SZIIF v Minister for Immigration - [2008] FMCA 203

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIF v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 203

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZIIF”.

Migration Act 1958 (Cth), ss.91X, 422B, 424A

Abebe v Commonwealth of Australia [1999] HCA 14
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62
SZIWJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1706
Whisprun Pty Ltd v Dixon [2003] HCA 48

Applicant:

SZIIF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 240 of 2007

Judgment of:

Lloyd-Jones FM

Hearing date:

11 September 2007

Delivered at:

Sydney

Delivered on:

21 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr JR Young

Solicitors for the Applicant:

Simon Diab & Associates

Counsel for the Respondents:

Mr JAC Potts

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the first respondent be amended to read “Minister for Immigration & Citizenship”.
The application filed on 25 January 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 240 of 2007

SZIIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

The male applicant was born in Zbaradge, Ukraine in 1971. In his protection visa application, the applicant claims to have been gay since he reached sexual maturity and that he was assaulted, mistreated and victimized because of this.
The applicant asserts that his father, mother and two brothers have ostracised him. Further he claims mistreatment during his military service (between 1989 and 1991) and while working in a factory and a hair saloon. In 1999, he became a gay activist and was persecuted by nationalists thereafter.
He claims that on a business trip to Germany, he was targeted by neo-Nazis who were against homosexuals. When he returned to the Ukraine, he decided to seek protection in Australia.
The applicant arrived in Australia on 26 October 2001 and applied for a Protection (Class XA) visa on 3 December 2001. A delegate of the first respondent refused to grant the visa on 14 October 2002 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed the delegate’s decision but this was quashed by the Federal Magistrates Court on 6 October 2005. A second reconstituted Tribunal again affirmed the decision of the delegate of the first respondent, and this decision was again set aside by the Federal Magistrates Court on 5 May 2006. On 19 October 2006, the third Tribunal affirmed the delegate’s decision not to grant the protection visa (reference 060444209), which is the decision that is the subject of these proceedings.
The original application for judicial review in this Court contains two grounds. Approximately, one week prior to the final hearing, Mr Young, for the applicant, sent a copy of the amended application with two new grounds to the Court and the first respondent. At the commencement of the hearing, Mr Young sought leave to file in Court the amended application with proposed grounds three and four. If leave was granted, grounds three and four would be the grounds he would seek to raise in this review. Mr Potts, for the first respondent, did not oppose the amended application. In the circumstances, leave was granted.

Consideration

Ground one and two

1. The Refugee Review Tribunal (“the Tribunal”) made a jurisdictional error by failing to provide the applicant with an opportunity to comment on third party information which was used to adversely make the decision thereby breached s.424(a) of the Migration Act.
Particulars
(a) The Applicant claimed that he was persecuted in Ukraine by his employer, Ukranian authorities and wider community because of his sexual preference. The Tribunal rejected the applicant’s claims relying on the third party information such as Amnesty International 2004 Ukraine Report, Human Rights Watch 2004, US State Department Report 2004, stating that Ukraine legalised homosexuality in 1991. This observation breaches Australia’s obligation under Refugee Convention thereby made an error of law by not considering the nature and scope o term persecution.
2. The Tribunal made a jurisdictional error by failing to consider an essential claim made by the Applicant and misdirecting itself.
Particulars
(a) The Tribunal’s assessment of applicant’s credibility is guided by the biased and pre-empted approach, in that, its findings were solely based on the credibility issue, which clearly flags that the Tribunal failed to properly examine his claims and misdirected itself to the wrong issue by not considering the actual situation of homosexuals in Ukraine. The Tribunal, instead, considered and put entire weight on the authenticity of applicant’s claims and assumed to be fabricated. The Tribunal only gave weight on some inconsistent information provided by the applicant twice to the previous Tribunal hearings and once to the Department but failed to comprehend the previous findings of the Tribunal itself. If same principle applies, then three decisions of the Tribunal are totally inconsistent.
(b) The Tribunal should have examined whether the applicant’s fear was genuine rather than making comments on credibility of the applicant’s claim which itself reflects that the Tribunal was influenced by the wrong perception. The Tribunal was obliged to consider whether the persecution suffered was influenced by the applicant’s membership with homosexuals and thereby made an error of law.

