SZOIE v Minister for Immigration - [2010] FMCA 825

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOIE v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 825

MIGRATION – RRT decision – Lebanese man claiming persecution as homosexual – Tribunal’s assessment of delays in claiming protection and actions when seeking prospective spouse visa – whether findings based on probative material and logical reasoning – whether unstated evidence was relied upon – jurisdictional error not shown – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, (2010) 266 ALR 367

Applicant:

SZOIE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG779 of 2010

Judgment of:

Smith FM

Hearing date:

20 October 2010

Delivered at:

Sydney

Delivered on:

20 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr M Jones

Solicitors for the Applicant:

Michael Jones, Solicitor

Counsel for the First Respondent:

Ms A Mitchelmore

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG779 of 2010

SZOIE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a young man who is a national of Lebanon. He visited Melbourne, where he has at least two uncles, between March and May 2007, and he arrived again at the end of April 2009. On 13 July 2009 an application for a protection visa was lodged on his behalf by a solicitor in Sydney.
In his application, the applicant claimed to fear return to Lebanon on the ground that he had suffered persecution from his family as a homosexual, and feared that if he returned:
I could not explain my situation to anyone in Lebanon because it is against the law and the Islamic Shariaa and community. They can punish me by killing me and there is no one who can help me through this.
The application attached a report from a psychologist to whom the applicant had been referred by his solicitor, which accepted a history that the applicant had suffered some experiences which were “traumatic and life threatening” before coming to Australia, including being “attacked many times and discriminated against many times”. The psychologist said that he was trying to help the applicant “to deal with his anxieties and accept himself the way he is”.
A delegate refused the application on 26 August 2009. The delegate did not accept that the applicant had a genuine fear of harm, nor that there was a real chance of persecution occurring if he returned to Lebanon. The delegate referred to some matters raising doubts about the claims, and also seems to have doubted a risk of persecution if the applicant was homosexual and returned to Lebanon.
The applicant continued to be assisted by his solicitor on an appeal to the Tribunal. He attended a hearing in Melbourne on 16 November 2009, with his solicitor attending by way of telephone connection. A transcript is in evidence, and I have been referred to some relevant passages. It appears to me that the Tribunal’s description of the hearing at various points in its statement of reasons is fair and accurate.
In the course of the hearing, the Tribunal questioned the applicant about his history in Lebanon before coming to Australia for the first time in 2007. The applicant said that he had been working in another uncle’s men’s clothing shop, and had commenced at least two homosexual relationships which he had tried to keep secret. He told the Tribunal that there had been one occasion, however, where his father had “tied him up, hit him and burned him with a cigarette” after he returned home very late after a night out with a friend. He also said that there had been many other times when his father had made verbal attacks, and pressured him to get married, because he was not acting like a man.
The Tribunal also questioned the applicant about events during his first visit to Australia, in which he had been introduced to an Australian woman related to one of his uncles, and to whom he became engaged to marry. A prospective spouse visa had been lodged in relation to that relationship, which was supported by evidence of a proposed wedding ceremony in November 2007, and photographs of an engagement party held before he returned to Lebanon, and other material.
The Tribunal also had notes taken of an interview conducted by an officer of the Department of Immigration with the applicant by telephone in July 2007, after his return to Lebanon. The applicant told the officer that he had enjoyed the company of his fiancée, that they were “in agreement and harmony” throughout their time together, that they planned to start a family and “will have kids to make their family complete”, and that “he was not thinking about marriage but he saw [his fiancée], liked her, fell in love with her. His father told him he was still young for responsibility but [he] is determined and he is up to the responsibility”. The officer interviewing the applicant recorded a conclusion:
Based on:
-applicant’s statements at interview,
-the confident, straight‑forward and honest manner in which he answered questions over the phone,
-the photographic evidence which shows a happy, close couple at their engagement party and on different occasions, and
-the documents on file,
I am satisfied that this is a genuine, long‑lasting relationship and that applicant meets criteria for 300.211., 300.215 and 300.215 [sic].
The Tribunal also had evidence that about eight days after the interview the applicant had lodged a letter written in English, in which he said:
I, the undersigned, [applicant], declare that I broke off with the sponsor as there is no harmony between us to make a family in the future. In this way, I request the withdrawal of my application and I no longer have any relationship with her.
The applicant explained these events to the present Tribunal by saying that he had been “desperate to escape his father’s pressure. His father thought that he would, if he didn’t love [the woman] now, would eventually fall in love”. He said that when his male friend returned to Lebanon and learned about the spouse visa application, the friend was “extremely upset”, and he withdrew the application. He told the Tribunal: “the only reason he told the departmental officer who conducted the interview that he loved [the woman] was so that he could get a visa for Australia”.
