SZOBR v Minister for Immigration

[2010] FMCA 333

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOBR v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 333

MIGRATION – Refugee Review Tribunal – whether Tribunal erred in not dealing with aspects of applicant’s claimed behaviour – whether Tribunal’s treatment of evidence gives rise to an apprehension of bias – behaviour presented as part of homosexuality claim – no failure to consider claimed behaviour – Tribunal’s reasoning distinguishable from that in Fuduche –Tribunal not Wednesbury unreasonable – no apprehension of bias – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.420, 430

In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074; (2001) 165 FLR 404; (2001) 28 Fam LR 158
Attorney-General for the Commonwealth v Kevin and Ors [2003] FamCA 94; (2003) 30 Fam LR 1
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Re Refugee Review Tribunal and Anor; Ex parte H and Anor [2001] HCA 28
Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296
NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
SZJKU v Minister for Immigration and Citizenship [2008] FCA 308
SCAA v Minister for Immigration [2002] FCA 668
Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476

Applicant: SZOBR

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3097 of 2009

Judgment of: Nicholls FM

Hearing date: 19 March 2010

Date of Last Submission: 19 March 2010

Delivered at: Sydney

Delivered on: 18 May 2010

REPRESENTATION

Appearing for the Applicant: Mr M Jones

Solicitors for the Applicant: Michael Jones, Solicitor

Counsel for the Respondents: Ms L Clegg

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 18 December 2009 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $5,700

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3097 of 2009

SZOBR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 18 December 2009 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 13 November 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

1. The applicant is a national of Lebanon who arrived in Australia as a visitor on 20 October 2008 (see Court Book – “CB” – CB 15). He applied for a protection visa on 3 February 2009 (CB 2 to CB 43 with annexures). He was assisted by a registered migration agent – Mr Sam Issa of Firmstone & Associates (CB 29).

Claims to Protection

1. The applicant’s claims to protection were set out in a statement annexed to his protection visa application (CB 32 to CB 35).

2. The applicant claimed that he was hit and bullied by his father and school friends because of his behaviour “as a gay”, and that he had had a six year sexual relationship with a male friend. His father would take his money, and not let him into the house. On one occasion, during an argument, his father hit him with a knife, cutting his hand.

3. The applicant also claimed that he wished he was “born a girl”. He further claimed that he: “used to dress like my sisters”.

4. The applicant claimed that his family would kill him were they to know he is gay, and that the “Authorities” and “Muslim sharia” would support them in this.

5. In support of his claims the applicant provided three reports from psychologists (CB 38 to CB 43 – D Hamburger, CB 50 to CB 52 – B Healey, and one from a forensic psychologist, CB 96 to CB 99 – C Proberts). His adviser also provided general information and copies of some Tribunal decisions (CB 61 to CB 94 and CB 101 to CB 123).

The Delegate

1. The delegate understood the applicant’s claims to be: “In summary he fears that his life is under threat from his family members in Lebanon because he is a homosexual” (CB 136.4).

2. The delegate noted inconsistencies in the “evidence”, particularly of previous relationships, provided by the applicant to the different psychologists, and at an interview with the delegate, and rejected the applicant’s explanation for this inconsistency (CB 136 to CB 138).

3. While accepting that the applicant’s family may ostracise him, the delegate did not consider this to constitute (UN Refugees) Convention based persecution.

4. The delegate did not accept that the applicant was a homosexual or a “cross-dresser”. The delegate considered the psychological reports provided. However she noted that these reports were drafted: “… on information provided to them by the applicant and their observations of the client’s symptoms” (CB 138).

5. The delegate also found that the applicant could safely relocate within Lebanon (CB 137, CB 138), and that he would not be denied state protection for a Convention reason (CB 138).

The Tribunal

1. The applicant applied for review of the delegate’s decision on 3 July 2009 (CB 140 to CB 144). He continued to be represented by the same migration agent (CB 140 and CB 142).

2. The agent made written submissions on the applicant’s behalf, received by the Tribunal on 24 August 2009 (CB 171 to CB 178). The applicant’s claim was relevantly said to be:

   “1. The Applicant has claimed that he fears persecution if he returns to Lebanon because he is a homosexual and will be harmed by the authorities and close relatives if they find this out.” (CB 171.5)

3. The large bulk of the submissions were directed to this issue, as was most of the general information also put in support at this time (CB 179 to CB 191).

4. The only other reference in the submissions was a mere assertion at the last dot point of a closely typed eight page document that:

   “ • The treating psychologists have both indicated that there is a gender identity issue and that a sexual reassignment operation may be an option. Our client will not have the opportunity of exploring this option if he were to return to the predominately religiously and socially conservative society of Lebanon”
   (CB 178)

5. The applicant attended a hearing before the Tribunal on 24 August 2009. His adviser attended by telephone (CB 192). A witness gave evidence on the applicant’s behalf (CB 192). The Tribunal’s account of what occurred is set out in its decision record ([26] at CB 272 to [61] at CB 277).

6. Following the hearing the adviser submitted further general country information on 3 September 2009 (CB 195 to CB 203), 17 September 2009 (CB 204 to CB 206), 18 September 2009 (CB 207 to CB 211) and on 22 September 2009 (CB 212 and CB 262). All of this material was directed to the issue of homosexuality in the Arab world, and Lebanon in particular.

7. In its decision record the Tribunal stated ([64] at CB 277):

   “The applicant claims to be fearful of persecution on the following bases:

   • that he is homosexual

   • that he is Transgender.”

8. The Tribunal found aspects of the applicant’s evidence as to his homosexuality to be problematic in three ways ([66] at CB 277):

   1)Inconsistencies in evidence of previous relationships ([67] to [70] at CB 277 to CB 279).

   2)Implausible that a person fleeing persecution on the grounds of homosexuality would not be aware of the fact that acts of homosexuality are against the law in Lebanon, and considered that such ignorance diminished the applicant’s credibility ([71] at CB 279 to CB 280).

   3)Inexplicable delay of more than three months before lodging an application for protection in Australia. The Tribunal did not accept the applicant’s explanation that it had taken him that long to realise that he could live freely in Australia as a homosexual ([72] to [73] at CB 280).

9. The Tribunal was not satisfied, on the cumulative effect of these concerns, that the applicant was a homosexual ([75] at CB 280).

10. The Tribunal also found that the cumulative effect of the above concerns diminished the credibility of the applicant such that it could not be satisfied as to the truth of the applicant’s claims to be of transgender status ([76] at CB 280).

Application to the Court

1. The application to the Court contains the following grounds:

   “1. The Tribunal misunderstood or confused, or it did not properly apply to the facts before it, the concepts of “homosexuality”, “transgender” and “transvestism”.

   Particulars

   The Tribunal’s reasoning reflects a stereotypical and flawed appreciation of the nature of sexual orientation in general and the behavioural patterns of people with “unacceptable” sexual desires in oppressive societies, and had no appreciation of the distinction between transvestism and transgender status.

   2. The Tribunal’s finding that the Applicant does not have a well-founded fear of persecution for a Convention reason arising from his sexual orientation is based on a treatment of the evidence before it that may give rise to an apprehension of bias.

   Particulars

   A reasonable observer could have concluded that the Tribunal’s treatment of cogent professional evidence supporting the applicant’s claims, in the absence of any evidence to the contrary, indicated an unwillingness or inability on the part of the Tribunal to properly assess the evidence before it.”

Before the Court

1. At the hearing before the Court the applicant was represented by Mr M Jones. Ms L Clegg of counsel appeared for the first respondent.

2. In addition to the Court Book, the Court had before it the Minister’s Response, and written submissions filed on behalf of the applicant and first respondent. The applicant has also put a transcript of the hearing with the Tribunal before the Court (“T”).

Ground 1

1. The first ground as pleaded in the application, and explained in written submissions, and initially in oral submissions before the Court, is that the applicant put before the Tribunal three separate and distinct “elements” or circumstances, that he said would lead to persecutory harm if he were to return to Lebanon.

2. These elements were described as his homosexuality, his transgender identification, and his practice of transvestism. The applicant’s case as initially understood was that while the Tribunal addressed the first two, it failed to address what was said to be a distinct part of the applicant’s case, his transvestism, thus revealing jurisdictional error.

3. The applicant’s written submissions argue that transgender identification and transvestism are quite separate and that both are distinct from homosexuality.

4. Although no authority was cited in support, I note what was relevantly said in In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074; (2001) 165 FLR 404; (2001) 28 Fam LR 158 at [15] per Chisholm J:

   “A transsexual is not the same as a homosexual. A homosexual is one who is attracted sexually to members of the same sex. Similarly a transsexual is not the same as a transvestite. A transvestite is someone who dresses in the clothes of the other sex. A transsexual might or might not be a homosexual” (footnotes omitted).

5. On appeal (per Nicholson CJ, Ellis and Brown JJ – Attorney-General for the Commonwealth v Kevin and Ors [2003] FamCA 94; (2003) 30 Fam LR 1) the Court agreed with the “nomenclature” used by his Honour and adopted it for the purposes of the appellate judgment (see at [20]). Further, at [21]:

   “It is important to remember that there is usually a distinction between a transsexual person and a homosexual person, as his Honour correctly pointed out. He noted that a transsexual person might or might not be of a homosexual orientation. Similarly, as his Honour pointed out, a transsexual person should not be confused with a person who is termed a ‘transvestite’, in that the latter is someone who dresses in the clothes of the other sex but often does not regard themselves as a member of the opposite sex.”

