CLO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

the tribunal's decision 16 The Tribunal set out the background facts, the events which led to the cancellation of the appellant's visa by the delegate under s 109 of the Migration Act and the evidence before it including that: (1) the appellant travelled to Lebanon in 2011 and remained there for about 11 months and while there he married his wife: at [17]-[18]; (2) Islam does not approve of homosexuality and after he was granted a protection visa the appellant underwent a period of internal conflict that lasted about three years. He had to choose between his religious convictions and his sexual orientation and ultimately decided to turn his back on the latter and to follow "what God wants him to be which is to live as a man free from carnal sin": at [23]; (3) the appellant's wife is aware of his past struggles with his sexual orientation: at [24]; (4) the appellant did not say in the May Statutory Declaration that he had to hide his sexuality during his visit to Lebanon in 2011: at [26]; (5) the wife provided the Tribunal with a statutory declaration dated 9 February 2017 in which she stated that although the appellant was formerly attracted to men he reformed after embracing the teachings of Islam, is now a faithful and religious man and regrets his former life. She also said that since marrying, the appellant has lived a virtuous and religious life, has managed to overcome his past sexual desires by being faithful to his religion and that God has helped him to overcome the evil desires that afflicted him. Upon learning of them shortly after her marriage, the wife accepted the appellant and his past mistakes: at [29]-[30]; and (6) no-one in Lebanon is aware of the appellant's past because he has managed to keep it a secret. The appellant's return to Lebanon in 2011 was not a problem because he kept his homosexuality a secret and thus he was not in any immediate danger. As long as he remained a "closeted gay" he was not in any immediate danger: at [31]. 17 In response to a request by the Tribunal for the appellant to describe his sexuality in his own words, the appellant said that he was heterosexual or bisexual, at the moment all his tendencies were towards women and that "[h]is mind 'plays up sometimes' but he is with his wife and [is] a good husband": at [34]. 18 After referring to the appellant's evidence that he saw a psychologist in relation to his mental health problems, at [53]-[54] of its reasons the Tribunal said: 53. The Tribunal asked the applicant whether after getting the Protection visa he kept going to the psychologist. He said "no, I saw him once", the psychologist gave him a prescription and the applicant felt free to go with the boys. The Tribunal pointed out that later on he felt conflicted between his religion and sexuality. The applicant said that he stopped having this conflict when he met the sheikh at the mosque and the applicant talked to him about his feelings, his tendencies. The sheikh said he would help the applicant get out of this. The sheikh prayed with the applicant with the Quran above the applicant's head. The applicant "felt better" after he discovered prayer. 54. The Tribunal asked what the applicant personally believed about homosexuality generally at present. He said that he felt that this was normal, because he had been like that in the past. He said that if one wants to get out of being a homosexual, religion can get them out of this. The applicant said that his tendency towards religion conquered his tendency towards homosexuality. When asked whether when he says "conquered" it means that he feels no sexual attraction towards men, he still has this "feeling" but his wife helps him with this and so does the sheikh. 19 The Tribunal then turned to assess the appellant's evidence. 20 At [67]-[68] of its reasons the Tribunal said: 67. The Tribunal is mindful that sexuality is complex and fluid. The Tribunal further acknowledges that a man who comes from a conservative society such as Lebanon may not be heterosexual, but choose to marry a woman for variety of reasons e.g. because of fear, because it may be the only way to have children, to please his parents and relatives, or to avoid discrimination and ridicule. 68. However, in the present case the applicant - and the others who have provided evidence, his wife and his imam - described a simple dichotomy, a choice between being gay and attracted to men in opposition to being religious and not attracted to men. While in the Protection visa application the applicant complained about being pressured by his parents to get married against his will, at the time of visa cancellation, he had turned his back on his lustful ways and started living happily with his wife. It appeared that the applicant did not need to make a conscious effort to resist his sexual urges, desires and feelings. 21 At [70] of its reasons, the Tribunal found that the appellant "did not present a persuasive narrative in relation to this alleged inner conflict which lasted about three years" and that "he did not convince the Tribunal that he went on a journey". It said that the appellant's evidence "lacked the richness and texture" to be expected from a person who has "lived in a challenging environment as a closeted gay, tasted the freedom to explore his sexuality in Australia and ultimately decided to prioritise his religion over his sexuality". 