The Tribunal also questioned the applicant about his further life in Lebanon before returning to Australia, and about the events leading to the lodgement of the protection visa application. The applicant indicated that he returned to live with his Australian uncle on the second visit, but later left that accommodation. He was now living with a person with whom he did not have a sexual relationship, but he had been to gay nightclubs in Melbourne. He later presented photographs which were taken at the Gay Mardi Gras in Sydney.
Following the hearing, the Tribunal sent a letter to the applicant and his solicitor, inviting his comments on information in relation to the applicant’s visitor visa applications and his prospective spouse application, which might reflect on the truth of his claimed history. It also invited comments on some inconsistency in his claimed mistreatment by his family in Lebanon.
The applicant forwarded a statutory declaration seeking to explain all of his conduct by reference to his being a “closet gay”, living in “an extremely conservative Muslim background” and facing an “extreme predicament” when pressured to marry. His statutory declaration concluded:
14.The Tribunal has put to me in correspondence dated 5 January 2010, what it considers adverse information pertaining to the issue of my engagement. I do not regard this information as being adverse but in light of my situation and the requirement for strict adherence to family, tradition and religion, marriage seemed at the time the only viable option I could exercise. My own personnel experiences serve to demonstrate the struggles which a homosexual Muslim mans faces when reaching marital age and in trying to avoid the stigma associated with being gay. It was only my inner strength that I untimely made the decision that I do not want to proceed with the marriage because such a relation would only be based on falsehood derived solely from fear rather than true love.
The applicant also requested a further hearing to address the Tribunal’s concerns, and this was held on 15 March 2010 under arrangements which were the same as previously. At the hearing, the matters which the Tribunal had put to the applicant in its letter were addressed in further oral evidence from the applicant.
The Tribunal made a decision on 22 March 2010, affirming the delegate’s decision. After recounting the evidence and history of the matter, the Tribunal accurately summarised the applicant’s claims at the commencement of its “Findings and Reasons”. It then summarised its conclusion and its reasons:
68.However, the Tribunal notes a number of credibility problems including doubts about the applicant’s failure to seek protection during his first visit to Australia, his delay in seeking protection during his second visit to Australia, his relationship with [the woman] and the apparent inconsistency between the account given to his psychologist and the account he gave the Tribunal about the extent of serious harm he has suffered as a result of being homosexual. Each of these concerns is discussed separately in paragraphs 69 to 101 below. Individually each of these problems raises some doubt about the applicant’s credibility. Their cumulative effect has diminished his credibility to the extent that the Tribunal is not satisfied of the truth of any of his claims including that he is a homosexual, that he has been persecuted as a homosexual and that he faces a real chance of persecution in the future for being a homosexual. The Tribunal will now consider each of those credibility problems.
Under four headings, the Tribunal then explained the four elements which cumulatively had left it dissatisfied with the truth of all of the applicant’s refugee claims.
In relation to the applicant’s failure to seek protection during his first visit to Australia, the Tribunal considered whether there was “a plausible reason” why the applicant did not seek protection “as soon as possible”. It identified the applicant’s evidence explaining this. However, it concluded:
72.The Tribunal considers that, if the applicant had endured years of physical abuse and torment, he would have, despite being under his uncle’s close scrutiny and worried, sought protection during this first visit. The applicant’s failure to seek protection during his first visit to Australia is not, however, determinative of the review. If it was the only anomaly in his case it would not have formed the basis of a decision to affirm the delegate’s decision to refuse the visa. However, when combined with the other concerns discussed in these reasons, the failure to seek protection at the first available opportunity and the lack of a cogent reason for that failure both diminishes the credibility of the applicant’s claim to have been genuinely fearful over that period (March‑May 2007) and also undermines the credibility of his claims to have suffered persecution in Lebanon and more broadly his claim to be homosexual.
In relation to the applicant’s delay in seeking protection during his second visit, the Tribunal identified the chronology leading to the lodgement of the visa application. The applicant had visited a solicitor in Sydney to get advice about his situation about one month after his arrival. He had then taken steps to obtain the psychologist’s report, and then lodged the protection visa application. The Tribunal noted that the applicant had claimed not to have returned to Australia with an intention to apply for a protection visa, and noted that he had given no reason why he had not intended to apply for protection.
The Tribunal then said:
75.The Tribunal notes that he claims to have suffered repression and abuse since he was 17 or 18 years of age (2002/03). He had experienced freedom in Australia (in this context the Tribunal notes that, at the first hearing, the applicant told the Tribunal that he had, during his first visit to Australia, realised that he could have a free life in Australia). He was subjected to further abuse following his return to Lebanon after his first visit to Australia (see the statement at paragraph 17 above in which he states that “the problems with the family did not stop because I did not get married”). The Tribunal considers that, by the time he arrived in Australia for his second visit, applicant could have, (if his claims of persecution and fear were true) lodged an application immediately or within a few days of his arrival, despite his uncle’s vigilance. It has not been suggested that he was imprisoned by his uncle or otherwise prevented from leaving the home. A person who had endured the physical, psychological and emotional pain he claims to have suffered purely as a result of his sexual preference would have made inquiries of the immigration authorities about what avenues he could pursue to seek haven from persecution.