6. The applicant’s oral submissions, however, proceeded to move away from what I understood to be the initial position. Mr Jones conceded that the applicant did not “make much of a claim of fearing persecution because of his internal perception of his own gender”. The concession was made that this issue (transgender) is not one that the Tribunal does not deal with. (Probably with reference to [76] – [77] at CB 280 to CB 281 of the Tribunal’s decision record.)

7. I therefore understood the applicant’s position ultimately to be that the Tribunal erred in not dealing with that aspect of the applicant’s claims which referred to the applicant’s behaviour of wanting to, and dressing in, girls’ or women’s’ clothing. Further, that he had been observed to do so. The applicant’s complaint was that, by failing to address this, the Tribunal did not address the entirety of the applicant’s claims and thus fell into jurisdictional error.

8. In support of this argument, the applicant referred to the following material:

   1)The applicant’s initial (translated) statement put in support of his protection visa application (CB 32). In particular:

   “I, [SZOBR] tell the story of my life. Since I was 12 years old I used to like playing with my sisters and like to play girl games. I used to dress like my sisters.”

   2)The transcript of the Tribunal hearing:

   a)(at T15, line 41):

   “THE INTERPRETER: Would you like me to tell you our story? When I was young, I was a friend with Ahmed. He always used to come to our house and I used to go to his house. When I was young, I used to wear my sister’s clothing all the time and I always liked to walk with the girls, only the girls and when I went to school I used to stay with the girls as well and my friends used to make fun of me and they used to call me gay and things like that…”

   b)(at T23, line 30):

   “[THE TRIBUNAL]: All right. So when would you dress up as a woman?

   THE INTERPRETER: When I was 12, when I was home by myself, I used to dress up as a girl and I used to play by myself and when my mum and my sisters used to come home, I used to take them and see what they bought.

   [THE TRIBUNAL]: And when did you stop doing that?

   THE INTERPRETER: Until I came here, because when I was with Robea I used to try woman’s clothing when I was at the shop, but I didn’t go out with them. I couldn’t wear woman’s clothes and walk in village with that.

   [THE TRIBUNAL]: Was Robea also a cross dresser?

   THE INTERPRETER: No. He didn’t use to wear that, only me, I used to wear that. He was only my friend.

   [THE TRIBUNAL]: So you would put them on in his father’s shop?

   THE INTERPRETER: I used to wear them where they put the clothes on inside at the shop and I used to call him and tell him about these clothes and he used to take them back to his holiday house and bring them the next day back to the shop.

   [THE TRIBUNAL]: So when you were in Danbo, would you go out publicly wearing women’s clothing or makeup or anything like that?

   THE INTERPRETER: No. They’ll all kill me. They’ll all slaughter me.

   [THE TRIBUNAL]: Did you want to go out dressed in women’s clothing with women’s makeup on in Danbo?

   THE INTERPRETER: Yes. When I was home alone, I used to do that all the time, but I couldn’t do it outside the house.

   [THE TRIBUNAL]: But did you want to? Did you want to go outside the house and walk around the streets dressed as a woman?

   THE INTERPRETER: Yes, yes.

   [THE TRIBUNAL]: You wanted to.

   THE INTERPRETER: Yes and I’d like to do it here as well, but I need some time to get used to the streets.

   [THE TRIBUNAL]: Have you done it here?

   THE INTERPRETER: No, only once when I was with Yusef.

   [THE TRIBUNAL]: What did you do?

   THE INTERPRETER: I wore a woman’s clothes and I went outside in the street but I came back because I didn’t want anyone to see me.

   [THE TRIBUNAL]: Where did you go?

   THE INTERPRETER: In the street, then I went back.

   [THE TRIBUNAL]: Just one time or many times?

   THE INTERPRETER: Well, only once, but inside the house I do it several times because it’s only me and Yusef who are living together at Broadmeadows.”

   c)(at T29, line 1):

   “THE INTERPRETER: But he [the applicant’s father] has his doubts and he caught me a few times wearing a woman’s clothes on, so because I haven’t spoken to him since I got here, he’s got his doubts and I know that if I come back he’s going to be waiting for me and he’s going to hit me”.

9. Mr Jones further explained, and ultimately clarified, that the applicant did not rely on any failure of the Tribunal to deal with a claim of “transvestism”, but that the Tribunal simply did not deal with that aspect of the applicant’s behaviour which involved the wearing, and desire to wear, women’s clothes. Behaviour for which he claimed in the past his father had hit him, and for which he would suffer harm if he were to return to Lebanon in the future.

10. Mr Jones submitted that in its analysis the Tribunal identified two bases upon which the applicant claimed to fear persecutory harm. That he was “homosexual” and that he was “transgender”. (See [64] at CB 277.) In all, the submission was that they were the only two points dealt with by the Tribunal. It did not deal at all with the applicant’s claim that he would face persecution because of his behaviour of dressing in women’s clothing. That is, it did not make any specific finding about the applicant’s dressing up in women’s clothes, and it should have done.

Consideration

1. I understood this claim, although no relevant authorities were referred to, to generally rely upon such authorities as Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 90 FCR 287, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.

2. The applicant’s ground, as ultimately explained and put in oral submissions before the Court, does not succeed. I agree with Ms Clegg that any plain reading of the material before the Court reveals that the entirety of the applicant’s claim to fear persecutory harm if he were to return to Lebanon was that he was a homosexual. His behaviour of wearing women’s clothes, and even his feelings of being a woman, were all presented as part of, integral to, and behavioural examples of his homosexual orientation.

3. The applicant’s initial statement (at CB 32) certainly makes reference to his dressing like his sisters, and feeling that he should have been born as a girl. But, on any plain reading of this statement, the context within which this behaviour, and feeling, are presented is that of having a homosexual orientation.

4. Mr Jones submitted that the applicant had said that he played with his sisters and used to dress like his sisters. That his father used to hit him. But the applicant himself says in his statement:

   “My dad is very conservative, he used to hit me because of my behaviour as a gay, he used to hit me brutally. When I was at school my friend used to hit me and call me gay” [emphasis added] (CB 32.2).

5. Further in the statement the applicant emphasises that his family, “the Authorities and the Muslim sharia” would “kill” him “… if they know that I am gay” (CB 32.6).

6. Ultimately, the applicant states:

   “I can not go back to Lebanon because soon or later they are going to know that I am gay.

   …

   One more time I ask the Australian government to protect me and protect all the gays because being gay is one of my normal rights.

   …

   Thanks a lot for looking on my case because I was not able to say that I am gay all my life and now I can say it and practice it in Australia.” (CB 32.8 to CB 32.10).

1. In these critical parts of the applicant’s own statement there is no reference to separately fearing harm because he dresses in women’s clothing, or for that matter because he feels that he should have been born as a girl. His fear of return to Lebanon is about a fear of harm for being gay. His behaviour of dressing as a girl, along with his claimed same sex relationship, was all presented as part of his being of homosexual orientation. This was the reason for his claim to fear persecutory harm.

2. In submissions to the Tribunal made on the applicant’s behalf by his migration agent, the basis of the claim to fear persecutory harm is, again, plainly presented as:

   “1. The Applicant has claimed that he fears persecution if he returns to Lebanon because he is a homosexual and will be harmed by the authorities and close relatives if they find this out.” (CB 171.5).

3. The submission continues to emphasise the basis of the applicant’s claims as being based on his homosexual orientation. The agent refers to a psychological report which accepted that the applicant was a homosexual (paragraph 2 at CB 171.7). While the adviser erroneously states that the delegate did not interview the applicant (see CB 136 to the contrary), the thrust of the complaint at paragraph 3 is to complain about the delegate’s concerns about the “… genuineness of the Applicant’s claims that he is a homosexual” (CB 171.7).

4. Ultimately, the adviser identifies:

   “4. The question for the Tribunal is whether there is a real chance of suffering harm as a homosexual person in the reasonably foreseeable future if the applicant were to return to Lebanon” (CB 171.8).

5. The remainder of the submission, relying on another “RRT” decision (CB 171 to CB 176), and further points relevant to the applicant’s case which the agent asks the Tribunal to note, all deal with homosexuality (CB 176 to CB 178). There is absolutely nothing about the applicant’s “separate” behaviour of dressing in women’s clothing, let alone that this should be seen as a distinct or separate claim made by the applicant.

6. Significantly, while the submission, at the last dot point (CB 178.3), and almost as an afterthought, makes reference to the psychologist’s references to “gender identity issue”, there is no reference to transvestism, or the behaviour of dressing in women’s clothing. (See also the supplementary material provided by the agent at CB 179 to CB 191.)

7. The applicant provided three psychologists’ reports, ultimately put before the Tribunal. Each one reported on information provided by the applicant himself to the respective psychologists.

8. Mr D Hamburger (CB 38 to CB 43) stated (CB 40.3):

   “[The applicant] is seeking asylum in Australia because of sexuality (homosexual) discrimination in his home country (Lebanon).”

   While there was a reference to the applicant “liking to wear women’s apparel” (CB 42.3), and a reference to “Further sexuality investigation and monitoring would be required to differentiate between a Gender Identi[t]y Disorder (GID) or fetish” (CB 42.4), any plain reading of the report reveals that the focus of the applicant’s concerns were reported as:

   “11.6 [The applicant] seeks permanent residence on the basis of sexuality discrimination, and because of the possible consequences of being a homosexual in Lebanon” (CB 43.2).

