MZADE v Minister for Immigration

[2015] FCCA 22

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZADE v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 22

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – whether applicant has two home regions – whether real chance of harm to applicant – whether consideration of risk of harm by reason of membership of particular social groups – whether Tribunals findings unreasonable/illogical.

Legislation:

Migration Act 1958 (Cth)

Htun v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16
Minister for Immigration and Citizenship v Li [2013] HCA 18
NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SZQEN v Minister for Immigration and Citizenship [2012] FCA 387
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Applicant: MZADE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 729 of 2014

Judgment of: Judge McGuire

Hearing date: 9 December 2014

Date of Last Submission: 9 December 2014

Delivered at: Melbourne

Delivered on: 5 February 2015

REPRESENTATION

Counsel for the Applicant: Ms Karapangiotidis

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitors

ORDERS

1. The amended application filed 14 November 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 729 of 2014

MZADE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made 25 March 2014 affirming a decision of the Minister's delegate not to grant him a protection (class XA) visa.  The applicant relies on an amended application filed 14 November 2014, setting out five grounds of complaint and seeking an order to quash the Tribunal's decision, an injunctive order and the issue of prerogative writs.

2. The applicant is from Nigeria.  He arrived in Australia on 31 December 2010 on a short stay business visa. On 18 March 2011 he lodged an application for a protection visa. The Minister's delegate refused that application on 22 March 2012. On 25 March 2014 a second constituted Tribunal affirmed the delegate's decision not to grant the visa.

The Application

1. The amended application sets out the following five grounds:

   (1)The second respondent ("the Tribunal") erred in its consideration of the applicant's home region in its failure to turn its mind to or assess whether the applicant had more than one home region/area.

   (2)The Tribunal made a finding without evidence, namely, that the relevant country information did not support a finding that Muslim terrorists or Muslim groups have "the capacity to strike in a manner that would create a real chance of harm in the south of Nigeria".

   (3)The Tribunal erred in its assessment of whether the applicant faced a real chance of persecution in the south by confining itself to the question of whether extremists had "the capacity to strike" in the area and/or by failing to evaluate the country information before it.

   (4)The Tribunal failed to consider an integer of the applicant's claim, namely, whether he was at risk of harm by reason of his membership of a particular social group, namely, "Christian converts" and/or because he was the son of an Imam; and

   (5)The Tribunal made an implausibility finding that was unreasonable and/or illogical and that informed its conclusion as to the applicant's sexuality.

2. The applicant was represented by counsel at the hearing before this Court.  Grounds (2) and (3) were effectively argued together.  The applicant had raised a number of claims before the Tribunal around him having a well-founded fear of persecution if returned to Nigeria.  The bases of those claims were firstly, that he is bisexual and, secondly, because of his conversion from Islam to Christianity.  He particularised a number of factual assertions in support of these broader claims.  The first respondent opposes the application and argues each of the grounds.

The Tribunal's Findings

1. The Tribunal accepted that the applicant was a convert to Christianity from Islam (CB789 [24]). 

2. The Tribunal made a general finding of credit against the applicant after considering evidence as to his mental health difficulties including an inability to remember certain details or exact dates but observing the applicant to be lucid and to give coherent evidence at the hearing [33].

3. The Tribunal found the applicant's home area/region to be Ibadan in southern Nigeria as opposed to the applicant's assertion of it being Jos in central Nigeria [42].

4. The Tribunal found the applicant to be heterosexual and to have invented the claim to be homosexual or bisexual [75]. That paragraph recites the following:

   Taking into account the totality of the evidence, the Tribunal finds that the applicant is heterosexual and that he has invented the claim to be homosexual or bisexual.  The Tribunal finds that he has never had a same-sex relationship; that he is not interested in a same-sex relationship; that he never "disclosed" to anybody in Nigeria or to the Christian congregation or his Nigerian friends and acquaintances in Australia that he is homosexual or bisexual.  In Nigeria, the applicant was never threatened by anybody including Afa Ganiyu, Muslims in Ibadan, a Muslim boy in Jos or anybody else.

