54 of its reasons.
There are four things that may be said about Particular (ii).
(a)The applicant himself submitted the applicant’s wife’s statutory declaration and the Imam’s letter as evidence of his change in sexual orientation.
(b)If accepted, the statements made in the applicant’s wife’s statutory declaration and in the Imam’s letter could rationally support the applicant’s claims that he changed his sexual orientation.
(c)The Tribunal’s finding that the applicant’s wife’s statutory declaration and the Imam’s letter constituted a simplistic representation of the applicant’s decision to change his sexual orientation related to whether the Tribunal would accept that evidence. It was not directed to making a positive finding against accepting the applicant’s claims.
(d)In any event, the Tribunal’s finding that the applicant’s wife’s statutory declaration and the Imam’s letter constituted a simplistic representation of the applicant’s decision to change his sexual orientation was reasonably capable of undermining the evidence the applicant gave which the Tribunal recorded in paragraphs 34 and 54 of its reasons. In paragraph 54 of its reasons the Tribunal records the applicant as having said that the applicant’s wife and “the sheik” help him with his “feeling”. The applicant’s wife, however, does not state in her statutory declaration that the applicant had sought from her help about any “feeling” the applicant may still have in relation to men. The applicant’s wife stated she accepted the applicant “has now changed”. The Imam’s letter also does not refer to the applicant seeking, or the Imam providing, help to the applicant in relation to any “feeling” the applicant may still have in relation to men.
Particular (ii), therefore, does not disclose any irrationality or unreasonableness.
Particular (iii)
Particular (iii) is directed to paragraph 70 of the Tribunal’s reasons for decision. It claims the Authority “required” the applicant to present a narrative of a journey of richness and texture, without regard to how the applicant in his circumstances might articulate his experience.
The Tribunal did not “require” the applicant to present a narrative of a journey of richness and texture. All the Tribunal did was to rely on a number of express and implicit generalisation by reference to which the Tribunal assessed the applicant’s claim that he changed his sexual orientation. These included:
(a)an express generalisation that sexuality is “complex and fluid”;[48]
(a)an implicit generalisation that changing sexual orientation would itself be a complex process;
(b)implicit generalisations that a person who changed his or her sexuality because of that person’s resolution of a perceived conflict between his or her sexual orientation and his or her religion:
(i)would have had some conception of that conflict;
(ii)would have experienced thoughts and emotions in response to the perceived conflict;
(iii)would have resolved the perceived conflict in some way and at some point in time or times; and
(iv)would be able to articulate in some way the matters referred to in (i), (ii), (iii).
[48] CB264, [67]
The applicant does not submit the Tribunal did not rely on any implicit generalisations; and he has not submitted that to the extent the Tribunal relied on any generalisations it was unreasonable for it to do so. I am not satisfied the Tribunal acted unreasonably in relying on generalisation to this effect; and I am not satisfied it was not open to the Tribunal to find, as it did, that the account the applicant gave of his ceasing to be gay was not consistent with these generalisations and, therefore, was a factor it was open to the Tribunal to take into account in favour of finding the applicant was not gay as he had claimed in the Application Form.
The applicant does not appear to submit that it would never be open to the Tribunal to rely on the absence of a person’s ability to present a narrative of a journey of richness and texture as a reasons for not accepting that such person changed his sexual orientation. The gist of the applicant’s complaint is that it was unreasonable for the Tribunal to expect the applicant to present any such narrative; and that is because the applicant “has expressed himself in simple terms”; and this “may well be because the Applicant, with no disrespect, is not a man of words of letters”; and that, while a narrative of richness and texture “is a standard which might well be appropriate to someone of such high learning as to constitute the Tribunal”, there is “no apparent basis for the conclusion that the applicant should also meet that standard”. I do not accept these submissions. First, it is not clear what the applicant intends to convey by the submission the applicant “is not a man of words or letters”. Second, there is no evidence to support the submissions. Third, the applicant was represented before the Tribunal and, therefore, the applicant could have been assisted to bring out details of his conversion if he had in fact experienced the conversion he claimed he did. Fourth, I do not accept that it would only be persons of “high learning” who could give a narrative of richness and texture. The world abounds with daily examples of persons who are not of high learning delivering rich and textured narratives. The world also offers examples of persons of high learning who are not able to deliver rich and textured narratives.
Particular (iii), therefore, does not disclose any irrationality or unreasonableness.