9. In short, to the extent that the behaviour of dressing in women’s clothes was mentioned, it was clearly presented, and seen, as a part of, or subsumed by, the claim to fear harm because of his homosexuality.

10. Clinical psychologist BJ Healey reported that the applicant: “… suffered significant discrimination because he discovered that he was of gay disposition…” (CB 51.2). While there was some general reference to his family and the local community ridiculing and being “abusive of his mannerisms” (CB 51.4), there was no reference to any behaviour of dressing in women’s clothing.

11. Forensic Psychologist C Proberts reported as “background” to the report that the applicant had been referred by Mr Issa in relation to an application for a protection visa. Reference was made to the applicant’s statutory declaration: “… that [the applicant] is homosexual and does not identify as a male and he cannot return to Lebanon as he fears for his life” (CB 96.5).

12. Again, while there were references to his dressing in his sisters’ clothes (CB 97.2) and “… dress as a woman…” (CB 97.9), the psychologist summarised the applicant’s “Psychological state” as presenting as a: “… complex person who is homosexual, is highly likely to have Gender Identity Disorder…” (CB 98.4). The report concludes with the “opinion” that the applicant: “… is genuine in his statement that he is homosexual and that he is highly likely to be suffering Gender Identity Disorder…” (CB 98.10). Relevantly, and at most, the behaviour of dressing in women’s clothes is plainly subsumed in the issue of being homosexual, or at best and in addition, in suffering Gender Identity Disorder.

13. In submissions before the Court Mr Jones referred to parts of the transcript of the Tribunal hearing where reference was made to the behaviour of dressing in women’s clothes (see [33.2] above).

14. I agree with submissions by Ms Clegg that these references cannot be looked at in isolation to the rest of the transcript. A proper reading of the relevant parts of the transcript reveals that the behaviour of dressing in women’s clothes was put as a part of, and behaviour in support of, the claim to be homosexual.

15. The applicant referred to what was said at T15, line 41 (see [33(2)(a)] above). What immediately preceded this at T15, line 36, reveals that the subsequent discussions, which included the references to dressing in women’s clothing, came in the context of a particular claimed homosexual relationship. At T15, line 36:

    “[THE TRIBUNAL]: All right. Now, we were discussing your relationship with Mr Tarha and I think you were getting a bit frustrated because you wanted to tell me about the relationship and I was focussing on other details, but I’ll now invite you to say whatever it is you want to say about your relationship with Mr Tarha.”

16. The applicant’s reference to what was said beginning at T23, line 30 (see [32(2)(b)] above), can also be seen in a similar context. What precedes the extract relied on by the applicant, for some pages of the transcript, is the Tribunal’s exploration of the applicant’s claimed homosexual relationships. At T22, line 31, the Tribunal asked whether the applicant had experienced any hardship in Lebanon as a result of being a “homosexual man”. The applicant’s answer (T22, line 36) was that he feared his father who frequently hit him.

17. The Tribunal attempted to ascertain whether the applicant had suffered harm in any other way or from any other source. But the context again was (T23, line 16):

    “[THE TRIBUNAL]: So the hardship that you’ve suffered since you’ve been gay has been your father’s very hostile attitude towards you which has sometimes manifested itself in violence, the mocking and sneering and teasing in Juni and nothing else.”

18. The applicant’s answer to this question was that in the village there was no freedom to wear tight clothes, to wear girls’ clothes or to go to nightclubs (see T23, lines 20 to 23).

19. It was clear, therefore, that by T 23, line 30 (the part of the transcript relevantly relied on by the applicant now, see [33(2)(b)] above) the reference to dressing as a woman was put by the applicant, and discussed, in the context of behaviour (along with wearing tight clothes, and going to (gay) nightclubs) that went to the issue of his being homosexual.

20. The reference at T29, line 1 (see [33(2)(c)] above), to wearing women’s clothes, yet again, should be properly seen as being part of the discussion of the applicant’s claimed homosexuality. The “doubts” referred to by the applicant at T29, line 1, when read in context of what precedes it, are the father’s claimed “doubts” about whether he is a homosexual in circumstances where the applicant’s father had caught him wearing women’s clothes.

21. Ultimately, the applicant’s submissions before the Court explained that, in ground one, the applicant complains that while the Tribunal dealt with his claim to fear persecutory harm in Lebanon because of his homosexual orientation (and even his “claimed transgender status”), it did not address or deal with his claim to fear harm because of his behaviour of dressing in women’s clothing.

22. In light of the above, this ground is not made out. The Tribunal well understood that the applicant had claimed to have engaged in, and to want to engage in this behaviour in the future. (See [17], [40], [48], [56] in setting out the applicant’s claims.) I agree with Ms Clegg that, in light of the applicant’s statements, his evidence, reports and submissions made on his behalf, this behaviour was presented as being part of, and indicative of, his homosexual orientation.

23. This is how the applicant’s claims were presented. This is how the Tribunal dealt with them. Ultimately, in its analysis, the Tribunal did make reference to this aspect of the applicant’s behaviour. At [72] (CB 280), the Tribunal states:

    “… When asked about the apparent delay, the applicant stated that he was tentative about venturing out in women’s clothing and it took that long for him to realise that he could live freely as a homosexual in Australia”.

24. When read in light of all the material before it, this extract confirms that the Tribunal did not ignore or fail to consider this claimed behaviour by the applicant, and properly understood the link made in the applicant’s claims as presented in their entirety, that the behaviour of dressing in women’s clothing was a manifestation of his homosexual orientation. The Tribunal therefore did not fail to deal with this aspect of the applicant’s claims. Ground one, as explained, and ultimately pressed in submissions before the Court, is not made out.

Ground Two

1. Ground two asserts that the Tribunal’s finding that the applicant did not have a well founded fear of Convention related persecution was based on treatment of the evidence before it, such that it would give rise to an apprehension of bias.

2. In submissions the applicant relied on Re Refugee Review Tribunal and Anor; Ex parte H and Anor [2001] HCA 28 (“Ex parte H”), per Gleeson CJ, Gaudron and Gummow JJ at [27]-[28]:

   “[27] The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of ‘a fair-minded lay observer’ when, as is the case with the tribunal, proceedings are held in private.

   [28] Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.” [Footnotes omitted.]

3. I ultimately understood the applicant’s attack to be that the Tribunal’s various treatment of the three psychological reports submitted to it by the applicant would give rise to the possibility that the Tribunal did not bring an open mind to the question of ascertaining the credibility of the applicant’s claim.

4. This treatment was said to have manifested itself in a number of ways. The first aspect, or limb, was that the Tribunal focused on one word in one of the reports to find an inconsistency as between two of the reports (Hamburger and Healey).

5. The second limb was that, in light of that finding, the Tribunal compounded its error by ignoring the expert “opinion” provided in the Proberts report which was directly relevant to the issue of the applicant’s credibility, and specifically in relation to his claim to be of homosexual orientation.

6. That this treatment of the reports must also be seen in light of the other bases on which the Tribunal’s adverse finding was grounded. Mr Jones’ submission was that there were three bases for the Tribunal’s decision.

7. The first “base” gives rise to the first limb of the applicant’s attack as referred to above. Namely, that the inconsistency in what the applicant told the first two psychologists greatly diminished his credibility.

8. The other two “bases” were the Tribunal’s finding that the applicant would have been expected to know that homosexual acts were not legal in Lebanon, and that the delay in applying for protection after arrival in Australia led to an adverse inference as to the genuine nature of the applicant’s claim to fear persecutory harm on the basis of his claimed homosexuality.

9. Further, in submissions Mr Jones relied on what was said in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515 (“Fuduche”), per Burchett J at 528:

   “… I have been concerned with the assessment of the facts (medical and other), upon which the delegate acted. That assessment is so at variance with the material before the delegate as to fall within the rare category of cases to which the principle of Wednesbury unreasonableness applies. It is not a question of mere error in findings of fact, a form of error that would not disclose any legal defect in the decision. Here, no reasonable person could have come to such conclusions. Indeed, counsel for the Minister was constrained to concede in argument that, although the recommendation at one point professes to accept Dr Kaplan’s opinion, and nowhere acknowledges that it is really departing from the doctor’s views, ‘the decision-maker doesn’t accept it (i.e. Dr Kaplan’s opinion) to the extent that Dr Kaplan states, because if he had he’d have come to a different opinion (i.e. he would have reached a conclusion in favour of the applicant).’ In other words, the decision was admittedly unreasonable, on the basis of the doctor’s report. Yet there was no evidence upon which it was open to the delegate to make medical findings different from those suggested by the report.”

10. Mr Jones drew on this to submit that in the current case the Tribunal’s assessment of the psychologists’ “evidence”, in both of the limbs referred to above, was so unreasonable that it fell into the same error as identified in Fuduche.

11. He submitted that the Hamburger report (CB 38 to CB 43) and the Healey report (CB 50 to CB 52) are in essence summaries of what the applicant respectively told them. This is to be contrasted with the Proberts report (CB 96 to CB 99), a report of a “forensic” psychologist, which, unlike the other reports, contained a relevant “opinion”.