5. The Tribunal found that Christian converts from Islam could form a Particular Social Group (PSG) [96] where it states:

   While no country information presented in support of the claim that a convert would be treated any differently from a person who was born a Christian, the Tribunal accepts that apostasy is generally considered to be punishable by death according to more conservative Muslims.  The Tribunal gives the applicant the benefit of the doubt and proceeds on the basis that such a particular social group does exist in Nigeria.

6. The Tribunal did not accept a number of the applicant's contentions including:

   (i)that the applicant was attacked in Ibadan in August 2010;

   (ii)that the applicant was threatened by a group of Muslim boys in February 2010;

   (iii)that the applicant's father was deceased and that his mother, brothers and aunt are missing or that the applicant's friends, Kamoru and Segan, had been killed;

   (iv)that Muslim terrorists had the capacity to strike in a manner that would create a real chance of harm in the south of Nigeria if the applicant were to return there now or in the reasonably foreseeable future.

7. The Tribunal's ultimate conclusion appears [at 118-120] as follows:

   On the available information, the Tribunal finds that the applicant can return to live in the south of Nigeria as a Christian where he does not have a well-founded fear of persecution now or in the reasonably foreseeable future.  The Tribunal finds that the risk of harm is remote in the south of the country where Ibadan is located and, therefore, he does not have a well-founded fear of persecution in that part of the country.

   At the hearing, the Tribunal discussed the issue of relocation and, in that context, discussed the applicant's mental health as a relevant consideration relevant to the question of reasonableness of relocation.  As the Tribunal has concluded that the applicant's home area is not Jos, and that he does not face harm for reasons of his sexuality or religion in Oyo State, the question of relocation does not arise.

   The Tribunal has considered the applicant's claims, both individually and cumulatively, and finds that the applicant does not have a well‑founded fear of persecution for reasons of his membership of a particular social group (homosexuals or bisexuals or converts from Islam to Christianity or persons with a mental illness), religion or any other Convention reason if he were to return to Ibadan now or in the reasonably foreseeable future.

Ground 1

1. This ground argues that the Tribunal erred in its consideration of the applicant's home region in finding it, singularly, to be Ibadan where it failed to consider or assess whether this applicant had more than one home region.  This argument centres on the Tribunal's finding at [58]:

   In the evidence before it, the Tribunal finds that although the applicant had a connection to Jos, he had settled down and was residing in Ibadan before he left Nigeria.  Therefore, the Tribunal has considered his protection claims against Ibadan as his home area.

2. The applicant says that the Tribunal adopted a too restrictive interpretation of "home region" where there was evidence before it of a historical nature suggestive of the applicant having lived in Jos; having connections to Jos; and that such a less restrictive assessment of that evidence should have led to the conclusion of the applicant having more than one home region.  The applicant's counsel referred to authority supporting the proposition that "home region" should not be given a narrow or restrictive meaning.  In SZQEN v Minister for Immigration and Citizenship [2012] FCA 387 at [38],Yates J says:

   I propose to apply the statement of the principle in Randhawa by Black CJ (at 440-441) which plainly proceeds on the basis that the relocation principle concerns relocation from a claimant's home region to another place in the claimant's country of nationality that is not the claimant's home region.  This position is supported by the United Kingdom authorities to which I have referred.  In proceeding on this basis, I do not think that the reference in the case to "home region" or "home area" (or similar expressions) is to be given a narrow or restrictive meaning to refer, for example, only to the place where the claimant happens to be living at the time of the feared persecution, or that a "home region" or "home area" is necessarily limited to one location if similar and substantial ties exist at another location that would also appropriately characterise that location as a "home region" or "home area" of the claimant.  Whether such ties exist and whether a particular location can be appropriately characterised as a "home region" or "home area" are matters of fact.

3. The applicant says that the Tribunal asked itself the wrong question in applying a restrictive test and, hence, fell into jurisdictional error.  The applicant's counsel points to evidence from the applicant himself supporting a dual home region argument including:

   (1)The applicant's father lived in Jos;

   (2)The applicant's claim that he had spent his whole life in Jos, went to school in Jos, worked in Jos, and had family connections to Jos.