These grounds were not pressed.

Ground three

3. The Second Respondent made jurisdictional error by failing to have regard to the relevant considerations in relation to any assessment of credibility to the applicant:
a) That two previous Tribunals had made jurisdictional error leading to the quashing of the decisions of those Tribunals.
b) As a result of (a), the matter had been significantly delayed and the effect of such a delay was adverse to the applicant through no fault of the applicant.
c) As a result of (a), the Applicant had been required to give evidence before 3 hearings of the Second Respondent as well as at a hearing required by the delegate.

Mr Young submits that the High Court has, on a number of occasions, warned that applicants may embroider a claim or even tell falsehoods, but this does not itself mean that all aspects of the claim are false: Abebe v Commonwealth [1999] HCA 14 at [191] per Gummow and Hayne JJ; Whisprun Pty Ltd v Dixon [2003] HCA 48 at [119]-[121] per Kirby J; Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 at [32]-[34] per Gleeson CJ, McHugh, Gummow and Hayne JJ; NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [65] per Kirby J.
Mr Potts referred to Abebe at [191] per Gummow and Hayne JJ:
[191] … the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself. But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.
Mr Potts submits that their Honours recognised that the significance of any “embroidery” by an applicant of his/her claims was a matter for the Tribunal in assessing the merits of those claims. I am satisfied that the Tribunal’s adverse credibility finding and its consequent rejection of the applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 at [67] per McHugh J. The applicant was unsuccessful because of the view the Tribunal took of the facts, and, in particular, its finding that he was not credible.
Mr Young submits that ground three also raises an important issue relating to the conduct of a review when there has been successive jurisdictional errors made by Tribunals, with long delays between the initial lodging of a visa application and the final decision by the Tribunal. The applicant arrived in Australia on 26 October 2001 and applied for a protection visa on 3 December 2001. The Tribunal decision was signed on 19 October 2006. The delay between the initial protection visa application and the handing down of the decision was almost five years.
The chronology of events is as follows:
i)Delegate’s refusal of protection visa – 14 October 2002
ii)Application to Tribunal for review of the delegate’s decision – 11 November 2002
iii)First Tribunal confirmed the delegate’s decision – 2 October 2003
iv)Application to Federal Magistrates Court for judicial review – 29 October 2003
v)Federal Magistrate Driver makes consent orders quashing the decision and remitting the matter to the Tribunal – 6 October 2007
vi)Second Tribunal affirms the decision of the delegate – 13 December 2005
vii)Application to Federal Magistrates Court for judicial review – 10 February 2006
viii)Federal Magistrate Emmett makes consent orders quashing the decision and remitting matter to the Tribunal
ix)Tribunal holds hearing – 17 July 2006 – tribunal sends s.424A letter – 21 July 2006
x)Applicant responds to s.424A letter – 9 August 2006
xi)Third tribunal affirms the decision of the delegate – 19 October 2006
xii)Third Tribunal hands down decision – 7 November 2006
Mr Young contends that the delay has two aspects:
a)The delay in terms of chronological time (5 years) and the effect that has on consistency.
b)As a result of the jurisdictional errors made by the earlier Tribunals, the applicant was required to give an account of his persecution on five separate occasions. The third Tribunal’s principal finding related to the applicant’s credibility and the difference between what was said at different times to either the delegate or one of the other Tribunals. The third Tribunal stated that it was not satisfied that the applicant was a witness of truth and that he had created his claims in order to obtain the visa (CB 268).
Mr Young in his written submissions lists six matters identified by the third Tribunal as findings that the applicant deliberately gave false evidence. These were:
i)A discrepancy between the Departmental interview where he said he had been beaten up once and him telling the third Tribunal he had been beaten up twice.
ii)Telling the third Tribunal he required medical treatment on the first occasion and hospitalisation on the second occasion. However, the applicant did not give this evidence to either the first or second Tribunals at their respective hearings.
iii)He provided different descriptions of harassment suffered at Hotel Ternopol.
iv)When asked by the third Tribunal when, apart from the two instances in 2001, any other incidents had occurred, he replied “No”. However, he had previously given evidence in his visa application of being mocked and pushed by gay bashers.
v)He told the Department he went to Kiev in 2001 but told the first Tribunal he did not go to Kiev.
vi)The Tribunal did not accept as plausible that the hotel would not have taken steps to curb harassment of the applicant by its employees.
Both counsel referred to the decision in NAIS. Mr Young submits that NAIS lays out the principles of delay in relation to administrative decision making which also go to the way in which the Tribunal must take into account and allow for the effect of delay. Mr Young acknowledges that there is a very significant difference between NAIS and this matter in that there was no jurisdictional error or remittal of the matter to the Tribunal in NAIS.
Mr Young submits that this Tribunal had, without apparent justification or explanation, taken a very long time in reaching its decision. In relation to the overall relevance of delay, the critical issue is not whether there was an extraordinary delay but rather the effect it had on the applicant and whether the applicant was personally at fault in relation to it.
Mr Young acknowledges that while the resolution of NAIS depended on the finding of procedural fairness, that decision also states that delay in certain situations has to be taken into account in relation to the decision-making process. Mr Young argues that there are credibility findings in this matter based on alleged inconsistencies between what the applicant told the Department at an interview and what he allegedly said at the Tribunal hearings. With the multiplicity of hearings and times when the applicant had to give evidence, the Tribunal must specifically address the question of time and how that affected its assessment of his evidence.