12. Mr Jones referred to (CB 98.8):

    “My Opinion

    Throughout the interview assessment I observed [SZOBR] very closely and I formed the opinion that his statements and claims are genuine and that his fear of returning to his country of origin is also genuine. There were indications that when he was thinking about what would occur if he did return to Lebanon that he was experiencing the fear of returning and being murdered that he was expressing. Therefore, I have formed the opinion that [SZOBR] is genuine in his statement that he is homosexual and that he is highly likely to be suffering Gender Identity Disorder and Posttraumatic Stress Disorder and in my opinion he is also genuine in his statement that he fears for his life if he returns to Lebanon.”

13. Mr Jones stressed that this was an observation by a person trained to make such observations, and one made expressly for the purpose of submission to a Tribunal (hence the relevance of the emphasis on the word “forensic”). This can be contrasted with the other two reports which gave no opinion whatsoever, yet were relied upon to a great extent by the Tribunal.

14. Further, in relation to the first limb generally, Mr Jones submitted that the Tribunal looked at some “hearsay evidence” or “third party” reports (the Hamburger and Healey reports), and found one discrepancy which led the Tribunal to find the applicant was not telling the truth.

15. He referred the Court to [70] (at CB 278 to CB 279) of the Tribunal’s analysis. By way of background to understanding the applicant’s submission, I note that the applicant made various claims to have had long term sexual relationships with, relevantly, two men: Ahmad and Rabieyh.

16. The Tribunal’s analysis was that when the applicant consulted the “second” psychologist (Healey), he told him about the relationship with Rabieyh, but made no mention of the longer relationship with Ahmad. The Tribunal noted the applicant’s inconsistent explanations for the omission, but ultimately drew no adverse inference from this omission, because in the circumstances it said it would be unreasonable to do so, and noting also that the applicant told the “third” psychologist (Proberts) about Ahmad (CB 278.10 to CB 279.3).

17. However, the Tribunal saw as important that the applicant had told Mr Hamburger that he had only had “one” sexual relationship. That is although he had told Mr Healey of the relationship with Rabieyh he did not tell Mr Hamburger. The Tribunal found this cast doubt on the truth of his claimed relationship with Rabieyh. The Tribunal distinguished this omission from the one referred to above (CB 279.4)

18. The Tribunal found that this diminished his credibility on the issue of his sexual orientation. The Tribunal found that, while this matter was not determinative of the outcome of the review, it reinforced the inference to be drawn from other concerns it had found in the applicant’s evidence that he had “contrived his homosexual orientation for migration purposes” (CB 279.7).

19. Mr Jones took issue with the Tribunal’s finding of this inconsistency, its reliance on this inconsistency (first limb) and its failure to address or take into account the expert opinion expressed in the Proberts report (second limb).

20. In relation to the second limb of the attack, Mr Jones submitted that the circumstances of this case fell squarely within what was said in Fuduche. That is, if the word “psychological” is substituted for “medical”, what was said in Fuduche applies equally to the circumstances of this case (see [74] above).

21. I understood this part of the submission to be, therefore, that on the issue of the credibility of the applicant’s claim to be a homosexual, the Tribunal’s conclusion was so directly opposed to the Proberts “opinion” as to be so unreasonable in itself (in the Wednesbury sense (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223)) that the well informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the question of the applicant’s credibility.

22. In relation to the other two “grounds” said to form the basis for the Tribunal’s decision (in addition to the “omission” ground), Mr Jones further submitted as follows.

23. The second ground arises from the Tribunal’s finding involving the applicant’s lack of knowledge of relevant law (CB 279):

    “71. Article 534 of the Lebanese Penal Code makes homosexual intercourse an offence, yet the applicant was not aware of it. The Tribunal notes the applicant’s evidence in this context is essentially an unsophisticated village boy and could not be expected to know such things. The Tribunal [notes] that he is young (just turned 19 at the time he left Lebanon) and not a lawyer but nevertheless finds it implausible that a person who claims to be fleeing persecution as a homosexual would not be aware of the law that perpetuates much of that persecution and repression. If that is setting the expectations too high, the Tribunal considers that a person who claims to be fleeing persecution as a homosexual would at least be aware, if not of the actual paragraph in the Penal Code at least of the fact that acts of homosexuality are against the law. The Tribunal considers that, if the applicant was homosexual and had been living in Jounieh and attending the gay nightclub surreptitiously he would know why he was attending surreptitiously i.e. because it was against the law and people who attended a gay nightclub could be targeted by the authorities.”

1. I understood Mr Jones’ complaint to arise from the Tribunal’s use of the word “surreptitiously”. That, with reference to the relevant part of the transcript (see T20, line 1 to T20, line 6 below), the Tribunal misrepresented the applicant’s evidence in order to come to a conclusion that it was implausible that the applicant did not know about the statute law relating to homosexuality:

   “[THE TRIBUNAL]: It doesn’t sound like you’re very fearful of persecution going out to gay nightclubs two or three times a month for four years.

   THE INTERPRETER: For four times, but I didn’t go there all the times, not all the times and I didn’t stay at the nightclubs for a long time because I didn’t have the money to buy that many things, so I didn’t stay for too long.”

2. The Tribunal’s reasoning and finding was said to be so at variance with the evidence before it that it again comes within the “scope” of unreasonableness leading to an apprehension of bias. That is, that the applicant’s evidence that he did not stay at the nightclubs for any length of time because he did not “have the money to buy things” does not provide any probative basis for the Tribunal to describe his visits to the nightclubs as being conducted “surreptitiously”.

3. The third “ground” arises from the Tribunal’s finding that the delay in applying for a protection visa led to an adverse inference about the applicant’s claim to be a homosexual (see [72] to [74] at CB 280).

4. Mr Jones submitted that the applicant arrived in Australia on 20 October 2008 and lodged his application on 2 February 2009. His argument was that the length of time, taking into account the intervening holiday period, his lack of English, and cultural circumstances, were all circumstances which meant that these factors did not “objectively” support the Tribunal’s finding. A finding described as not being supported by the facts.

5. The argument therefore is that this again was unreasonable on the part of the Tribunal, in the Wednesbury sense, such as to again fall within the analysis and reasoning in Fuduche, and to also cause the lay observer to apprehend the possibility of bias.

6. Ms Clegg’s response on behalf of the Minister relied on two approaches.

7. The first was to rely on the test as formulated in Ex parte H, but to also remind the Court of what was said in Re Minister for Immigration & Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 179 ALR 296 (“Epeabaka”) per Kirby J at [90]:

   “First, it must be remembered that the test for disqualification in a case such as the present is not merely a sense of unease or a feeling that conventions of discretion and prudence have been breached. Something more is required. Although the law interposes the imputed consideration of a fair minded observer and speculates on whether that person ‘might’ (rather than ‘would’) entertain a reasonable apprehension of bias in the particular case, the serious consequences that necessarily attend the affirmative conclusion oblige that it should be ‘firmly established’. This reflects a recognition that decision-makers (whether in the judiciary, in adjudicative tribunals or elsewhere vested with public power) are human beings. They have foibles and personal characteristics that vary substantially, reflecting differences of view that also exist in the community at large. Being independent, such decision-makers, in their professional conduct and utterances, will often exhibit robust individuality that is characteristic of people who are obliged to make important and difficult decisions without fear or favour” [footnotes omitted].

   [See also further at [37] – [65] and [89] – [94] of Epeabaka.]

8. The submission was, in the broad, that where apprehended bias has been upheld, this usually involves some criticism of the Tribunal’s reasoning. That is, it is either irrational, unreasonable or capricious (see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 (“NADH”) per Allsop J), or there is something about the conduct of the Tribunal, for example arising from the transcript of the hearing, that supports the proposition that a fair minded lay observer would conclude as to the possibility that the Tribunal had come to the review with a closed mind. (See also SZJKU v Minister for Immigration and Citizenship [2008] FCA 308 (“SZJKU”) per Emmett J at [36]).

9. The second approach was to respond to the applicant’s submissions in relation to the three grounds or bases on which the Tribunal relied to conclude as to the credibility of the applicant’s central claim as being requests for this Court to engage in impermissible merits review.

10. In all, therefore, while some parts of the Tribunal’s conduct may reveal robust questioning and testing, the material before the Court is such that the test for apprehended bias, as also understood in light of relevant authorities, is not met (see Ex parte H at 434-4; Epeabaka at [15] and per Kirby [53] – [65], [89] – [95]; NADH per Allsop J at [21]; SZJKU per Emmett J at [36]).

Consideration

1. Turning first to the matter of the three “grounds” identified by the applicant as being the bases for the Tribunal’s decision in relation to its rejection of his claim to be a homosexual.

2. First, the Tribunal did not reach its adverse conclusion only on the facts involved in these three “bases”. The thread flowing through the Tribunal’s reasoning was that it had difficulty with the applicant’s evidence given in explanation for the matters of concern raised by it.

3. For example, in relation to what he told the various psychologists about his sexual relationships, an element additional to the inconsistencies found by the Tribunal was the implausibility and lack of credibility of the applicant’s explanations for the inconsistencies (see [68] – [69] at CB 279).

4. Similarly, when the Tribunal asked the applicant about what it said was the delay in making the application for a protection visa, it was the applicant’s answer that he was tentative about going out in women’s clothing that was also found to be a concern ([72] at CB 280).