Particular (iv)
Particular (iv) is directed to paragraph 71 of the Tribunal’s reasons. It claims the Tribunal found the applicant had made an “apparently simple choice to be a virtuous Muslim” in circumstances where in paragraphs 34 and 54 of its reasons the Tribunal referred to the applicant’s evidence that he had an ongoing attraction to men. The applicant appears to claim that the Tribunal’s finding in paragraph 71 of its reasons, therefore, is unreasonable or irrational.
I have already found that paragraph 71 of the Tribunal’s reasons is directed to the statutory declaration the applicant provided in response to the 107 Notice; and that it records the Tribunal’s characterisation of that evidence, which it was reasonably open to the Tribunal to make. For those reasons, the statements the Tribunal records in paragraph 71 of its reasons are not unreasonable or irrelevant.
Particular (iv), therefore, does not disclose any irrationality or unreasonableness.
Particular (v)
Particular (v) is directed to paragraphs 72 and 73 of the Tribunal’s reasons. The particular claims the Tribunal found the applicant “had not explained why he decided to embrace Islam and the opposition of Islam (at least on the Applicant’s account) to homosexuality”, and this finding was irrational or unreasonable because the Tribunal made the finding without regard to how the applicant in his circumstances might articulate his experience. In his counsel’s written submissions the applicant submits that a religious conversion “may well be something which may be not susceptible to rational explanation”; that it is not necessarily “or perhaps not even often” the “result of sophisticated cognition”, it being a “matter of belief, zeal or salvation”. The applicant further submits the Tribunal made no attempt to place the applicant “outside this stream of religious converts”. The applicant submits the applicant “might well have not questioned his perception that Islam rejected homosexuality and he might well have embraced rituals such as the holding of a holy text over his head”.[49]
[49] Submissions for the Applicant, [16(b)]
There are a number of matters to note about Particular (v) and the applicant’s submissions:
(a)The Tribunal did not say the applicant “had not explained why he decided to embrace Islam and the opposition of Islam (at least on the Applicant’s account) to homosexuality”. The Tribunal observed the applicant did not adequately explain why, after being granted protection in Australia, he decided to embrace the same religion which caused him to live in fear when he was in Lebanon.
(b)In making the observation in (a) the Tribunal relied on an implicit generalisation that persons who feared harm because of the antipathetic attitude of his or her religion to his or her sexuality would be able to explain why they decided to embrace that religion. I am not satisfied it was not reasonably open to the Tribunal to rely on a generalisation to that effect in giving weight to the applicant’s not giving more of an explanation than he did for embracing the very religion he had claimed caused him fear as a factor weighing in favour of the Tribunal’s finding that the applicant came to Australia and applied for protection on the false basis of being gay.
(c)It may be that in some cases a religious conversion may not be susceptible to any rational explanation, and it may be the applicant simply embraced rituals without him realising why he had ceased being gay. That does not mean it was not reasonably open to the Tribunal to rely on a generalisation that persons who have undergone a religious conversion, particularly where the conversion is to a religion which the person had previously claimed caused him to fear for his or her safety, are able to explain why they did so. A generalisation conveys a proposition of fact, which is believed to be true in most, not in all, cases. In other words, a generalisation is inherently a probabilistic notion.
(d)The applicant has not identified anything in the material that ought to have led the Tribunal to consider whether the applicant was incapable of adequately explaining why, having previously claimed fear of harm based on his being gay, he decided to embrace the religion he had claimed caused him fear.
Particular (v) also does not disclose any irrationality or unreasonableness.
Particulars (vi)
Particular (vi) is directed to paragraph 74 of the Tribunal’s reasons. It claims the Tribunal found the applicant should have gone through a period of questioning Islam’s categorical rejection of homosexuality, without regard to how the applicant, in his circumstances, including an unarticulated liking of Islam, would respond.
The Tribunal did not find the applicant should have gone through a period of questioning what the applicant claimed he understood is Islam’s categorical rejection of homosexuality. The Tribunal considered the applicant’s not having done so a factor that weighed in favour of finding that the applicant came to Australia and applied for protection on the false basis of being gay. The Tribunal relied on an implicit generalisation that a person who sees a conflict between his or her religion and that person’s sexual orientation would seek to explore with representatives of the religion why the religion rejects the person’s sexuality. I am not satisfied it was not reasonably open to the Tribunal to rely on such generalisation. The generalisation is of particular force in the circumstances of the applicant because the applicant claimed he sought, and he obtained, guidance from the Imam. Further, the applicant has pointed to no evidence that could reasonably have suggested to the Tribunal that the applicant may not have been in a position to question what he understood to be Islam’s categorical rejection of his homosexuality.
Particular (vi) does not disclose any irrationality or unreasonableness.