Mr Potts argues that NAIS does not lay down an overarching principle of law on delay and that it is always a relevant consideration for a Tribunal undertaking its function. Mr Potts concedes that if there is a finding of inconsistency between different versions of events, one would take into account the period of time which may have elapsed between the giving of those accounts. Any enquiry in this case should adopt this approach. He also contends that the Tribunal was aware that these different versions were given over a long period of time, but was not persuaded that that was sufficient explanation by the applicant for the discrepancies.
Mr Potts submits that NAIS was a case decided prior to the introduction of s.422B of the Migration Act 1958 (Cth) (“the Act”). That section came into operation on 4 July 2002 and applied to applications filed thereafter. The first Tribunal application in this case was filed on 11 November 2002. Mr Potts argues that NAIS does not establish that delay is a free standing principle which is relevant and essential in matters with these circumstances.
In support of this argument, Mr Potts referred to NAIS at [5]-[7] per Gleeson CJ:
[5] Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare…
[6] The context in which delay occurs will affect any legal consequences that may flow…Here the focus was upon alleged jurisdictional error, specifically in the form of denial of procedural fairness, in administrative decision-making.
[7] In the present context, which is not one of appellate scrutiny, but of judicial review of an administrative decision for jurisdictional error, the question is one of fairness of procedure. What is said to be unfair is that the Tribunal made demeanour-based findings against the appellants in circumstances where four and a half years elapsed between the observation of the demeanour and the making of the findings…
Mr Potts submits that the issue of delay in this matter is in a significantly different context to that of NAIS. This case is subject to s.422B and the binding effect of the Full Federal Court decisions in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62, which hold that s.422B excludes all common law rules of procedural fairness insofar as it falls within the penumbra of the hearing rule.
Mr Potts submits that in order to isolate jurisdictional error in this case, it is necessary to determine the effect of the delay and whether it invalidates the Tribunal decision. Due to s.422B, the relevant consideration is the factual circumstance involving inconsistencies between various versions given by the applicant over a period of time.
Mr Potts submits that when making that enquiry, there is no broader principle of law that comes into play, such as the effect of NAIS. Mr Potts argues that the Tribunal was acutely aware of the time at which these various accounts had been put forward by the applicant.
This contention is supported by the s.424A letter which set out in detail the dates that these accounts were given and the applicant’s explanation.
In the applicant’s response to the s.424A letter, he indicated that he was nervous and could not recall what he had previously stated at the Departmental interview:
3. I am not sure what I had told during the interview, as I was nervous and sometimes due to the stress, I could not recollect every single event. (CB 224)
The Tribunal decision also sets out a chronology of the matter under the heading “Application for review”.
Mr Young submits that this Court should not attribute any significance to that history, whereas Mr Potts submits that it demonstrates beyond a doubt that the third Tribunal was conscious of and had taken into account the procedural history when it decided the matter. The Tribunal member was conscious of the fact that the two previous Tribunal decisions had been quashed and that the applicant had given evidence to all three Tribunals.
Under the heading “Claims and Evidence”, the third Tribunal recorded in considerable detail the claims and evidence put forth by the applicant over approximately five years and prior to it making its decision. The contents of the protection visa application were also detailed at length. Similarly, it detailed the hearings and evidence given to the first two Tribunals. The third Tribunal then recited the contents of the s.424A letter before setting out its findings and reasons.
The third Tribunal accepted that homosexuals are members of a particular social group, that the applicant is homosexual and that he worked as a barber. It did not accept that he was a witness of truth and found that he created his claims in order to obtain the visa. Its reasons included the six reasons identified by Mr Young (at [13] above). I acknowledge that the decision does not state that the applicant’s claims have been made over about five years and did not say that some difference in the applicant’s account of events was due to the delay. However, I believe that the inconsistencies between versions of events given at different times were considered by the Tribunal in its decision-making process.
The Tribunal took the view that if the applicant had actually experienced these events, it would be unlikely that he would make substantial mistakes when recounting them. The Tribunal noted that the applicant did not inform the Department, the first or the second Tribunal that his injuries suffered in the Ukraine were so extensive that he required medical treatment or hospitalisation.
The Tribunal addressed this issue in the “Invitation to Comment on Information” letter:
You told the department at the interview that you were beaten up twice. You told T3 that you were beaten up on two occasions, reported the beatings to the police who on both occasions called an ambulance and you were taken to hospital and treated.
You described at T3 the second assault on you as having occurred about one and a half months after the first assault in January 2001. You described being so seriously hurt that you required hospitalisation for a few days. You did not inform the department or two previous tribunals that your injuries were so extensive that you required medical treatment and on one occasions two days of hospitalisation. (CB 181, 197)