5. The Tribunal made it clear that it did not just make findings in relation to the three grounds in isolation, but was concerned as to the “problematic” nature of the applicant’s own evidence. In this sense there is a fourth element or “base” to be added to the three bases referred to by Mr Jones. That is, the problematic nature of the applicant’s own evidence, particularly when given in relation to explanations to concerns raised by the Tribunal.

6. Second, the Tribunal made it clear, as Mr Jones acknowledged, that it did not rely on just one of its concerns to find adversely to the applicant’s credit. It was the combined or cumulative effect of all of its concerns that it found to be determinative (see [75] at CB 280).

7. Turning to the matter of the Tribunal’s treatment in general of the psychologists’ reports. In part, Mr Jones’ attack on the Tribunal’s reliance on what the applicant told Mr Hamburger and Mr Healey was to attack the reports themselves as being “third party historical reports” or “hearsay”. The Tribunal’s reliance on such material was said to be, at least implicitly, unsafe, and the time and effort spent on them by the Tribunal, as opposed to the Proberts report, was part of the conduct which could give rise to an apprehension of bias.

8. These references ignore the very important fact that these reports, all three, were provided to the Tribunal by the applicant. That is, provided on his behalf by his adviser, who was a registered migration agent, who had commissioned each of the reports for the purpose of submitting them in support of his application for a protection visa (CB 40.1, CB 50.2 and CB 52.5, CB 96.5).

9. If there were omissions, contradictions, inaccuracies or mistakes in the reports then it was perfectly open to the applicant, or more pointedly his adviser, who was, after all, a registered migration agent and therefore presumed to have expertise in the presentation of submissions and materials in support of protection visa applications, to have properly explored these, either at the time of submission, or subsequently, but at least before the matters of concern were raised by the Tribunal at the hearing. After all, the inconsistencies as to the applicant’s claimed homosexual relationships, and the relationships themselves, were significant matters, and not just matters of mere detail or background.

10. The sense in which the criticism is now made ignores the fact that the Tribunal is not bound by the rules of evidence (s.420(2)(a)). When properly understood, this aspect of the applicant’s attack now on the Tribunal’s treatment of, in particular, the Hamburger and Healey reports, was that the reports, and more particularly any omissions or inconsistencies in the reports, should not have been accorded such prominence, or even relied upon, by the Tribunal because they were drafted by a “third party”.

11. The answer to this is that they were drafted based on information provided by the applicant himself, by persons whom the applicant, through his adviser, had commissioned to prepare reports to support his refugee claims. They were submitted by the applicant to the Tribunal with the assistance and advice of a registered migration agent, in circumstances where any deficiencies could have been properly addressed in a timely fashion.

12. The Tribunal was perfectly entitled to consider the reports and accord them the prominence in its analysis that it did. If there is a grievance on the part of the applicant now in this regard, then it perhaps should be more properly addressed to his migration agent. The Tribunal’s treatment of these reports does not contribute to showing that an apprehension of bias can be made out.

13. The central complaint in the first limb in the argument that an apprehension of bias is made out is that the Tribunal “picked” on one word in one of the reports and this led to one of the three “bases” to ground its adverse finding as to the applicant’s credit.

14. The Hamburger report states:

    “1.3 [The applicant] reported he has engaged in one homosexual relationship for approximately six years and the partner[’]s name at the time was Mr Ahmed…” (CB 40.3) partner’s

15. In the Healey report, reference is made to: “… the development of a relationship in Beirut…” (CB 51.2). In context, this is a reference to a relationship with Rabieyh, as the relationship with Ahmad was conducted in and around Denbo. No reference is made to Ahmad or another relationship in the Healey report.

16. In the Proberts report there is a reference to Ahmad (CB 97.3). There is no reference to Rabieyh.

17. Mr Jones’ submission is that the sole basis for challenging the applicant’s credibility is seen in the Tribunal’s analysis at [70] (CB 279.5) where the Tribunal quotes what was relevantly said in the Hamburger report (see [112] above). In so doing the Tribunal underlined the word “one”. This, in Mr Jones’ submissions, was the sole basis for challenging the applicant’s credibility. That is, he told one psychologist he had “one” homosexual relationship, in context with one particular person, and told the other he had a relationship with someone else.

18. I understood the complaint to be that the focus on one word, which in context could be subject to other meanings, was so unreasonable in the Wednesbury sense, that it gives rise to an apprehension of bias.

19. Mr Jones submitted that in its decision record (at [70]) the Tribunal underlined the word “one”, when no such emphasis appears in the original text. Further, that the unreasonable element in the Tribunal’s approach can also be seen because there is ambiguity as to whether the word “one” should be read as “only one”.

20. The short answer to this particular element of the complaint is, as Ms Clegg submitted, the “trite” submission that the meaning to be ascribed to the evidence before it is a question of fact for the Tribunal to decide.

21. But further, even if there were some ambiguity, and even if some other reasonable meaning could be ascribed to what was said, this does not make what the Tribunal understood to be the meaning unreasonable, or so unreasonable that the possibility of an apprehension of bias arises. That is, another Tribunal member may have read what Mr Hamburger wrote as meaning that the applicant engaged in “a” homosexual relationship as opposed to “one” homosexual relationship. But the meaning that the Tribunal ascribed is equally not unreasonable.

22. This is particularly so when regard is had to the Hamburger report as a whole. There is no mention in that entire report to any other relationship. That alone makes the Tribunal’s understanding, and its finding, one that was reasonably open to it in the circumstances.

23. Similarly, there is only mention of one relationship in the Healey report. In context the relationship with Rabieyh. Further, there is reference again to only one relationship in the Proberts report. The relationship with Ahmad.

24. Further, I agree with Ms Clegg that the underlining in the Tribunal’s decision record was not meant to mislead the reader such that an inference could be drawn that the Tribunal was seeking to “manufacture” a situation to further any attempt at arriving at a predetermined outcome.

25. On any plain, and certainly on any fair reading, the Tribunal plainly emphasised the word “one” in its recording of what Mr Hamburger said to indicate its understanding, in context, of what was written.

26. This view of what the Tribunal did is further strengthened when regard is had to what relevantly occurred at the hearing. Mr Jones’ attack ignores that this specific issue was raised with the applicant at the hearing. In fact, the entire matter of what he told the psychologists and what they reported, the inconsistencies in their accounts of what he was said to have said to them, and that he had told one psychologist about one relationship only, and told the other about one relationship only, but the reference being to two different relationships, was squarely raised at the hearing (see T11, line 30 to T15, line 8).

27. What is also missing in the applicant’s attack now is that the Tribunal’s adverse finding as to his credit arising from the inconsistencies in the reports was not simply because of the inconsistencies. Importantly, it was the unsatisfactory nature of the applicant’s explanations. That is, the evidence he gave at the hearing, as to why there were inconsistencies, which was an important part of the Tribunal’s analysis (see [68] to [69] at CB 278).

28. While the Tribunal gave the applicant the benefit of the doubt in relation to his omission in the Healey report, on the basis that in the circumstances it was unreasonable to draw an adverse inference from what may have been asked in preparation of the Healey report, it was not convinced by the applicant’s explanations, given by way of his evidence, for his failure to mention to the “first” psychologist he consulted (Hamburger) that he had had a significant relationship with Rabieyh. A distinction between the two which was reasonably open to the Tribunal to make on what was before it.

29. In submissions Mr Jones drew attention to the Tribunal’s finding that no negative inference would be drawn from the failure to tell Mr Healey about the relationship with Ahmad. The Tribunal said that in the circumstances it would be unreasonable to do so. I understood the submission to be that if it were unreasonable to take that view in one instance, then it is unreasonable to do so in relation to the other.

30. In my view, this reveals two very important and relevant matters. The first, in part countering the applicant’s claim that the Tribunal acted unreasonably, being that the Tribunal was quite clearly mindful of the need to proceed in a reasonable and “fair” fashion.

31. The second is that the fact that the Tribunal gave the applicant the benefit of the doubt is itself relevant to the question as to whether it kept an open mind. Plainly, in this regard, it did so. It must be said that this is a good illustration of the difficulty faced by an applicant in relying only on the Tribunal’s decision record to show an apprehension of bias on the part of the Tribunal. Success in such cases is, of course, rare (see SCAA v Minister for Immigration [2002] FCA 668 per von Doussa J at [38]: “In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.”).

32. That the Tribunal then went on to find that another omission on the part of the applicant was significant is not weakened by the Tribunal’s earlier finding that it would not be reasonable to rely on another, different omission. The Tribunal gave reasons as to why the two situations should be distinguished. That another Tribunal member may not have made that distinction adverse to the applicant, that Mr Jones would not make the distinction, or even if the Court would not have made the distinction, is irrelevant. The issue is that it was reasonably open to this Tribunal to make the distinction, and to find adversely to the applicant. Its finding was not so unreasonable, or even unreasonable, such as to support an apprehension of bias.

33. The applicant also complains that the second base on which the Tribunal found the applicant not to be credible in his claim to be homosexual was its disbelief that as a homosexual in Lebanon he would not be aware that this was a criminal offence.

34. The applicant’s submission was that the Tribunal’s finding was without foundation in evidence as to the general level of awareness of statute law in Lebanon, either generally in the community, or amongst homosexuals in particular. This is a misrepresentation of the Tribunal’s actual finding.