4. The applicant says, simply, that the Tribunal failed to engage in a relevant consideration on the evidence being as to whether the applicant may have had more than one home region.

Consideration of Ground 1

1. The question for the Tribunal is one of fact where is it that the applicant will return if required and for the purposes of assessing his claims?  The Tribunal had before it the applicant's assertions and evidence in respect of his connections with Jos.  The Tribunal clearly entered into a consideration of that evidence as shown in its reasons at [34-58] under the "Home Area".  It is clear that the Tribunal assessed all of the material before it including evidence in support of the applicant's assertions as to Jos being his home region.

2. The Tribunal, at [46] and following, expressly deals with the difficulties in respect of the applicant's assertions as to Jos being his home region.  The Tribunal accepted that the applicant travelled from Jos to Lagos on the day before he left for Australia.  The Tribunal accepted that the applicant's father lives in Jos.  The Tribunal considered evidence as to the applicant's current contact in Jos.  The Tribunal attempted unsuccessfully to telephone one such contact.  The Tribunal considered the materials in the applicant's statutory declaration of 11 February 2014.  The Tribunal considered the applicant's evidence about the mosque where his father was allegedly an Imam and found such evidence to be contradictory.

3. The real issue is as to whether the Court engaged and addressed the material that might lead to a conclusion of Jos being the home region or there being a duality of home regions.  This Tribunal did, in fact, find that the applicant had a connection to Jos but that he had settled and was residing in Ibadan.  The issue was engaged and considered, and the finding of fact was one open to the Tribunal.  I can find no jurisdictional error.

Ground 2

1. The applicant says that the Tribunal made a finding without evidence being that Muslim terrorist groups did not have the capacity to strike in a manner that would create a real chance of harm in south Nigeria.  The applicant says that there is no evidentiary basis to this finding of fact.  He says that it is a critical finding of fact and, therefore, causes the Tribunal to fall into jurisdictional error.

2. [117-118] of the Tribunal's reasons are relevant.  They state:

   The country information available to the Tribunal, including the country information referred to by the applicant's representatives, does not support the proposition that Muslim terrorists or Muslim groups have the capacity to strike in a manner that would create a real chance of harm in the south of Nigeria if the applicant were to return now or in the reasonably foreseeable future.

   On the available information, the Tribunal finds that the applicant can return to live in the south of Nigeria as a Christian where he does not have a well-founded fear of persecution now or in the reasonably foreseeable future.  The Tribunal finds that the risk of harm is remote in the south of the country where Ibadan is located and, therefore, he does not have a well-founded fear of persecution in that part of the country.

3. The applicant argues that the conclusion/findings in paragraphs 117 and 188 are positive findings unsupported by any evidentiary basis.  The applicant referred to a deal of country information before the Tribunal supporting a submission that:

   The persecution of which the applicant complains is widespread and systematic throughout Nigeria.  Up-to-date information indicates that violence amounting to persecution is still being perpetrated against Christians by Boko Haram and other groups. 

4. Various submissions on behalf of the applicant each raise and refer to country information in support of the proposition of Muslim extremists operating in or moving to the south of Nigeria.

5. In light of the evidence suggestive of Muslim terrorism moving south, the applicant says there is no evidentiary basis to support the finding at [117]:

   ...does not support the proposition that Muslim terrorists or Muslim groups have the capacity to strike in the manner...

6. The applicant refers the Court to a decision of the Full Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19]:

   The argument, if it were made out, would be sufficient to establish that the Tribunal had made a "jurisdictional error" so as to found jurisdiction in this Court to intervene.  If the Tribunal makes a finding, and that finding is a critical step in its ultimate conclusion, and there is no evidence to support that finding, then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was "Wednesbury" unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 ("S20") at 62, 67, 76, 90-91.

7. In summary, therefore, the applicant argues that the mention in [117] “does not support the proposition that Muslim terrorists or Muslim groups have the capacity to strike in a manner that...”is unsupported by any evidence before the Tribunal, and certainly not referenced in its reasons.