Particular (vii)
Particular (vii) is directed to the Tribunal’s observation in paragraph 75 of the Tribunal’s reasons that the applicant did not claim the Imam gave the applicant any practical tips about how to resist same sex attraction. Particular (vii) claims the Tribunal found the applicant would have had discussions with the Imam about how to resist same sex attraction without regard to how the applicant might have had such discussions.
The Tribunal did not find the applicant would have had discussions with the Imam about how to resist same sex attraction. The Tribunal considered the applicant’s not having had any such discussion with the Imam a factor that weighed in favour of finding the applicant came to Australia and applied for protection on the false basis of being gay. The Tribunal relied on an implicit generalisation that a person in the position of the applicant who conceives there is conflict between his or her sexuality and his or her religion, and who had been receiving religious and moral guidance from a representative of the religion, would be provided with some practical advice about how to cease that which was inconsistent with the particular religion, namely, same sex attraction. I am not satisfied it was not reasonably open to the Tribunal to rely on such generalisation.
Further, the applicant has not identified any evidence that was before the Tribunal that could reasonably have suggested the applicant was not in a position to ask the Imam for advice about how he could cease that which was inconsistent with the particular religion, namely, same sex attraction. The evidence suggests the applicant was in such a position. The Imam’s letter states the applicant had been “seeking religious and moral guidance from” the Imam, it was the Imam’s job to provide men “who struggle with their sexual identity” with religious guidance to live a virtuous life, and the Imam had counselled the applicant.
Particular (vii) does not disclose any irrationality or unreasonableness.
Particular (viii)
Particular (viii) is directed to the observations the Tribunal made in paragraph 76 of its reasons. It claims the Tribunal found the applicant’s description of a religious ritual performed by the Imam was not believable as a way of overcoming the applicant’s homosexual behaviour without regard to how the applicant, in his circumstances, might conduct himself.
It may be accepted that the Tribunal did not consider the Imam’s placing a religious text over the applicant’s head and praying for him to be a believable method for overcoming the applicant’s homosexual behaviour. It was, however, not only reasonably open to the Tribunal not to accept that this was capable of overcoming the applicant’s homosexual behaviour; it would have been unreasonable for the Tribunal to have acted on a generalisation to the effect that some persons could alter their sexual orientation simply by another person reciting prayers aimed at achieving that result. In any event, the applicant has pointed to no evidence that could have suggested to the Tribunal that the applicant was a person who was reasonably open to believing that the recitation of prayers could have induced him to alter his sexual orientation; and the applicant has pointed to no evidence that was before the Tribunal that could reasonably have suggested that the applicant was aware of the contents of prayers the Imam recited, or that his awareness of the contents of the Imam’s prayers led him to abandon his homosexuality.
Particular (viii) does not disclose any irrationality or unreasonableness.
Particular (ix)
Particular (ix) is directed to paragraph 77 of the Tribunal’s reasons. It claims the Tribunal found the applicant would have travelled more frequently to gay nightclubs, including by himself, without regard to whether the applicant might legitimately prefer not to do so on more than four or five occasions, or alone. In his counsel’s written submissions, the applicant rhetorically asks why should the applicant, in his circumstances, and from his background, have frequented nightclubs, thus impliedly submitting that, given the applicant’s circumstances and background, it would have been unreasonable for the Tribunal to have expected the applicant to visit gay nightclubs more than four or five times.[50]
[50] Submissions for the Applicant, [16(c)]
It is true that in paragraph 77 of its reasons the Tribunal referred to the applicant’s evidence that he estimated he went out to a club four or five times. The Tribunal summarised the evidence the applicant gave at paragraph 65 of its reasons:[51]
The Tribunal suggested that it had some concerns in relation to the applicant’s evidence as to what he did after he was granted the visa, but before he discovered Islam. The applicant said that he did not speak much English and he had to rely on [Mr K]. He would wait after work for [Mr K] to take him out e.g. to a nightclub. He also did not have an Australian driver’s licence. When the Tribunal asked the applicant why he could not drive on his Lebanese licence or catch public transport, he said that to this day he did not know the city very well and his English was not that good for public transport.
[51] CB263, [65]
The Tribunal considered that evidence in paragraph 77 of its reasons. The Tribunal said:
[The applicant] did little with the sexual freedom. He spent time with one colleague, [Mr K]. The applicant could not remember [Mr K’s] actual name, despite the fact that they were very close for two years. The applicant estimated that the total number of time they went out to a club was four or five and the applicant could not remember the names of any venue he went to. The Tribunal does not accept that the applicant would have been unable to find his way to a nightclub using public transport if the clubs he wanted to go to were located in the “city” and thus easily accessible by public transport.