35. This matter was discussed at the hearing (see T26, line 25 to T27, line 44). While the relevant statute law was raised (see T27, line 7), it is quite clear, as the Tribunal pointed out to the applicant (T27, line 32), that the critical point was not that he did not know the relevant article in the relevant statute, but that simply as a homosexual, who claimed to have entered into two long term homosexual relationships in Lebanon, and who claimed to have been persecuted because of this, he would not know that his sexual conduct was illegal in Lebanon.

36. The Tribunal’s finding in this regard ([71] at CB 279) was clearly open to it. I cannot see that any apprehension of bias would arise in these circumstances.

37. In submissions before the Court Mr Jones took particular issue with the Tribunal’s use of the word “surreptitiously” in the following: ([71] at CB 279 to CB 280):

    “… The Tribunal considers that, if the applicant was homosexual and had been living in Jounieh and attending the gay nightclub surreptitiously he would know why he was attending surreptitiously i.e. because it was against the law and people who attended a gay nightclub could be targeted by the authorities.”

38. Mr Jones referred to what is set out in the transcript (T20, line 1 to T20, line 6):

    “[THE TRIBUNAL]: It doesn’t sound like you’re very fearful of persecution going out to gay nightclubs two or three times a month for four years.

    THE INTERPRETER: For four times, but I didn’t go there all the times, not all the times and I didn’t stay at the nightclubs for a long time because I didn’t have the money to buy that many things, so I didn’t stay for too long.”

39. His submission was that the Tribunal misrepresented the applicant’s evidence, and did not consider the evidence before it. The Tribunal’s finding that the applicant attended nightclubs “surreptitiously” is contrary to the evidence. The complaint was that the applicant gave evidence that he attended the gay nightclub, but did not stay there for long because he did not have any money. There was no mention of attending surreptitiously. Thus, this was said to be unreasonable and to lead to an apprehension of bias.

40. In answer Ms Clegg referred to T26, line 34, that part of the hearing dealing with the applicant’s knowledge as to whether homosexuality was illegal in Lebanon:

    “[THE TRIBUNAL]: Is being gay against the law?

    THE INTERPRETER: No, it’s not against the law. It’s only us Muslims who suffer from it, because Christians can go whenever they want and wherever they want.”

1. The submission was that the Tribunal, while using the word “surreptitiously”, which was its own word, was entitled to use it because of the applicant’s evidence as to the restrictions suffered by Muslims who were homosexuals. That is, unlike Christians, he as a homosexual, and as a Muslim, could not go wherever and whenever he wanted. This evidence, it was said, entitled the Tribunal to use the word “surreptitiously”.

2. In my view, the Tribunals’ description of the applicant attending nightclubs “surreptitiously” must be seen in light of the totality of the applicant’s evidence. The applicant gave evidence that he attended gay nightclubs. But it was clear that he did so in circumstances where he would only go with Rabieyh (T19). Prior to that, he only went to one gay nightclub because he was fearful of the “government” because he was “underage” (T20). He did not stay long because he did not have much money (T20). As a homosexual, and a Muslim, he was restricted as to where, and when, he could, in context, move around as a gay (T26).

3. This latter evidence by the applicant was given in the context of a discussion with the Tribunal about his capacity to live openly as a homosexual. The Tribunal specifically raised with the applicant (at T26, line 10) that even if he were fearful of going back to Denbo (his home area) that he could go back to Jounieh, where he had lived, and where (T26, line 12):

   “… you were able to express your homosexuality in the past there without undue influence. [In context this appears to mean undue interference.] You were able to go out nightclubbing on a regular basis, have a relationship…”

4. It was in this context that the applicant then went on to give evidence about the restrictions on his lifestyle and movements. These were that his father would “kill” him if he found he was gay, and the more general lifestyle “restrictions” in Lebanon because he was a Muslim, and a homosexual.

5. Even further, and squarely in the context of the applicant’s knowledge, or otherwise, of the relevant law, the applicant said (T27, line 41):

   “You know I’m not old enough to know about these things [the law] and my life was secret in Lebanon”.

6. In my view, given the above, there was certainly sufficient in the applicant’s evidence to ground the Tribunal’s consideration that he went about with his “secret” life, and included in this was attending nightclubs “surreptitiously”.

7. This is reinforced by what is also relevantly contained in the Hamburger report. He reportedly told Mr Hamburger that he needed to hide all homosexual activities from his family and “other people (community members)” (CB 40.5).

8. In all, the well informed lay observer would not reasonably apprehend bias on the basis of the Tribunal’s finding relating to the applicant’s claimed lack of knowledge as to the relevant legal situation affecting homosexuals in Lebanon, nor its description of his lifestyle in general, and attendance at nightclubs in particular, as being done “surreptitiously”. Nor is it so unreasonable to have so found such that no reasonable decision maker would have come to this conclusion.

9. The third area of attack by the applicant was on the Tribunal’s finding that the applicant delayed, from his arrival in Australia on 20 October 2008, until 2 February 2009 before he made his protection visa application.

10. The submission was that, in the circumstances of the intervening holiday period, his lack of English, and cultural factors, this finding by the Tribunal is: “not supported by the facts”. Therefore, it would be seen to be unreasonable and to support an apprehension that the Tribunal went out of its way to find elements negative to the applicant to support its predetermined view of his application.

11. It must be said that the often observed reliance by Tribunal members (and even more so in the case of delegates) on what could be said by others to be relatively short periods, to make findings of delay in seeking protection, and therefore a factor adverse to an applicant’s claims, is of concern.

12. However, it is the case that it is not for this Court to substitute its own findings of fact in this regard. The Tribunal’s finding, while some other Tribunal member may well have come to a different conclusion, was open to it on what was before it. The period, in the circumstances of this case, is not so short as to make it so unreasonable as the applicant argues, or even unreasonable. While the factors cited by Mr Jones may exist, equally the applicant did not arrive in Australia without the capacity to seek advice as to how to make his application.

13. It was the applicant’s evidence that when he arrived in Australia he was taken care of by “Yuseff”, who also gave evidence on the applicant’s behalf at the Tribunal hearing (CB 192). Even noting that the applicant stayed for two months with his brother on arrival, a brother who did not know of his homosexual orientation, “Yuseff”, on the applicant’s evidence “took care” of him on arrival, knew of his sexual orientation, at least from when he moved in with him, and took him to nightclubs (T17, line 40 to line 46).

14. But even if that were not the case, I agree with Ms Clegg that that alone would not impugn the Tribunal’s decision with jurisdictional error, particularly on the ground of an apprehension of bias. Clearly, something more is required to ground the apprehension than what may be considered a finding that could go either way. Nearly three and a half months delay may be considered by some to be a “hard” finding, but in the circumstances that falls far short from then saying it reflects a willingness to find any excuse to reject the applicant’s claims.

15. This is particularly so because, as Ms Clegg submitted, the Tribunal’s finding in this regard did not stand alone. The Tribunal made it very clear that there was no one element in its analysis that was determinative. It was the cumulative effect of its stated concerns that led to its rejection of the applicant’s claim to be a homosexual. It was the accumulation of the inconsistency in his claim, his stated ignorance of the prohibition against homosexuality, and the delay in making the application that, combined with the unsatisfactory nature of his explanation, led to the Tribunal’s critical finding.

16. The second limb of the applicant’s attack on the Tribunal’s treatment of the psychologists’ reports sought to distinguish, or contrast, the Hamburger and Healey reports from the Proberts report, and further to argue that the Tribunal should have, but did not, consider the expert “opinion” provided by Proberts. This was said to be so unreasonable that an apprehension  of bias could be made out.

17. Mr Jones characterised the Hamburger and Healey reports, of what the psychologists said was told to them by the applicant, as just a summary of his history and should not have been relied upon to the extent that they were by the Tribunal. This was to be contrasted with the Proberts report, which was prepared by a “forensic” psychologist, who gave an “expert opinion”.

18. It must be said that one immediate response to this submission is, if these reports were of no, or of so little, value, even on a comparative basis, why did the applicant and his adviser waste the Tribunal’s time in submitting them? In any event, this aspect of the submissions has already been dealt with above.

19. What is left, therefore, is the complaint that the Tribunal ignored the expert opinion of a forensic psychologist who opined that the applicant was genuine in his claim to be homosexual. Further, that the Tribunal’s failure to rely on, or even consider this opinion, and to find that the applicant was not genuine in his claim, was so unreasonable that it gives rise to an apprehension of bias.

20. The applicant seeks to draw an analogy with, and rely on, Fuduche. This case, considered in 1993, dealt with an application made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”), seeking review of a decision of a delegate of the then Minister for Immigration. The principal ground argued before the Court was that the decision was unreasonable in the Wednesbury sense, because the decision maker failed to take relevant matters into account.

21. Mr Fuduche had applied for permission to remain in Australia permanently under relevant migration provisions that enabled those who satisfied the requirements of a “special need relative” of an Australian citizen to do so. In that case the Australian citizen was his sister who, amongst other things, suffered from severe depression.

22. I note the following relevant circumstances:

    1)A consultant psychiatrist, Dr Kaplan, provided a medical report on the sister’s medical condition. In it he expressed an “opinion” about the cause of her medical condition and the importance to her mental and emotional health of her brother, Mr Fuduche.