76.Noting his relative youth, the Tribunal has considered whether it has assumed too high a level of rights consciousness in the applicant and whether he might not have been aware that he could apply for protection on the basis of his homosexuality. However, the Tribunal recalled that his reason for not contacting the United Nations High Commission for Refugees in Lebanon was that he did not want to risk it as Lebanon is a small country and people, including his family, would find out if he applied for protection. He did not seek to explain the failure to lodge during his first trip and delay in lodgement during the second on the basis of his ignorance of his right to lodge an application for a protection visa.
77.Even accepting that he sought advice from his migration agent in early June 2009, the applicant’s failure to lodge an application until 13 July 2009 casts further doubt on his claim to have been fearful of persecution in Lebanon. The applicant’s delay in seeking protection until 13 July 2009 is, however, also not in itself determinative of the outcome of the review. If it was the only anomaly in his case it would not have formed the basis of a decision to affirm the delegate’s decision to refuse the visa. However, when combined with the other concerns discussed in these reasons, the delay in seeking protection until 13 July 2009 and the lack of a cogent reason for that delay diminishes the credibility of the applicant’s claim to have been genuinely fearful over that period and also undermines the credibility of his claims to have suffered persecution in Lebanon and more broadly his claim to be homosexual.
In relation to the applicant’s relationship with his fiancée, the Tribunal noted the chronology of the prospective spouse visa, the interview with the Departmental officer, and the applicant’s letter withdrawing that application. The Tribunal identified the evidence given by the applicant about those events and concluded:
85.The Tribunal acknowledges that applicant is now claiming that his relationship with [the woman] was all a charade he merely went along with to satisfy his family. The Tribunal also acknowledges that, whilst normally making a false statement to induce the Department to grant a visa it would not have otherwise granted would undermine an applicant’s credibility, a preparedness to lie to get a visa is not necessarily a basis for an adverse finding on credit in a claim for asylum if it is accepted that the lie was resorted to as a means of escaping persecution. However, the Tribunal considers that the applicant’s responses (no challenge has been made to the accuracy of a transcript of the interview) demonstrate genuine romantic relationship rather than a formal relationship entered into under sufferance to placate his family. Although brief, the account the applicant gives of the inception and development of the relationship describes a naturally evolving relationship. There was nothing in the language he used in the interview that would suggest that the applicant has been forced into the marriage against his will and instead he presents as spontaneous and enthusiastic. The Tribunal has also had regard to the photographs taken at the engagement party. There is similarly nothing in the photographs that would suggest that the applicant has been forced into the marriage against his will and, on the contrary, both the applicant and [the woman] appear relaxed and happy. Again, the Tribunal acknowledges the applicant’s assertion that the engagement, departmental interview and everything else he did in relation to the engagement was an elaborate contrivance entered into as a result of family pressure on him to get married. The Tribunal nevertheless considers that the interview responses and the photographs depict a genuine relationship.
86.The letter of withdrawal also reinforces the impression that he was very much interested in having children with [the woman] and that this was a significant factor in the breakdown in the relationship with her. The Tribunal can understand that, if, as he claims, the visa applicant was withdrawing from a heterosexual spouse visa application because he was homosexual (and under pressure from his homosexual partner, [the partner]), he might have been disinclined to refer to his homosexuality in his letter of withdrawal. Even though there is little basis upon which to be concerned that that information might find its way back to his family in Lebanon it remained a risk that it would (given [the woman’s] connections to the family). However, the Tribunal considers that there would be no reason why the applicant could not have indicated that he was in another relationship (without disclosing it was with a man) or not provided any reason. Instead he indicates in his withdrawal letter that his reason for withdrawing his application for a spouse visa application was a lack of harmony. He stated that “there is no harmony between us to make a family in the future”. Although not entirely free of doubt, the most probable construction of this statement (particularly when viewed in the context of what he had said in the interview six days earlier i.e. that he wanted to have children with [the woman]) is that he was severing his relationship with [the woman] because he did not feel she would be a suitable partner and mother of his children due to the conflict in their relationship. In summary, the evidence in relation to the applicant’s relationship with [the woman] tends to undermine his claim to have merely been role playing in the relationship and is indicative instead of a genuine albeit troubled and short‑lived relationship.
87.The evidence in relation to the applicant’s relationship with [the woman], when combined with the applicant’s failure to lodge an application for a Protection visa during his first visit to Australia, his delay in doing so during his second visit and the inconsistency in the evidence of persecution diminishes the credibility of the applicant’s claim to have been genuinely fearful over that period and also undermines the credibility of his claims to have suffered persecution in Lebanon and more broadly his claim to be homosexual.