22 The Tribunal found that in his oral evidence the appellant "mechanically recited" his claims that he felt conflicted but did not explain why religion prevailed over his sexual freedom. It noted that the appellant had informed the Tribunal that when he came to Australia and after being granted his visa he was not very religious and did not attend the mosque but for some reason he gradually started to like going to the mosque and, after a while, approached the Imam. The Tribunal noted that the appellant then proceeded unquestioningly to accept the Imam's advice as to how to "get out of being gay". The Tribunal found that the appellant did not explain adequately why after he was granted protection in Australia, he decided to embrace the same religion which caused him to live in fear while in Lebanon: at [72]-[73]. 23 The Tribunal went on to observe that there were matters on which the appellant gave no evidence, namely: (1) he did not claim that he had any discussions with the Imam about what he should do, any practical tips the Imam gave him about how to resist same sex attraction, that he was initially reluctant but that the Imam at the mosque managed to persuade him to turn his back on his sexuality in the name of religion; and (2) he did not describe any discussions or arguments, either internal or with the Imam, about the conflict between religious duty and sexual desire. The Tribunal noted that the way the appellant was cured by the Imam was a simple matter; the appellant confessed, the Imam said he would take care of this and did so by placing a Quran over the appellant's head and praying for him: at [75]-[76]. 24 At [77] of its reasons the Tribunal observed that there was "a paucity of evidence in relation to any external manifestation of the [appellant's] gay sexuality in Australia". The Tribunal noted that the appellant claimed that there was a period of about two years when he had relative freedom, although he still feared the consequences of his siblings or parents finding out and was too afraid to have sex. The Tribunal found that the appellant did little with his sexual freedom, he spent time with one colleague, who, like the primary judge, I will refer to as Mr K in these reasons, but he could not remember Mr K's actual name, despite being very close to him for two years. The Tribunal also noted that the appellant could not remember the names of the clubs he had visited on four or five occasions and did not accept that the appellant would not have been able to find his way to a nightclub using public transport if those clubs were located in the city: at [77]. 25 The Tribunal noted that at the time of the hearing there was no person in Australia who could provide evidence in support of the appellant's sexuality claims other than his wife and professionals associated with his visa application such as his lawyer and psychologist and that there was no attempt to locate "his friend, [Mr K]". It also noted that, according to the appellant's evidence, he was keen to have sex with a man in Australia where he had freedom to do so, the only reason he did not do so in Lebanon was fear but that he did not have intercourse with a man in Australia before or after the grant of the visa. This was because he feared doing so may cause him to bleed so profusely that he would have to go to hospital and his parents in Lebanon would then find out what he had done. The Tribunal rejected as implausible that the appellant would not have educated himself by talking to other gay men, such as his friend Mr K, and realised that this fear was misplaced: at [78], [80]. 26 The Tribunal placed weight on the discrepancy between the appellant's written claims in his application for a protection visa and his evidence at the hearing as to whether he suffered any physical harm in Lebanon. The Tribunal noted that the appellant had previously told a psychologist that he had been exposed to traumatic and life threatening experiences and attacks against him and that his friends rejected him when they found out he was gay. However, at the hearing he had said he had not suffered any harm in Lebanon because nobody there knew he was gay: at [81]. 27 The Tribunal also placed some weight on the appellant's decision to remain in Lebanon for 11 months in 2011-2012 despite allegedly fearing that his "former sexuality" may become known. The Tribunal noted that when he applied for his protection visa the appellant said he did not wish to marry a woman. It found that the fact that he did marry a woman, had three children with her and was unable to articulate in any meaningful detail the internal conflict between his religion and sexuality suggested that the appellant is, and always has been, heterosexual: at [84]. 28 The Tribunal found that the appellant came to Australia and applied for a protection visa on the false basis that he is gay. It found that some three years after obtaining a permanent visa the appellant travelled back to Lebanon and married a woman who came from the community he had claimed to fear: at [85]. 29 The Tribunal thus found that the appellant provided incorrect information in his visa application in contravention of s 101(b) of the Migration Act: see [89]. 30 The Tribunal then considered whether the appellant's visa should be cancelled. It found that, having regard to all the relevant circumstances, the visa should be cancelled: at [129]. It is not necessary to set out the Tribunal's reasons for reaching that conclusion.