    2)This was seen to be: “… expert evidence from a highly qualified specialist that the relationship (with her brother) has been of ‘significant’ benefit to her medically, and that its disruption would be likely to affect her depression adversely…” (at 522).

    3)The information for this report was obtained to a large extent before the migration issue arose (at 518).

    4)The decision record (in the circumstances, a document setting out, with reasons, recommendations to the decision maker) contained no indication that any doubt was cast on the sister’s account of events leading to her depressive state. An account accepted by professional psychiatrists, including Dr Kaplan (at 520).

    5)No mention was made in the decision record of relevant material provided by the sister’s husband (at 521).

    6)In the circumstances there was no basis on which the medical evidence would be rejected (at 522).

    7)“Where, upon a medical issue, medical science is unable to offer a conclusion on the probabilities, it may sometimes be open to a lay decision-maker to rely on ordinary human experience in order to bridge the scientific gap to a practical decision. But where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of his own: see Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564, 569-570; and cf Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-415, 430. In the latter case, Brennan J said (at 430)

    ‘Although s.120(3) entrusts the determination… to the decision-maker, the decision-maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner…’”

    8)The decision record (decision maker) accepted Dr Kaplan’s opinion that the relationship between the two siblings played an integral part in her emotional stability and the disruption of the relationship “will” have an adverse affect on the sister (at 523).

    9)Notwithstanding this, the decision maker preferred his own speculation over the clearly articulated “professional opinion” (at 523).

    10)The reasoning employed in the decision was internally inconsistent (at 525).

    11)The rejection of the expert medical opinion was not based on any contrary expert opinion (at 525). It was based on (in context) the decision makers own medical analysis as to the patients condition (at 526 to 527).

    12)See also the extract from Fuduche reproduced at [74] above.

23. What needs to be borne in mind is that the ground as pleaded asserts an apprehension of bias on the basis that the Tribunal’s treatment of the cogent professional evidence supporting the applicant’s claims, in the absence of any (“professional”) evidence to the contrary reveals an unwillingness or inability to properly assess the evidence before it.

24. There are, of course, a number of relevant clear differences evident in the circumstances of the current case and those in Fuduche. Putting aside the obvious that that was a case proceeding under the AD(JR) Act and involving a delegate’s decision, the medical opinion in Fuduche was based on observation and information prior to the migration issue arising. In the current case, the entire basis for the Proberts report and “opinion” was specifically created for the purpose of supporting the application for a protection visa.

25. Further, there was other evidence and material before the Tribunal in the current case to cast doubt on the applicant’s claim to be a homosexual. There was nothing in Fuduche to cast doubt on Dr Kaplan’s opinion. In fact, that opinion was otherwise accepted by the decision maker which made the subsequent decision inexplicable.

26. A further important point of departure between the two sets of circumstances is that in the current case the Tribunal did not accept the applicant’s claim to be homosexual. It had regard to other evidence for this. The initial acceptance of Dr Kaplan’s opinion was a critical part of the Court’s finding in Fuduche that the delegate’s approach fell into the rare category of cases where the Wednesbury principle of unreasonableness applied. That is, the delegate accepted the medical evidence, but then inexplicably proceeded to substitute his own medical assessments, and to also ignore other relevant evidence which had also not been otherwise rejected. In these circumstances, it was said that no reasonable person could have come to the delegate’s conclusion. It was so unreasonable that it went beyond just an error in fact finding. Such an error, of course, on its own, would not have disclosed legal error.

27. These circumstances do not exist in the current case. There is a distinction to be drawn with Fuduche. The decision maker in that case accepted the expert medical opinion as to the sister’s severe psychiatric and medical condition, and the impact on that condition if she were deprived of the physical presence of her brother. What was said to be so unreasonable was not necessarily the rejection of that opinion of itself, but the subsequent lay analysis of the sister’s medical condition to produce a different medical opinion without satisfactory explanation or basis, that the sister’s condition was not so severe, and that she could cope with the absence of her brother by relying on other support. This was in circumstances where the medical opinion had already been accepted, and there was clear evidence (not rejected) that this other support would not be sufficient.

28. The current case does not contain these features. In my view, there is a distinction that may be drawn between observations made by a psychologist which lead to conclusions within a psychologists area of expertise, for example, as in the current case, that an applicant has, or is likely to have, gender identity disorder or post traumatic stress disorder and suffers from depression or anxiety, on the one hand, and an opinion on the other that a person has a particular sexual orientation, for which there is no evidence before the Court to say that this is a medical or psychological condition.

29. In the current case the applicant may indeed have exhibited symptoms of anxiety and depression in the session with Mr Proberts. It clearly falls within the expertise of Mr Proberts as a psychologist to make that observation, and assessment, and to give an opinion on those matters, and, indeed, to prescribe treatment.

30. But the ultimate question of the resolution of the issue of the applicant’s sexual orientation, while it may be influenced, or to some extent informed by, these matters, in my view falls outside a distinct area of relevant expertise. There is no evidence before the Court that sexual orientation is a psychological condition and to be treated in the same way as, for example, stress or anxiety.

31. Mr Proberts opined that the applicant was truthful in his claim to be a homosexual. This opinion, while presented or “packaged” as a psychological assessment given in the same way as the opinion on gender identity disorder or posttraumatic stress disorder, is not. I cannot see that homosexuality is an illness or a psychological disorder.

32. In these circumstances I also cannot see that it was unreasonable of the Tribunal to consider, and take into account, the applicant’s own evidence of his sexual history, experience and knowledge, and to come to a different view as to his sexual orientation.

33. However, it may be that self awareness as to sexual orientation, and self-identity, can be said to involve some psychological processes, which are susceptible to observation by a psychologist. To a significant point it was this observation of the applicant in the session with him that led to the Proberts opinion as to his being genuine in his claim to be homosexual.

34. But even if this aspect of the opinion can be said to be encompassed within the ambit of an “expert” opinion, it was not so unreasonable, in the circumstances, for the Tribunal to have come to a different conclusion. While equally it was open to the Tribunal to give some weight, or even great weight, to that “additional” aspect of the Proberts opinion, the weight to be accorded to the material before it is for the Tribunal to assign.

35. Relevantly, it was not unreasonable, or so unreasonable in the circumstances, of the Tribunal to prefer its own analysis as to the applicant’s claimed homosexuality. The well-informed lay observer would not reasonably apprehend bias in its doing so where it gave reasons which were cogent and reasonably open to it to make. Quite clearly, both these elements were missing from the delegate’s decision in Fuduche.

36. The Tribunal was not seeking to inexplicably or unreasonably substitute its own medical or psychological assessment for that of a psychologist’s expert opinion on a matter within the area of expertise. Nor, importantly, had the Tribunal (as had the delegate in Fuduche) acted unreasonably in first accepting the expert opinion in its entirety and without qualification, and then inexplicably proceeded to conduct its own psychological assessment of the applicant. In Fuduche the delegate made judgements about the psychological impact on the applicant’s issues of the absence of her brother, and her capacity to cope in his absence, without any evidence whatsoever on which to base this judgement, and in the face of ignoring other crucial evidence which was blatantly contrary to the judgement reached.

37. On my understanding of the judgment in Fuduche, it was not so much the ignoring of an “expert” opinion in itself that was said to be so unreasonable, but all of the circumstances in which this conduct occurred. It was the combination of all of the factors above that made the delegate’s decision in Fuduche so unreasonable that an apprehension of bias arose. None of these elements, let alone the combination of elements, exist in the current case. The applicant’s reliance on Fuduche does not succeed.

38. The applicant also relied on Ex parte H. Here, the test is clearly not the Wednesbury test, but as set out in particular at [27] – [30], and as further illuminated by the other authorities as set out in the Minister’s written submissions (see Ex parte H at 434-4; Epeabaka at [15] and per Kirby at [53] – [65], [89] – [95]; NADH per Allsop J at [21]; SZJKU per Emmett J at [36]).

39. The question, then, is: would the hypothetical fair minded well informed lay observer reasonably apprehend, on an objective test of possibility, not probability, that the Tribunal did not bring an open mind to the issue of the applicant’s claimed homosexual orientation? That is, that the inference could be made that the Tribunal was predisposed to a particular view and that there was nothing the applicant, or even Mr Proberts, could do to change the Tribunal’s mind?

40. As set out in Ex parte H, the test as formulated requires the fair minded lay observer to be properly informed, amongst other things, of the matters in issue and the conduct which is said to give rise to an apprehension of bias.

41. In the current case, the matter in issue is the truthfulness, or credibility, of the applicant’s claim to be of homosexual orientation. The conduct which the applicant says give rise to the apprehension of bias is the Tribunal’s failure in, or omission from, its reasoning to take into account, or to consider, the Proberts opinion.

1. In this case, as Ms Clegg submitted, the Tribunal was not bound to accept uncritically the conclusions articulated, for that matter, in any of the psychologists’ reports. She relied on Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 (“Algama”) per North J at [130]:

   “The applicants also relied upon s 430(1)(c) to argue that the tribunal failed to set out its finding on the validity of the opinion of the psychologist, and that was a material question of fact. Again the tribunal did explain its reasons for rejecting the opinion of the psychologist as to the linkage between the PTSD and the alleged persecution. The reason was that the investigations conducted by the tribunal persuaded it that the events alleged did not happen. The decision of the tribunal clearly disclosed that it found against the linkage expressed by the psychologist.”