The Tribunal then addressed the fourth component of its dissatisfaction with the truth of the applicant’s claims, which were inconsistencies given by the applicant and omissions from his original visa statement in relation to incidents of physical harm encountered from his father and other members of his family in Lebanon in relation to his perceived homosexuality. It is now conceded that the inconsistencies identified by the Tribunal could be treated as grounds for disbelieving the applicant, provided that the other reasons for disbelieving the applicant were supportable in law.
It is sufficient for me to quote the Tribunal’s conclusion at the end of its discussion of this evidence:
100.The applicant’s omission of any detail of any physical harm from his first statement and the inconsistency between the account the applicant gave his psychologist and the account he gave the Tribunal about the extent of serious harm he has suffered as a result of being homosexual are not significant shortcomings in the evidence but deprive the evidence of cogency. When combined with the other concerns discussed in these reasons, this lack of cogency in the evidence of past persecution diminishes the credibility of the applicant’s claims of persecution and to have been genuinely fearful over that period, and also undermines the credibility of his claims to have suffered persecution in Lebanon and more broadly his claim to be homosexual. It is reasonable to expect that the applicant would in his statement of claims provide details of persecution suffered and would be consistent in the information he gave a psychologist and the information which he gave the Tribunal. The omission of a reference to being attacked in his statement of claims and the inconsistency between the account he gave the psychologist (attacked many times) on the one hand and the Tribunal at the first hearing (attacked once) on the other, casts doubt on his claim to have suffered harm as a result of his sexuality.
The Tribunal then repeated its general conclusion which it had given at the start of its “Findings and Reasons”. It said:
101.Individually each of these problems raises some doubt about the applicant’s credibility and their cumulative effect has diminished his credibility to the extent that the Tribunal is not satisfied of the truth of any of his claims including that he is a homosexual, that he has been persecuted as a homosexual and that he faces a real chance of persecution in the future for being a homosexual.
102.At the close of the second hearing the applicant submitted an envelope with 22 photographs taken at the Gay Mardi Gras in Sydney on 27 February 2010. He stated that the photographs demonstrated the freedom he is enjoying as a homosexual in Australia. In Lebanon he was always been controlled by his father and brothers.
103.The Tribunal is not satisfied that the applicant does have a well‑founded fear of persecution should he return to his home in Lebanon because of his sexuality or membership of a particular social group (homosexual men) in Lebanon. The Tribunal further finds that its adverse credibility findings also leave it unsatisfied that the applicant’s activities in Australia such as his attendance at the Gay Mardi Gras is otherwise than for the purpose of strengthening his claim to be a refugee, and for that reason disregards his conduct in Australia pursuant to section 91R(3) of the Act.
The applicant now applies to the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should have been believed by the Tribunal, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant’s amended application filed at the hearing contains the grounds set out in the following paragraphs:
5.The reasoning of the Tribunal was so unreasonable that no reasonable person could have so reasoned.
Particulars
The Tribunal’s reasoning at [86] that “there would be no reason why the applicant could not have indicated that he was in another relationship (without disclosing it was with a man)”, and that failure to do so damaged his credibility, is so capricious and arbitrary a conclusion that no reasonable Tribunal could have reached such a conclusion.
6.The Tribunal’s understanding of the nature of sexual orientation was fundamentally flawed, leading to a failure to properly consider the applicant’s claims.