Consideration of Ground 2

1. Counsel for the respondent argues that a close reading of [117] does not disclose a positive finding by the Tribunal but, rather, a rejection of the applicant's claim.  A rejection, counsel argues, is a non‑acceptance of the evidence whereas a "finding of fact" requires evidentiary support.  Counsel relies on the wording used by the Tribunal in [117], "does not support the proposition".  Further, the proposition must itself be read in full and not limited to simply "the capacity to strike in a manner". 

2. The respondent argues that the applicant is taking simply the first phrase of the sentence in its argument as to lack of evidentiary support whereas it is proper to consider the sentence in full including:

   ...in a manner that would create a real chance of harm in the south of Nigeria if the applicant were to return now or in the reasonably foreseeable future.

3. Counsel argues that the Tribunal was not simply or only dealing with the capacity of extremists to strike in the south but whether there was a capacity to strike in a manner that amounted to a risk of serious harm.  In his oral submissions, counsel raised the factual possibilities where there could be a strike by extremists in the south but not such as to create a real chance of harm or that the risk of harm be remote.

4. On consideration, I accept this argument of the respondent, that although Muslim extremist groups have the potential to make attacks in the south, the country information provided left open a finding that the manner of strikes in the south did not amount to a real chance of serious harm.  I agree that the phrase "does not support the proposition" appearing in [117] is a rejection of the applicant's assertion rather than a finding of fact.  That factual finding appears at [118] and was clearly open to the Tribunal on the evidence before it including the country information.

Ground 3

1. The applicant argues this ground in overlapping argument with ground 2.  It also complains as to [117] of the Tribunal's reasons and argues that the Tribunal fell into error in its "finding" in [117] by confining itself to the question whether the extremists had "the capacity to strike" and/or by failing to evaluate the country information.  The distinction with the argument as to ground (2) is that the former argues that there is no evidentiary foundation for the finding in [117] whereas the latter relates to whether the Tribunal had actually undertaken the task required of it.

2. Counsel for the applicant refers the Court to the decision of the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [32], [34], [38-39] where their Honours said:

   The Tribunal's task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it...

   Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

   The task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances...

   The Tribunal's reasons do not disclose that it understood and undertook this task.  Rather, the reasons - including what is expressed and what is not - disclose the Tribunal did not assess, in any real or active way, what the situation would be ... nor do the reasons disclose any consciousness that what the visa applicant was articulating (through his own statements and the post-hearing submission of his adviser)...

1. In the matter now before me, the applicant says that there is error in the Tribunal because it has not engaged and evaluated the evidence before it by way of country information. 

Consideration of Ground 3

1. It is well established that the Tribunal is to engage and consider all of the claims of an applicant including claims explicitly made by the applicant or which are apparent on the material before the Tribunal.  In Htun v Minister for Immigration and Multicultural Affairs [2001] 194 ALR 244 at [42], the Full Court stated:

   The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant.  To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ...  It is to be distinguished from errant fact finding.  The nature and extent of the task of the Tribunal revealed by the terms of the Act ... make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.

2. And in NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263, at [55], the Full Court said simply:

   Where the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts", that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   Quite simply, a Tribunal is required to deal with the case raised on the material or argued by the applicant.

3. The applicant says that the Tribunal failed to consider whether the applicant faced a real chance of persecution in the south of Nigeria given the evidence that extremist groups were moving towards the south.  However, a reading of [117] suggests otherwise.  There, the Tribunal states:

   The country information submitted by the applicant referred to the problems the applicant would face in Jos, the north and the middle belt.  The Tribunal notes that this is consistent with the country information, and that there have been reports as recently as 26 February 2014 of a brutal attack by Boko Haram on a boarding school in Yobe State in the northeast of Nigeria in which 59 children were killed.  Some of the information submitted by the applicant's representatives refers to the fear that militant groups and, in particular, Boko Haram are threatening to move further south towards Lagos and Ibadan.