2. There are a number of matters that require note between the current case and the circumstances in Algama.

3. First, while the apprehension of bias was raised as a ground in Algama, as in this case, it was not raised in relation to the relevant psychologist’s report ([51] at (2), [98] to [117]). The attack on the treatment of the psychologist’s report in Algama was pleaded and argued as a failure to comply with s.430 of the Act ([118] to [133]) and a contention that the Tribunal failed to give proper, genuine and realistic consideration to the issues raised in the psychologist’s report ([134]). Further, that the alleged failure to consider the report was a constructive failure to exercise jurisdiction ([135]). This is not how the complaint currently before this Court has been pleaded or argued.

4. Second, in Algama the attack on the Tribunal’s reasoning, in relation to the psychologist’s report and the applicant’s evidence, was that the Tribunal had not “adequately” addressed the evidence. As was subsequently found, the Tribunal had: “… clearly considered the psychologist’s report and indeed accepted the diagnosis that the applicant suffered PTSD, but rejected the psychologist’s opinion as to the cause of the PTSD” (at [140]).

5. In the current case, there is nothing on the face of the Tribunal’s account of its reasoning to show that the Tribunal actually considered, and rejected, this part of the Proberts report. That is, the part headed: “My Opinion”.

6. What is set out at [130] of Algama must therefore be seen in light of what is subsequently said at [140]. That is, that while it may be said that a Tribunal does not have to uncritically accept what is stated in a psychologist’s report, this is in circumstances where not only was the report itself closely considered, but the Tribunal actually accepted a part of the conclusion made by the psychologist.

7. Ultimately, I am required to assess the applicant’s complaint of an apprehension of bias, as against the relevant test as explained in the relevant authorities above. The complaint, at its highest, is that the Tribunal failed to have regard to the concluding “opinion” in the Proberts report. This was an “expert” opinion. The unwillingness or inability of the Tribunal to “properly” assess this evidence would give rise to an apprehension of bias.

8. In my view this complaint does not succeed.

9. First, the expert opinion was only a part of the evidence before the Tribunal. The claimed failure by the Tribunal to consider this particular piece of evidence must be considered in light of how it approached the totality of the evidence before it, and its conduct, behaviour and thought processes in gathering that evidence.

10. Second, the Tribunal rejected the applicant’s central claim to be of homosexual orientation largely based on its assessment of the evidence given at the hearing before it. Any plain reading of the transcript would reveal to the well informed lay observer that there was no conduct or behaviour on the part of the Tribunal such that, reasonably, a possibility of a closed mind could be said to have been revealed.

11. While it may be that parts of the Tribunal’s questioning could be said to be robust and even forthright (see, for example, T21), such conduct, and in the context of what was discussed, does not sustain a finding of apprehended bias (Ex parte H at 434-4; Epeabaka at [15] and per Kirby [53] – [65], [89] – [95]; NADH per Allsop J at [21]; SZJKU per Emmett J at [36]). Nor, for that matter, would the hypothetical lay observer find any imprudence or intemperance in the Tribunal’s conduct at, and of, the hearing.

12. The Tribunal’s alleged impugned conduct, that is, its omission or its failure to take into account the Proberts opinion, must also be seen in light of the other evidence before it which formed the basis for its conclusion that the applicant was not of homosexual orientation.

13. The Tribunal did not ignore the Proberts report as a whole. There were clear references at the hearing to the “third” psychologist, in context Mr Proberts (see T13, line 29, T13, line 37).

14. Further, at the hearing the applicant’s adviser relevantly drew the Tribunal’s attention to the Proberts report, and to the fact that a clinical assessment had been conducted, and that an unequivocal opinion had been provided about the applicant’s sexual orientation (see T32, line 9):

    “[THE TRIBUNAL]: Mr Isa [sic: Issa], was there anything you wanted to draw my attention to?

    MR ISA: Member, just a couple of things if I may. Just the decision record, I don’t have the page number, but it’s the second last page, just above the state protection, she spoke about state protection, just above that, she makes a comment that she said:

    With respect, these professionals are reporting on information provided to them by the applicant and their observations about his symptoms.

    I find that quite erroneous, member, because psychologists don’t merely report on information provided to them. They conduct their own clinical assessment. They provide an opinion and a diagnosis as well. Chris Proberts and Mr McDonald have gone a lot further to identify that there could be a cross gender issue and both of them have provided unequivocal opinion about the applicant’s sexual orientation…”.

    [The reference to “decision record” and “she” is clearly a reference to the delegate and her decision record. There is nothing in the material before the Court to show that any report had been received, or been submitted to the Tribunal, from “Mr McDonald”. It may be that this was another mistake by the agent to add to the erroneous submission that the delegate had not interviewed the applicant: see CB 171 at item 3.]

15. Importantly, the following exchange also occurred at the hearing (T33, line 4):

    “Mr ISSA: Just one other thing, member, if I can, sorry to interrupt you, Chris Probert, who is continuing to follow this case, would be more than happy to discuss this issue with you if you saw the need, member.

    THE TRIBUNAL: Yes. No, I don’t see the need at this stage. I’ve had regard to his report.” [Emphasis added.]

16. Further, it cannot be said that the Tribunal disregarded or overlooked the Proberts report as a whole when it came to ultimately consider its decision. It specifically mentioned the report when setting out the applicant’s “Claims and Evidence”. It attached the report to its decision record (see [22] at CB 272 and “Attachment D” to the decision).

17. The Tribunal also made general reference in its “Findings and Reasons” to the “psychologists’ reports” (see [70] at CB 278 to CB 279). Particularly given what follows in the decision record, this was a clear reference to all three of the reports. The Tribunal specifically notes what the applicant told: “… Mr Proberts, about Ahmad”.

18. It cannot be said, therefore, that the Tribunal disregarded, or overlooked, the Proberts report as a whole.

19. Nor that it overlooked the Proberts opinion. Mr Proberts was clearly acting within his area of expertise in giving the opinion that the applicant is: “highly likely to be suffering Gender Identity Disorder and Posttraumatic Stress Disorder”. This was a part of the opinion now relied on by the applicant. The Tribunal clearly considered and addressed this matter ([76] at CB 280).

20. In my view, in all the circumstances a clear line can be drawn from the opinion in the Proberts report to the Tribunal’s consideration of the applicant’s claims.

21. The Proberts report, including the opinion was dated 30 April 2009 (CB 96). It was submitted to the Minister’s department under cover of a letter from the applicant’s adviser dated 4 May 2009 (CB 95). The delegate had specific regard to the Proberts report and the “Gender Identity Disorder” matter (CB 131.10). The delegate’s decision record was clearly before the Tribunal (CB 100 and [17] at CB 270).

22. The adviser’s submission of 20 August 2009 to the Tribunal (CB 171) made reference, albeit almost as an afterthought, to the “gender identity issue” (CB 178.3), and to “both” the treating psychologists. In context, this was Mr Hamburger (CB 42) and Mr Proberts. There was no reference to this matter in the Healey report. It should be noted that the Hamburger report was ambivalent as to whether the applicant suffered from this disorder (CB 42.4 at item 9.2). The reference in the Proberts “opinion” to “gender identity disorder” is the only reference in any of the three reports which asserts the high likelihood that the applicant has this condition.

23. In all, therefore, it cannot be said that the Tribunal had no regard to the Proberts opinion. In my view, it had regard to that part of the opinion which fits squarely within the province of an expert expression by a psychologist.

24. The applicant’s attack is that the Tribunal should also have had regard to that part of the opinion which said that the applicant was genuine in his claim to be a homosexual. The absence of any specific reference to this particular part of the Proberts conclusion in the Tribunal’s reasoning is said to indicate that the Tribunal failed to have regard to it.

25. The absence of specific reference to this aspect of the Proberts opinion from the Tribunal’s decision record, or more appropriately its analysis, does not reveal error. Section 430 of the Act only requires the Tribunal to set out the evidence and materials on which its findings of fact are based. The Tribunal did not reject the applicant’s claim to be a homosexual because of, or based on, the Proberts opinion. As such it is not surprising that, in this sense, no specific reference is made in that part of the Tribunal’s relevant analysis.

26. In that sense also, and given the above, I agree with Ms Clegg’s ultimate submission that no apprehension of bias, or for that matter other error, is revealed in the Tribunal simply making a finding of fact as to the applicant’s sexual orientation based on relevant evidence before it, including the applicant’s own evidence. Such a finding, with regard to what is set out above, was reasonably open to the Tribunal to make on what was before it. It gave reasons for this.

27. In all the circumstances, and for the reasons set out above, I cannot see that the well informed lay observer could reasonably apprehend that the Tribunal did not bring an open mind to the question of the credibility of the applicant’s claim to be homosexual, merely because there was an opinion to the contrary before it. Nor even that it could be said for that matter, that it was so unreasonable in the Wednesbury sense because of this reason.

28. The question as to the credibility of the applicant’s claim is one ultimately for the Tribunal. It said it had regard to all of the Proberts report. Ultimately, it preferred its own assessment of the applicant’s evidence before it, rather than that of Mr Proberts, on the question of the applicant’s claimed sexual orientation. Ground two is not made out.

Conclusion

1. With the assistance of legal representation, the applicant has put two grounds before the Court. Neither ground is made out to show jurisdictional error on the part of the Tribunal. The application is therefore dismissed.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  D Nestor

Date:  18 May 2010