Particulars
The Tribunal’s interpretation of the Applicant’s motivations in lodging, and then withdrawing, a visa application based on a relationship with a woman betrays a deeply flawed, stereotypical and one‑dimensional understanding of human sexuality, emotions and psychological motivation. The Tribunal therefore could not properly understand the Applicant’s claim to be homosexual.
7.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 formed the view that the Tribunal’s findings concerning the Applicant’s credibility, based entirely on irrelevant or non existent “inconsistencies” and without any real examination of the Applicant’s claims to be a homosexual, gave rise to an apprehension that the Tribunal approached the case before it with a closed mind.
8.The Tribunal made findings of fact contrary to the Applicant’s claims for which it had no evidence.
In his submissions, the solicitor for the applicant indicated that he no longer pressed the grounds indicated in paragraphs 5 and 7. His written submissions explained this withdrawal:
6.On the basis of the High Court’s reasoning in MIMA v SZMDS [2010] HCA 16, the first ground is withdrawn.
7.From an examination of the transcripts filed on 22 June 2010, the Applicant concedes that the third ground cannot be made out.
As I understand the reference to the High Court’s decision in SZMDS, the solicitor for the applicant accepted that it might have been open to a reasonable Tribunal to have arrived at the same conclusion as the Tribunal on the material before it. However, he did not concede that all the components of the Tribunal’s reasoning reflected rational reasoning based on probative evidence. Rather, the contrary was submitted in relation to the Tribunal’s reasoning in relation to the first three of the four components giving rise to its dissatisfaction, and the attack on those three components was sought to be brought within the grounds of review set out in paragraphs 6 and 8.
Essentially, it was submitted that the Tribunal’s reasoning in relation to the first three components made findings of fact based on evidence which had not been identified in the Tribunal’s reasons, and which could not be identified by the Court on judicial review. It therefore left those parts of the Tribunal’s decision as unsupported by any probative material. I was referred in this respect to the judgment of the Full Court in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108. In that case, Kenny J explained her reasons for dismissing the Minister’s appeal:
71.It is well‑established that the onus lies with the party seeking to establish jurisdictional error: see, for example, R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 155 per Dixon, Fullagar and Kitto JJ; Ex parte IBM Global Services Australia Ltd [2005] FCAFC 66 at [27] per Gray, Whitlam and Moore JJ; and Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 at [15] per Jagot J. However, as this Court has observed, “[i]ssues regarding the burden of proof are not always straightforward in judicial review proceedings”: see Minister for Immigration and Citizenship v Le (2007) 242 ALR 455 at 472 [55] per Kenny J. If the respondents’ onus entails negating the possibility that an unidentified and apparently unidentifiable text, which was not referred to in the Tribunal’s s 430 statement, provided the otherwise absent rational basis for the Tribunal’s finding, then their appeal must fail.
72.It is, however, unnecessary to go this far. Under the circumstances of the present case, the respondents have met their burden. On the face of the Tribunal’s written statement, the Tribunal’s conclusion that the first respondent’s answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision‑maker could have evaluated the first respondent’s answers; no such material can be found in the record; and no other logical basis justifies the Tribunal’s finding. In these the circumstances, it is appropriate to infer that the Tribunal’s decision‑making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the Minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the Federal Magistrate did not err in finding jurisdictional error.
Rares J followed similar reasoning, and Buchanan J dissented.