It may be accepted the Tribunal relied on a generalisation that a male person who had gained his freedom to express his homosexuality would exercise that freedom; and that one way in which such person would exercise such freedom would be to visit places where other homosexual men frequent, such as gay nightclubs. I am not satisfied it was not reasonably open to the Tribunal to rely on such generalisation; and I am not satisfied there was anything before the Tribunal about the applicant’s circumstances and background, which would have rendered unreasonable the Tribunal’s relying on that generalisation. On the contrary, the generalisation was particularly apt in the case of the applicant. The applicant gave evidence he visited nightclubs with another homosexual male, Mr K; and it was reasonably open to the Tribunal to view the applicant as claiming that he would have gone more frequently if his English was good enough to enable him use public transport, and if he had good enough knowledge of Sydney to drive.
Particular (ix) does not disclose any irrationality or unreasonableness.
Particular (x)
Particular (x) is directed to paragraphs 79-80 of the Tribunal’s reasons. It claims the Tribunal found it was implausible that the applicant held or did not overcome fears of anal intercourse and engage in such activity, over and above the mere nakedness and touching with other men the applicant described, without regard to whether the applicant might maintain a fear of anal intercourse, however irrational, and might legitimately prefer to restrict himself to mere nakedness and touching.
The particular does not reflect any finding the Tribunal made. The Tribunal found it was implausible that the applicant would not have educated himself about whether penetrative sex could lead to bleeding. That finding rested on an implicit generalisation that a male who, like the applicant claimed, was very keen to have sex with another man but who feared that it might lead to some physical difficulty, would make enquiries about whether such fear was well-founded. I am not satisfied it was not reasonable for the Tribunal to rely on such generalisation.
Particular (x) does not disclose any irrationality or unreasonableness.
Particular (xi)
This particular is directed to paragraph 82 of the Tribunal’s reasons where the Tribunal said it did not accept that it would have been “such a straightforward process for” the applicant’s wife “to accept her husband “and his past mistakes because we have all made mistakes””. Particular (xi) claims there was no basis for the Tribunal to find that the applicant’s wife had found this a straight forward process. The particular also claims it was not reasonably open to the Tribunal to make such finding without considering whether, given the applicant’s wife’s circumstances, she would have been able to describe her feelings in more detail.
In paragraph 82 the Tribunal referred to the evidence the applicant’s wife gave in the statutory declaration the applicant submitted to the Tribunal. It was reasonably open to the Tribunal to characterise the applicant’s wife’s account of her acceptance of the applicant’s homosexuality to have been a straightforward process. Further, the applicant has pointed to no evidence that was before the Tribunal, relating to the applicant, which could have indicated that the applicant’s wife was incapable of expressing herself more fully than she apparently chose to do in her statutory declaration.
Particular (xi) does not disclose any irrationality or unreasonableness.
Particular (xii)
Particular (xii) is directed to paragraph 85 of the Tribunal’s reasons. The particular claims the applicant’s path to marriage and parenthood was not inherently incompatible with his account of his sexual orientation, thus implying the Tribunal found that the applicant’s marriage and fathering of three children was incompatible with his account of his sexual orientation. The Tribunal made no such finding. In paragraph 84 of its reasons the Tribunal concluded that the applicant’s marriage and fathering of children viewed with his inability to explain his internal conflict between religion and his (homo) sexuality made perfect sense if the applicant is and always has been heterosexual. This in effect is a finding that the best explanation for the applicant’s marriage and fathering of three children and his inability to explain conflict between religion and his (homo) sexuality is the applicant’s being, and always having been, heterosexual. I am not satisfied it was not reasonably open to the Tribunal to so find.
Particular (xii) does not disclose any irrationality or unreasonableness.
Conclusion
The Tribunal’s conclusion that the applicant came to Australia and applied for protection on the false basis of being gay was reasonably open to the Tribunal make for the reasons it gave. The Tribunal did not rely on any unreasonable explicit or implicit generalisation based on its common experience of life; the Tribunal did not fail to apply such generalisations in light of the applicant’s circumstances as revealed by the evidence that was before it; and the Tribunal did not act unreasonably to the extent it applied the generalisations in arriving at the findings it made, and in the characterisation it gave to evidence that was before it. The ground on which the applicant relies, therefore, fails.
DISPOSITION AND COSTS
I propose to order that the application be dismissed.
Counsel agreed that costs should follow the event. Counsel for the Minister submitted that if the Minister were to succeed the Minister’s costs should be set in the amount of $5,400. I also propose to order, therefore, that the applicant pay the first respondent’s costs set in the amount of $5,400.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 19 April 2021
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