proceeding in the federal circuit court 31 The appellant filed an application for judicial review in the Federal Circuit Court in which he raised a single broad ground of review alleging legal unreasonableness on the part of the Tribunal in reaching its conclusion that he had provided incorrect information about his sexuality contrary to s 101(b) of the Migration Act. The appellant does not allege any error on the part of the primary judge insofar as his Honour rejected that ground of appeal. Accordingly, it is not necessary to set out his Honour's reasons in relation to that ground. 32 Rather, the appellant's ground of appeal in this Court is concerned with the primary judge's treatment of what was described as the appellant's "free standing complaint" and which his Honour considered at [24]-[30] of CLO17. 33 That "complaint" concerned [68] of the Tribunal's reasons where it stated that it "appeared the [appellant] did not need to make a conscious effort to resist his sexual urges, desires and feelings". His Honour found that statement to be the Tribunal's characterisation of the claims made by the appellant in the May Statutory Declaration as was apparent from the text of [68] of the Tribunal's reasons. His Honour found that it was reasonably open to the Tribunal to characterise the appellant's claims in that way. 34 The primary judge found that the same considerations applied to the Tribunal's statement in [71] of its reasons that once the appellant "made this apparently simple choice to be a virtuous Muslim he was now living 'free from carnal sin'". His Honour found that this statement was again a characterisation by the Tribunal of the claims made by the appellant in the May Statutory Declaration and that it was reasonably open to the Tribunal to characterise the claims in that way. 35 The primary judge also found that the structure of the Tribunal's reasons showed that it went no further than to characterise the claims the appellant made in the May Statutory Declaration. The primary judge noted that at [10]-[66] of its reasons the Tribunal set out the appellant's claims and the evidence on which he relied and at [67]-[84] of its reasons the Tribunal considered whether the appellant provided incorrect information by: (1) setting out the effect of, and making observations about and findings in relation to, the claims the appellant made in the May Statutory Declaration, the evidence the appellant's wife gave in her statutory declaration and the statements contained in the Imam's letter; (2) making observations about the manner in which the appellant gave his oral evidence before the Tribunal; and (3) making particular observations about certain aspects of the appellant's and his wife's evidence and identifying matters that the appellant did not claim and evidence that the appellant did not provide. 36 The primary judge found that it was only after the Tribunal undertook those tasks that it recorded its ultimate finding at [85] of its reasons, namely that the appellant came to Australia and applied for protection on the false basis of being gay. This indicated that the Tribunal made its findings after it took into account all of its findings and observations set out at [67]-[84] of its reasons. Thus the primary judge did not accept that the Tribunal made any error in stating that it appeared that the appellant did not make a conscious effort to resist his sexual urges or in stating that once the appellant made the apparently simple choice to be a virtuous Muslim he was now living "free from carnal sin". That was so because those statements constituted characterisations of the claims the appellant made in the May Statutory Declaration and it was reasonably open to the Tribunal to characterise the claims in that way.

the appeal 37 At the hearing the appellant was granted leave to file an amended notice of appeal in which he raises a single ground of appeal as follows: The Tribunal treated the appellant's case as being that he did not need to make a conscious effort to resist his homosexual urges because it was a simple choice between gay and attracted to men or religious and not attracted to men. In fact, in answers to the Tribunal's own questions at the hearing the appellant described himself as "bisexual" and said his "mind plays up sometimes" and he still had the "feeling" but his wife and the sheikh help him with this. The Court below erred by finding that the Tribunal did not err in relation to this misconstruction of the appellant's claims and evidence. This error, which was described below as the "freestanding ground" can be characterised in various ways, including: a. a failure to exercise jurisdiction by not actively considering claims and evidence; b. reaching a finding without a logical or probative basis; (Strikeout and underlining omitted.)