The applicant’s failure to seek protection during his first visit to Australia.

In relation to the first component of the Tribunal’s dissatisfaction with the applicant’s credit, the solicitor for the applicant submitted, as I understood him, that the Tribunal made a firm finding in paragraph 69 of its reasons, that the applicant had not given a plausible reason why he did not seek protection. He submitted that this finding was based on an opinion as to how the applicant ‘would have’ behaved, which was not based on any evidence in relation to the behaviour of people who have suffered similar persecution, showing the speed and circumstances in which they lodge protection visa applications, so as to allow any comparison with the applicant’s actions. The Tribunal’s conclusion at paragraph 72 that there was a “lack of a cogent reason” for the applicant’s failure to seek protection was therefore arbitrary and based on no evidence, and could be characterised in the same manner as the Tribunal’s reasoning in SZLSP.
In my opinion, this involves a misunderstanding of how the Tribunal reasoned, and also does not address the distinction between the present Tribunal’s reasoning and the reasoning of the Tribunal which was condemned in SZLSP.
In my opinion, on a fair reading of the Tribunal’s reasons, it did not arbitrarily conclude that the applicant’s explanation for his delay was incapable of providing “a plausible reason”, in the sense of an explanation that might be true. Plainly, the Tribunal was left in doubt about the applicant’s explanation, sufficient for it to regard the matter as providing only an “anomaly in his case” which would not itself be “determinative of the review” unless combined with other concerns. In my opinion, when viewed in that light, there was no irrationality when identifying and weighing this concern with other aspects of the applicant’s evidence, to arrive at an ultimate conclusion on whether it was satisfied as to the truth of the claimed history.
Moreover, I do not accept that the Tribunal’s reasoning about how the applicant could have or might have acted in relation to seeking protection on his first visit to Australia, if his claims of having “endured years of physical abuse and torment” were true, required reliance on unstated evidence, which the Court could conclude did not exist in the absence of it being identified by the Tribunal in its reasons.
In SZLSP, the Tribunal’s assessment of the applicant’s knowledge of Falun Gong beliefs could have been rationally based, only if it had compared his answers to its questions with some external source of information about Falun Gong doctrine. By concluding that the Tribunal lacked any such information, the majority justices were able to conclude that the Tribunal’s adverse conclusion was vitiated on the principles discussed by the High Court in SZMDS.
In the present case, the only evidence that the Tribunal needed to rely upon for having concerns about the applicant’s failure to seek protection on his first visit to Australia, was the evidence it set out in its statement of reasons. This included the applicant’s claims of having endured years of physical hardship, abuse and torment before his visit, and his evidence that he took no actions to seek protection during his first visit. The Tribunal’s concern arising from this evidence was, in my opinion, a matter purely of assessment of the evidence it identified, without drawing upon other unstated evidence. Its adverse assessment did not involve any irrationality, nor require any general behavioural evidence of the type submitted. I do not accept that it was based upon a lack of ‘probative material’.
I accept that the different decision‑makers addressing the same evidence might have arrived at different assessments as to the possible significance of the applicant’s failure to seek protection during his first visit. However, the differences between such assessments would be characterised in the language of Heydon J in SZMDS at [78] as “one of degree, impression and empirical judgment” (see also in the judgment of Crennan and Bell JJ at [135]).
I am therefore not persuaded that any jurisdictional error, or evidence of a jurisdictional error, has been located in the submissions made by the applicant’s solicitor addressing this part of the Tribunal’s decision.