The applicant stated in his response to the “Invitation to Comment on Information” letter dated 9 August 2006:
3. I’m not sure what I have told during the interview as I was nervous and sometimes due to stress, I could not recollect every single event. I said that I was beaten up twice on two occasions which were reported to the police who then called the ambulance on both occasions. (CB 224)
The Tribunal accepted that people can become nervous, but did not accept that a person who has had three opportunities to explain events would fail to inform anyone of the seriousness of his injuries. I am satisfied that the Tribunal did take into account the applicant’s three prior opportunities, the history of the matter and, implicitly, the delay. I am satisfied that this ground of review cannot be sustained.

Ground four

4. The Second respondent made jurisdictional error by failing to have regard, cumulatively to the essential elements of the Applicant’s claims – being a homosexual and a Greek Catholic from a town in Central Ukraine.

Mr Young submits that the Tribunal did not take into account the separate component, being the applicant’s religion, which added an important dimension to his claim of homosexuality. Mr Young admits that the focus of the applicant’s claim was his homosexuality and not his Christianity. Indeed, if he had not made a claim as a homosexual, he could have no relative claim in relation to his Christianity.
Mr Young contends that if an applicant states that he is homosexual and Christian, both have an effect on the persecution that is likely to be suffered. The Tribunal has to have regard to the cumulative effect of these two issues. Mr Young argues that it was inappropriate for it to consider the situation of homosexuals in the Ukraine independent of the situation of Christians in the Ukraine, and then conclude that homosexual Christians are unlikely to suffer significant persecution in the Ukraine.
Mr Young referred to the following analysis by the Tribunal to demonstrate its failure to have regard to the cumulative effect of the applicant’s homosexuality and Christianity:
I am required to consider the situation if the applicant were to return to the Ukraine now or in the foreseeable future. The applicant is a Ukranian homosexual Christian from Trenopol, a city in Western Ukraine. (CB 268.10)
Mr Young identifies the following passages as significant:
(i) According to the UK Home Office Report 2002 most of the population are adherents of Christianity, the major denominations being the Ukranian Orthodox Church (Moscow Patriachate), the Ukranian Orthodox Church (Kievan Patriarcate), and the Roman Catholic Church (mostly ‘Greek’ Catholics, followers of the Uniate or Eastern rite). There are also a number of Protestant churches and small communities of Jews and Muslims. The Constitution declares the rights and freedoms of individuals to be unalienable and inviolable regardless of race, sex, political or religious affiliation, wealth, social origin or other characteristics. Fundamental rights, such as the freedoms of speech and association and the right to private property, are guaranteed. Citizens have the right to engage in political activity, and all individuals are entitled to work and to join professional unions to protect their employment rights. The Constitution commits the state to the provision of health care, housing, social security and education. All citizens have the right to legal assistance. (CB 269.4)
(ii) The applicant has produced a number of reports. A report titled Ukranian Homosexuals Still Face Harassment from the government is dated 2000. I place little weight on this report as there are other reports (cited above) that post date this report. A report titled Role Reversal provides information in relation to a Ukranian family that fled to the USA after claiming religious persecution whilst the DFAT travel advice advises travellers about crime in the Ukraine. The article does not refer to homosexuals or Christians being targets of crime. The article Chronicle 2004 appears to be chronology of events in the Ukraine 2004. (CB 271.7)
(iii) In relation to police treatment of homosexuals or Christians, I have found no independent information in such sources as UK Home Office, DFAT or Helsinki Reports to support the view that homosexuals or Christians are unable to access police protection. There is no evidence before me to suggest that police persecute homosexuals in Ternopol or that Ternopol police do not protect homosexuals.