The appellant's submissions 38 The appellant's ground of appeal calls attention to [23], [29], [34], [54] and [68] of the Tribunal's reasons. The appellant submitted that the Tribunal's ultimate finding at [68] of its reasons, that he described a simple dichotomy, cannot be logically reconciled with parts of the Tribunal's reasons at [23], [29], [34] and [54]. He contended that in light of the claims and evidence the Tribunal recorded at those paragraphs, it was not open to it to find that the appellant described a simple dichotomy between being gay and non-religious or not gay and religious. Rather, the appellant's evidence was that he had undergone a period of three years of internal conflict, he was heterosexual or bisexual, his mind "played up sometimes" but he stayed with his wife as a good husband, he had worked with the sheikh to conquer his homosexuality and he still has "the feeling" but his wife and the sheikh helped him with it. 39 Similarly, the appellant submitted that the Tribunal's finding that he did not have to make a conscious effort to resist his urges, desires and feelings was not logically open on the claims and evidence as found by the Tribunal, relying, in relation to the inference to be drawn from the Tribunal's reasons, on Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [49]. 40 Insofar as the appellant alleges that there was a failure to actively consider a claim and evidence (see particular (a) of his ground of appeal), he submitted that the Tribunal was obliged to consider, in the sense of an active intellectual engagement, the merits of the case before it. He said that the Tribunal was not considering the merits of the actual case before it when it considered a false premise, namely that he described a simple dichotomy and did not appear to need to make a conscious effort to resist his sexual urges, desires or feelings. The appellant submitted that the claims and evidence included the matters referred to at [23], [29], [34] and [54] of the Tribunal's reasons which the Tribunal had considered. He said that his appeal is based on a failure to consider matters that were so clearly put before the Tribunal that they were even recorded in the Tribunal's reasons in those paragraphs. The appellant contended that the Tribunal's conclusion at [68], that he described a "simple dichotomy" and did not appear to need to make a conscious effort to resist his sexual urges, desires and feelings, ignored the actual claims and evidence as recorded in those paragraphs. 41 Insofar as the appellant alleges that the Tribunal erred by making a finding without a logical or probative basis (see particular (b) of his ground of appeal), he submitted that the primary judge ought to have drawn the conclusion that the Tribunal's reasons lacked logic because, having set out important claims at [23], [29], [34] and [54], it could not then logically draw conclusions as if different claims were made. The appellant submitted that the Tribunal's conclusion at [68], that he described a simple dichotomy between being gay and non-religious and not gay and religious and did not appear to need to make a conscious effort to resist his sexual urges, desires and feelings, was illogical in that it contradicted the actual claims and evidence referred to at [23], [29], [34] and [54] of its reasons. He contended that the finding could not logically be made because the Tribunal did not reject the appellant's evidence that his mind (still) "played up sometimes" and he "still has the feeling". 42 The appellant submitted that it was not open to the Tribunal to characterise the appellant's claims in this way, contrary to the findings of the primary judge at [30] of CLO17. The appellant noted that at [24] of his reasons the primary judge found that the Tribunal's reasoning at [68] was an open characterisation of the claims in the May Statutory Declaration. He contended that the error in the primary judge's approach is that the information in the May Statutory Declaration does not address whether he had to make a conscious effort to resist his sexual urges, desires or feelings and the Tribunal's own reasons show that the matters in [23], [29], [34] and [54] cannot be reconciled with its reasons at [68]. 43 At [29] of CLO17 the primary judge found that the Tribunal made its ultimate finding at [85] that the appellant applied for protection on the false basis of being gay after it took into account all of its findings and observations at [67]-[84] of its reasons. The appellant submitted that the flaw in the primary judge's reasoning is that the findings in [67]-[84] demonstrate a failure to reject, or even consider, the evidence and claims that his mind (still) "played up sometimes" and he "still has the feeling". The appellant observed that he had claimed that having married his wife and become religious, he had chosen to live as a heterosexual man, despite still having homosexual feelings and desires and identifying as heterosexual or bisexual. The appellant submitted that the Tribunal recorded these claims, did not reject them and then made illogical findings, contrary to them.

Consideration 44 In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 the High Court of Australia considered a number of questions of law in a special case. The proceeding arose out of the cancellation of the plaintiff's visa pursuant to s 501(3A) of the Migration Act, a subsequent application for revocation of that decision and a decision by a delegate of the Minister pursuant to s 501CA(4) of the Act not to revoke the cancellation decision (non-revocation decision) because the delegate was not satisfied that the plaintiff passed the character test or that there was "another reason" why the cancellation decision should be revoked. The plaintiff filed out of time an application for a constitutional or other writ in the High Court seeking, among other things, a writ of certiorari to quash the non-revocation decision and a writ of mandamus or an injunction to compel the Minister to exercise the power under s 501CA(4) of the Migration Act according to law. The plaintiff and the Minister agreed to state questions of law for the opinion of the Full Court of the High Court. One such question was whether, in deciding if there was "another reason" to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, a delegate was required to consider the plaintiff's representations which raised a potential breach of Australia's international non-refoulement obligations where the plaintiff was able to make a valid application for a protection visa. In considering the questions raised the majority of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) said at [24]-[27]: [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder. [25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. [26] Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker. [27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. (Footnotes omitted.) 