The applicant’s delay in seeking protection during his second visit.

Similarly, in my opinion it was open to the Tribunal to consider whether the applicant’s delay, even of one month, in seeking protection after returning to Australia provided another “anomaly in his case”, which could be regarded as reflecting on the credibility of the claimed persecution occurring both before the first visit and before the second visit.
I am not persuaded that the Tribunal’s conclusion at the end of paragraph 75, which I have set out above, was not open to a reasonable Tribunal on the evidence before it. That conclusion was that “immediately or within a few days of his arrival … A person who had endured the physical, psychological and emotional pain he claims to have suffered purely as a result of his sexual preference would have made inquiries of the immigration authorities about what avenues he could pursue to seek haven from persecution”.
I am not persuaded that the Tribunal did rely on unstated and non‑existent probative evidence, when concluding that the applicant ‘could’ have lodged an application immediately or within a few days of his arrival in Australia and ‘would’ at least have made inquiries. In my opinion, it was open as a matter of law for the Tribunal to assess that part of the applicant’s behaviour, and treat it as potentially casting doubt upon the truth of his claims, in combination with other such pointers.
I do not accept the written submission of the applicant’s solicitor that the Tribunal had relied on “a template of behaviour that it considered was the only way a person with the Applicant’s set of claims could behave”. I consider that the description of reasoning as relying on “a template of behaviour” obscures rather than identifies a principle of jurisdictional error which is being invoked in that submission. It also obscures the Tribunal’s actual reasoning, which did not, in fact, invoke nor require reliance upon any generalisation as to human behaviour.
As I have indicated, the applicant’s solicitor eschewed claiming that the Tribunal had assessed the applicant’s evidence with a mind closed against him by reason of bias. Similarly, the applicant’s solicitor had eschewed an argument that no reasonable Tribunal could have arrived at the same adverse assessment of the applicant’s credibility on the same evidence. I am left with an impression that the applicant’s submissions do not amount to more than an attack on the merits of factual findings, incapable of being brought within a recognised head of jurisdictional error.
Essentially, the applicant’s submission is that the Tribunal’s adverse assessment of the applicant’s delay in seeking protection on his second visit required reliance on unstated evidence of general human behaviour, before it could meet the required standard of a rational and evidence‑based decision. However, I do not consider that the Tribunal, with the duty to arrive at findings of fact about the credit of the applicant’s refugee claims, needed to have general evidence about the behaviour of people in the applicant’s claimed situation, before contemplating an adverse assessment of the applicant’s evidence in relation to the speed and circumstances in which he lodged a visa application on his second visit to Australia.
I therefore do not accept that the Tribunal’s reasoning concerning the second component of its dissatisfaction with the applicant’s credibility exhibits any jurisdictional error.

The applicant’s relationship with his former fiancée.

In relation to the third ‘problem’ identified by the Tribunal when being dissatisfied as to the applicant’s claimed history, the solicitor for the applicant chiefly addressed the Tribunal’s discussion of the implications of the applicant’s letter withdrawing his prospective spouse visa application.
In the paragraphs which I have extracted above, the Tribunal said that the applicant’s reference to “there is no harmony between us to make a family in the future” was “not entirely free of doubt”, but that the most probable construction tended to suggest that he had previously thought that his fiancée would provide a suitable mother for his children and had ceased to think this about the particular woman. The alternative construction was that it was an oblique reference to his homosexuality, and to a general inability to make a marital commitment to any person of the opposite gender.
The Tribunal undoubtedly was alive to the ambiguity in the withdrawal letter. It resolved the ambiguity by appropriately considering the context of the applicant’s actions, in relation to his fiancée and the prospective spouse visa application. There was nothing in my opinion which was illogical or irrational about its reasoning. It undoubtedly was based upon evidence identified by the Tribunal.
In my opinion, it was open to the Tribunal to draw an adverse implication from the withdrawal letter, even if other minds might have concluded differently. The Tribunal’s impression that the applicant had previously made a genuine commitment to his fiancée, and had second thoughts only about that particular relationship, did have evidentiary support. Particularly, when, as the Tribunal expressly indicated, there is taken into account the evidence given by the applicant to the officer who had the job of assessing the genuineness of the relationship with that woman.
I therefore do not consider that this part of the Tribunal’s reasoning provides evidence of reasoning which was unsupported by rational grounds on probative evidence. I consider that it was open to the Tribunal to conclude that the evidence concerning the applicant’s relationship with his former fiancée diminished the credibility of his claims to be a homosexual, and to have suffered persecution in Lebanon as a homosexual.
As I have indicated above, no attack was made on the Tribunal’s reasoning in relation to the fourth area of concern relied upon by it for not being satisfied as to the truth of any of the applicant’s refugee claims, including his homosexuality.

For the above reasons, I am not satisfied that any of the attacks on any part of the Tribunal’s reasons has provided evidence of jurisdictional error affecting the Tribunal’s decision.
I must therefore dismiss the application.

I certify that the preceding fifty‑two (52) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 3 November 2010