4. It is clear that the Tribunal assessed the country information provided by the applicant to the effect that Boko Haram had the potential to perpetrate violence and had issued threats of attack in the south.  It is the engaging and assessment of the evidence that is important to this argument.  On my reading of the materials in the court book and [117], this is precisely what the Tribunal did.  It then made a finding open to it on the totality of that material being a finding "that the risk of harm is remote in the south of the country", following on from its statement that "Country information ... does not support the proposition that Muslim terrorists or Muslim groups have the capacity to strike in a manner that would create a real chance of harm in the south..."

5. I am satisfied that the Tribunal engaged and considered the country information and then proceeded to make a finding of fact open to it on that evidence.  Consequently, I find no merit in ground (3) of the application.

Ground 4

1. The applicant claims that the Tribunal failed to consider integers of the applicant's claim, namely, that he is at risk by reason of being (i) a Christian convert or (ii) because he is the son of an Imam.  On the final page of submissions for the applicant made 27 October 2011 [CB228], there is the following:

   The applicant's profile as a bisexual male, and the son of an Imam, who has converted to Christianity...

2. Further, at [CB348], and as part of a submission for the applicant, made 25 September 2012, is found the statement:

   We further note that, as country information above indicates, Christians are at risk of attack by extremist groups such as Boko Haram throughout Nigeria.  We note that it is relevant to consider the applicant and his family have been previously attacked, that the applicant, as a convert, is someone that extremists such as Boko Haram would particularly wish to target as conversion is not allowed under Sharia law.

3. The Tribunal accepted that the applicant converted to Christianity from Islam [91] and proceeded on the basis of there being such a Particular Social Group [96]. The Tribunal accepted that the applicant remains a Christian [97]. The applicant says that the error in the Tribunal is in not assessing whether the applicant is at a heightened risk of harm because of his membership of this PSG and refers, particularly, to [120] of the Tribunal's reasons as follows:

   The Tribunal has considered the applicant's claims, both individually and cumulatively, and finds that the applicant does not have a well‑founded fear of persecution for reasons of his membership of a particular social group (homosexuals or bisexuals) or converts from Islam to Christianity or persons with a mental illness, religion or any other Convention reason if he were to return to Ibadan now.

4. The applicant says that the conclusion above does not arise from any demonstrated preceding consideration of the applicant's membership of the PSG.  Specifically, paragraphs [117] and [118] which bring together the Tribunal's considerations and findings do not mention his membership of this PSG.  Similarly, paragraphs [56] and [57] refer to the applicant's father in the context of being an Imam.  There is no rejection of the assertion of the father being an Imam.  In fact, there is no finding one way or the other.

5. The applicant says that the Tribunal failed to consider the applicant's quite discrete claims of being at risk by reason of being a Christian convert and the son of an Imam and, therefore, failed to consider an integer of the applicant's claims and, hence, fell into jurisdictional error.  The applicant's counsel refers me to a decision of WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45]:

   In conducting its review, the Tribunal must have regard to the criteria for the grant of a protection visa and, in particular, the criterion that the applicant for a visa is...

   The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well‑founded fear of persecution for one of the Convention reasons.  If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision.  This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.

6. The applicant, therefore, complains that a contention is articulated before the Tribunal but not considered and dealt with by it, and also not rendered irrelevant or subsumed by other findings of the Tribunal.

Consideration of Ground 4

1. The Tribunal accepted that the PSG of Christian converts from Islam existed and that apostasy is generally considered to be punishable by death according to more conservative Muslims [96]. The preface to this acceptance, however, is that "no country information" was presented in support of the claim that a convert would be treated any differently from a person born a Christian.

2. The respondent says that there is no more than a mere assertion by the applicant's representative in written submissions but that this does not equate to a "clearly articulated claim based on established facts" which is the basis of the Tribunal's responsibility to engage and consider the applicant's claim as provided in NABE. This complaint can be easily dealt with by consideration of the Tribunal's own reasons at [96] where it begins:

   While no country information presented in support of the claim that a convert would be treated any differently from a person who was born a Christian...