There is an Ombudsman who investigates complaints. The Ombudsman’s reports are available to international agencies.
The information before me does not suggest that the authorities do not afford state protection to homosexuals or Christians if they suffer harm from non-state agents.
A letter to the President written by gay and lesbian activists (cited above) indicates the number of gays and lesbians are about one mullion people and cities as matters of concern for its community the need to introduce legislation prohibiting discrimination on the basis of sexual orientation in all spheres of public life, legal civil partnership for people of homosexual orientation, equal social and economic rights for homosexual families, validity of same-sex marriages, programmes of social support for gays and lesbians and accounting for the rights and needs of gays and lesbians while drafting legislation. (CB 273.7)
The Tribunal then reached the following conclusion:
I have considered whether or not the applicant needs to live discreetly in the Ukraine as a practising homosexual. The independent evidence does not suggest that the applicant is unable to live as a homosexual or a homosexual Christian in the Ukraine. (CB 274.6)
Mr Young contends that this conclusion does not address all of the applicant’s evidence. It simply makes passing reference to the fact that the crux of the applicant’s claim is that the church in which he was baptised accused him of sodomy and his family distanced themselves from him. Mr Young argues that the Tribunal did not consider the cumulative effect of the applicant’s homosexuality and Catholicism which resulted in his fear of persecution from non-state agents.
Mr Young maintains that the Tribunal did not consider the question of homosexual Christians at all. This is despite it formulating the issue in respect of the applicant being a Ukrainian homosexual Christian from Ternopol. Although the applicant did not make a claim based on his Christianity alone, it added an important dimension to the claim in relation to his homosexuality and this was not considered by the Tribunal.
Mr Potts submits that the applicant did not present his claim as anything other than on his homosexuality. This is exemplified by what the applicant put as his claim at various points in time and reflected in the respective Tribunal decisions:
a)At the second Tribunal hearing of 13 November 2005:
The Tribunal confirmed the applicant’s refugee claims: that he feared persecution at the hands of nationalists, the authorities and the general public, for reasons of his homosexuality. The applicant confirmed that this was an accurate and complete summary of his claims. (CB 131.9)
b)At the third Tribunal hearing of 17 July 2006:
When asked why he wanted to leave the country he stated that in the Ukraine it was not the same situation as with gays in developed countries. In Ternopol during that time he worked at the Hotel Ternipol’s barber shop. He had lots of gay friends who were coming into the barber shop and saying that they were being beaten up. The same happened to him and the police would not help. (CB256.4)
When asked what he feared about returning to the Ukraine he stated that that what he experienced in the past will happen again. He does not think it is safe. (CB257.9)
The applicant’s response to the s.424A letter of 9 August 2006 states:
I applied for a protection visa because of the fear of persecution in the Ukraine due to my non-traditional sex orientation. (CB259.9)
Mr Potts submits that the current argument that Christianity was an essential component of the homosexuality claim is inconsistent with the references above. However, the Tribunal took both issues into account when it stated:
…the independent evidence does not suggest that the applicant is unable to live as a homosexual or a homosexual Christian in the Ukraine. (CB 274.6)
Mr Potts submits that although the applicant’s claim of fear of persecution because he was a homosexual Christian was dealt with briefly, it was sufficient. Mr Potts relied on the Tribunal’s conclusion which states:
Having considered the evidence as a whole the Tribunal is not satisfied the applicant is a person who Australia has protection obligations under the Refugee Convention. (CB 274.7, emphasis added)
In support of the contention that the Tribunal “considered the evidence as a whole”, Mr Potts referred to SZIWJ v Minister for Immigration & Multicultural Affairs [2006] FCA 1706 at [31]-[37] per Jacobson J:
[31] The appellant relied upon the decision of Moore J in Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 1401. That case was referred to with apparent approval by Finkelstein J in Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48]. Kaur was a case in which it was argued that the tribunal considered each of the facts put forward by the applicant in isolation but failed to consider their cumulative weight. His Honour accepted that this may amount to constructive failure to exercise jurisdiction. His Honour cited a number of authorities in support of that proposition.
[32] I should mention that in the present case the Minister’s counsel concedes that if there was a failure to consider the facts cumulatively then there would be demonstrated jurisdictional error.
[33] However, it seems to me that in the present case upon a fair reading of the Tribunal’s reasons it did not compartmentalise the appellant’s claims in the manner submitted by the appellant’s counsel. Rather, in my view, the Tribunal did consider the claims cumulatively and did consider all of the integers of the appellant’s claims. In particular, I would point to three factors to support that view; firstly, the Tribunal identified the issue as submitted by the appellant’s legal adviser, secondly, there seems to be a comprehensive treatment of the claims which were identified in some detail, thirdly, the Tribunal appears to me to have dealt with all of the factual bases of the claim, that is to say the critical bases upon which the claim is put.
[34] Mr Potts for the Minister relied in particular upon the statements in the Tribunal’s reasons including the reference to “all the reasons” and the conclusion which stated that the Tribunal had considered the “evidence as a whole”. The use of these expressions should not be considered to be a verbal formula or a substitute for a fair reading of the whole of the Tribunal’s reasons.
[35] However, in the present case, for the three reasons that I have mentioned above, I consider that the Tribunal dealt with all of the integers of the claim and that the facts put forward to support the profile were considered cumulatively. Indeed, that was the view which was eventually reached by Moore J in Kaur at [13] to [15]. It seems to me that the reasons given by the tribunal in Kaur pointed more strongly in the direction of a compartmentalised consideration of the claims than appears in the present case.
[36] In my view the present case falls within the approach taken by Finkelstein J in Jegatheeswaran at [49]. His Honour observed that the separate treatment of the incident relied on in that case did not indicate that the tribunal failed to look at the case in its entirety. His Honour remarked that the tribunal stated that it reached its conclusion “[h]aving considered the evidence as a whole” and that there was no reason to doubt the statement. In my view that is apt in the present case. Sundberg J agreed with the reasons given by Finkelstein J. The reasons of Emmett J at [23] are also consistent with this approach.
[37] I reject the submission put by counsel for the appellant that the Tribunal failed to address a contention. I do not think the appellant’s argument is supported by what was said in Applicant WAEE at [44]. The present case falls for consideration upon a fair reading of all of the reasons of the Tribunal. I have already given my views on that question.
Upon review of the Court Book, including the statement attached to the protection visa application, correspondence prepared by the applicant’s advisors and the three Tribunal decisions, I am satisfied that the claim in respect of persecution due to the applicant’s Christianity is insubstantial. I am satisfied that the Tribunal has considered the applicant’s claims both as a homosexual and a homosexual Christian, and that it considered that evidence as a whole. I am also satisfied that the Tribunal undertook its decision-making process in the manner set out by Jacobson J in SZIWJ. It is not apparent from a fair reading of the Tribunal decision that it used the alternative method of assessing the applicant’s claim as a homosexual and then independently as a Christian and drew a conclusion regarding the applicant being a homosexual Christian. In the circumstances, this ground cannot be sustained.

Conclusion

I am satisfied that none of the grounds of the amended application can be sustained and that the application should be dismissed.
I am satisfied that an order should be made that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 21 February 2008