3. The applicant, in mounting an argument before this Court, does not take the Court to any evidence that was before the Tribunal and not considered, as distinct from the mere assertions made by the applicant’s representative in submissions.  The authorities say that there must be a "clearly articulated claim relying on established facts".  In this matter, and despite the findings of the Tribunal, there is simply mere assertion and no clearly articulated claim based on evidence or established facts.  The Tribunal is not obliged to consider unarticulated claims or bare assertions.  It is for the Tribunal to engage and consider evidence.  As such, the argument raised in ground (4) of the amended application must fail.

Ground 5

1. This ground relates to the applicant's claim to be bisexual and the rejection of that claim by the Tribunal.  At [75] the Tribunal sets out its findings as follows:

   Taking into account the totality of the evidence, the Tribunal finds that the applicant is heterosexual and that he has invented the claim to be homosexual or bisexual.  The Tribunal finds that he has never had a same‑sex relationship; that he is not interested in a same-sex relationship; that he never "disclosed" to anyone in Nigeria or to the Christian congregation or his Nigerian friends and acquaintances in Australia that he is homosexual or bisexual.  In Nigeria, the applicant was never threatened by anyone including Afa Ganiyu, Muslims in Ibadan, a Muslim boy in Jos or anybody else.

2. And at [78]:

   The Tribunal does not accept that anybody in Nigeria would impute the applicant with being homosexual or bisexual.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of his sexuality if he were to return to Nigeria now or in the reasonably foreseeable future.

3. The applicant says that such a finding is unreasonable, without sound basis or without intelligible justification.  The applicant argues that the conclusion/finding at [75] is built upon a false premise and, thereby, leads the Tribunal into jurisdictional error. 

4. The applicant claimed before the Tribunal to be bisexual.  In his statutory declarations, the applicant claimed to have had a same-sex relationship from 1998-2002, and another from 2006-2010.  After coming to Australia, he had a relationship with a woman, Jessica, for about 18 months.

5. The Tribunal's reasons at [70-73] are critical to the applicant's arguments.  They are:

   The Tribunal found much of the applicant's other oral evidence in relation to his sexuality unpersuasive.  When asked why he had not had any same-sex relationships in Australia, he said: [point 01] [49]:

   I haven't done anything...  I have been through a lot since coming here...  I just can't hold a relationship...  I don't think I'm ready now and I don't feel safe.

   In his statutory declaration of 25 July 2012, the applicant said that around March 2011, he started using a dating website to look for a partner and that was how he met a woman, Jessica, with whom he had a relationship.  Before meeting Jessica, he was chatting to both men and women online because he was interested in meeting someone of either gender.  After getting together with Jessica, he was still having urges to have sex with a man, but because of his love for her, he stayed faithful to her.

   The Tribunal notes that at the same time he broke up with Jessica in December 2012, the applicant would have been in Australia for almost 24 months.  By that time, he would have known that homosexuality is considered much more acceptable in Australia than in Nigeria and, therefore, there is no obvious reason why, in early 2014, he would be more reluctant to look for a homosexual relationship than in March in 2011 when he had a dating profile.  Contrary to his claim at the hearing that he "can't hold a relationship", he had a relationship with Jessica that started a few months after he arrived in Australia and lasted some 18 months.

   Further, the applicant has not had an easy time in Australia, and the Tribunal acknowledges the validity of the statement that he has "gone through a lot since coming here".  Nevertheless, in relative terms, in Nigeria he was allegedly kidnapped and imprisoned, he was very nearly killed, his father was killed, and his other close relatives are missing.  The Tribunal finds it implausible that only about three months after he escaped for his life in March 2011, the applicant would have felt emotionally ready for a relationship with either a man or a woman and he would have been chatting to men online, and that from June 2011 he was capable of having an 18 month relationship with a woman, whereas 24 months after he came to Australia in early 2014, he would have felt "not ready" for a relationship or "not safe".

6. The applicant's counsel concedes that paragraphs [70-73] are just part of the totality of the evidence considered by the Tribunal under the heading "Sexuality" which proceeds from [59], and considered by the Tribunal in rejecting or finding as implausible the applicant's claim to be bisexual.  Nevertheless, the applicant argues that [71-73] is a critical part of the process of consideration by the Tribunal in arriving at its conclusion but that it is illogical in the premise of an assumption that the applicant is required to have had a same-sex relationship in Australia or that the conclusion is based on the premise or a chronology that does not have relevant or probative value.

Consideration of Ground 5

1. Reasonableness and illogicality of administrative decision-making was considered by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 with reference to Lord Greene's "Wednesbury standard". At [68], Hayne, Kiefel and Bell JJ comment:

   However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point.  The legal standard of unreasonableness should not be considered as limited to what is, in effect, an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury.  This aspect of his Lordship's judgment may more sensibly be taken to recognise that an inference of unreasonableness may, in some cases, be objectively drawn even where a particular error in reasoning cannot be identified.  This is recognised by the principles governing the review of a judicial discretion which, it may be observed, were settled in Australia by House v The King.

1. In the recent decision of the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, there is a useful summary of the notion of reasonableness from [44] where their Honours, at [48], state:

   As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be factor dependent.  That is not to diminish the importance of the supervising Court maintaining an approach which does not involve the substitution of its own judgment for that of the decision‑maker.  Rather, it is to recognise that any analysis which involves concepts such as "intelligible justification" must involve scrutiny of the factual circumstances in which the power comes to be exercised.

2. The Tribunal here reached its conclusion at [75]. It relevantly begins, "Taking into account the totality of the evidence..." The applicant impugns paragraphs [70-73] of the Tribunal's reasons. Here, the Tribunal finds much of the applicant's evidence in relation to his sexuality to be unpersuasive [70]. It determines implausibility on a comparison with the applicant's oral evidence with his previous statutory declarations [70 and 71]. The Tribunal questions the applicant claiming before it, "I don't think I am ready now" and "I don't feel safe" with his readiness to engage in website chats with men and women in March 2011 and to enter a relationship with a woman soon thereafter [72].

3. The Tribunal is, essentially, considering the credit of the applicant in these matters and in considering his evidence before it that he "can't hold a relationship" when he had just enjoyed a relationship of some 18 months [72].

4. This Tribunal had before it apparent inconsistency and contrary evidence from the applicant himself specifically as to why he is not currently inclined to a homosexual relationship.  It is for the Tribunal to make determinations of credit and fact.  Significantly, what is criticised here is the process of reasoning of the Tribunal as being allegedly illogical or unreasonable.  In the High Court in Minister for Immigration and Citizenship v SZMDS & Anor [2010] HCA 16, Crennan and Bell J, at [130-131], said:

   In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to judicial jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one which no rational or logical decision-maker could arrive at on the same evidence...

   What was involved here was an issue of jurisdictional fact upon which different minds might read different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning, but the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt a different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning, and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

5. I accept that the Tribunal here was dealing with the applicant's evidence in respect of a jurisdictional fact.  This was a very basis for the applicant's claim for protection.  It is, however, an intellectual process of the Tribunal which is directly challenged.  I must consider whether that process was unreasonable or illogical and be careful not to substitute my own reasoning in respect of the factual platform before it.

6. The applicant, effectively, argues unreasonableness or illogicality in importing to the Tribunal a premise of the applicant seemingly having to have entered into a homosexual relationship in order to establish his homosexuality. This is not the reasoning of the Tribunal. Rather, it raised and addressed apparent inconsistencies and contrary evidence. The applicant was challenged as to those apparent inconsistencies [70]. The applicant was challenged as to why he had not entered into a homosexual relationship in Australia. His response was to the effect that he wasn't ready and didn't feel safe.

7. The Tribunal compared this evidence to the historical facts given by the applicant himself.  It should be remembered that the Tribunal was conducting an assessment of the applicant's credit and, in doing so, was comparing and contrasting the various pieces of evidence.  The logic of the Tribunal's process is not confined simply to rejecting his homosexuality on the basis of the applicant not having entered into a homosexual relationship in Australia.  The evidence and the inconsistencies are far broader, leading this Tribunal to reasonable and logical conclusions based on its assessment of all of the evidence.  I do not find ground (5) of the amended application made out.

Conclusion

1. Given that I find no merit in any of the five grounds of complaint in the amended application, the application will be dismissed with an order for costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 5 February 2015