45 While Plaintiff M1 was determined in a different statutory context, the parties agreed that the principles summarised above would apply by analogy to the Tribunal when considering claims or submissions put by an applicant. 46 In effect the error complained of by the appellant here concerns the Tribunal's approach to its task. He contended that the Tribunal oversimplified the case he put as being one in which he claimed to be homosexual but then found religion and chose to no longer be homosexual thus reducing the case to one of a simple choice between being homosexual and non-religious or not being homosexual and being religious. The appellant contended that when the Tribunal's own reasons were reviewed that finding was not open. 47 The appellant's ground of appeal focuses upon the Tribunal's analysis at [68] of its reasons (see [37]-[38] above). It takes issue with the Tribunal's statement that the appellant "described a simple dichotomy, a choice between being gay and attracted to men in opposition to being religious and not attracted to men" and that "it appeared that the [appellant] did not need to make a conscious effort to resist his sexual urges, desires and feelings". As set out above, the appellant submitted that the Tribunal's assessment of his evidence was inconsistent with the evidence recorded by the Tribunal: (1) at [23] of its reasons where the Tribunal noted that the appellant claimed that he "underwent a period of internal conflict that lasted about three years"; (2) at [29] of its reasons where the Tribunal noted the appellant has "managed to overcome his past homosexual desires by being faithful to God and his religion" and that "God has helped him to overcome the evil desires that afflicted him"; (3) at [34] of its reasons where the Tribunal recorded that the appellant, when asked to describe his sexuality in his own words, described himself as "heterosexual or bisexual" and said that "[h]is mind 'plays up sometimes'"; and (4) at [54] of its reasons where the Tribunal recorded that the appellant said that "his tendency toward religion conquered his tendency toward homosexuality" and when asked whether his reference to "conquered" meant that he felt no sexual attraction towards men, he said that "he still has this 'feeling' but his wife helps him with this and so does the sheikh". 48 The appellant contended that the Tribunal failed actively to consider evidence that was before it. However, as the appellant also observed the Tribunal summarised the very evidence he contends that it failed to consider in its reasons. In those circumstances it would be difficult to conclude that the Tribunal had failed to consider the claims and/or evidence before it, including the evidence recorded at [23], [29], [34] and [54] of its reasons. As a Full Court of this Court observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. … 49 Here, the Tribunal identified the issue it had to address, set out the appellant's evidence in detail and then made its findings in relation to the issue. It can be inferred, contrary to the appellant's submission, that in making its findings it had regard to the appellant's evidence that it had recorded in its reasons. 50 Further, the appellant analyses the Tribunal's reasons in a segmented way. In Re Minister for Immigration and Multicultural Affairs; Ex parte Appellant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [14] the High Court (Gleeson CJ) said: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. 51 In Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [44] a Full Court of this Court (Nicholas, Yates and Griffiths JJ) referred to the above passage from Appellant S20. Their Honours observed that, although the High Court was addressing the Tribunal's treatment of evidence of different witnesses, its underlying principle, which recognises the need to read a decision maker's reasons as a whole, applied equally to the case before it. In that case the Tribunal's reasons dealt sequentially with different issues or considerations. 52 The same can be said here where, in the paragraphs highlighted by the appellant the Tribunal has dealt sequentially with the appellant's evidence. However, there is nothing to suggest that the Tribunal did not consider the whole of the evidence, including that referred to in those paragraphs, in reaching its conclusion at [68]. Reading the Tribunal's decision as a whole, it is apparent that it went about its task in a methodical way, clearly setting out the evidence relied on by the appellant and then making its findings. 53 That [68] of the Tribunal's reasons cannot be read in isolation and must be read in context is reinforced when regard is had to [67] of those reasons (see [20] above). That paragraph is best characterised as an assessment of the evidence before the Tribunal. In it the Tribunal acknowledges that sexuality is "complex and fluid" and that a man from a conservative society may not be heterosexual but may choose to marry a woman for a variety of reasons, setting out some of those reasons. That paragraph demonstrates that the Tribunal was aware of and made an assessment based on all of the evidence before it. It tells against the appellant's submission that the Tribunal failed to consider his evidence. 54 In any event, I accept the Minister's submission that the finding of the simple dichotomy referred to by the Tribunal at [68] of its reasons was supported by the appellant's evidence. As the Minster said, on the appellant's own account he "ultimately chose to live according to [his] religious teaches (sic) and moral standards" and to turn his back on his "lustful ways and follow what God wants". The Tribunal was entitled to rely on this evidence and the appellant's statement that if one "wants to get out of being a homosexual, religion can get them out of this" and that his "tendency towards religion conquered his tendency towards homosexuality". The primary judge found, in my view correctly, that the Tribunal's assessment of the evidence reflected the evidence given by the appellant. There was no error in that finding. 55 The appellant also contends that the Tribunal erred because, at [68] of its reasons, it reached a finding without "a logical or probative basis". 56 In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] Allsop CJ said the following about the task of reviewing a decision for legal unreasonableness: The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. 57 The appellant relies on the decision in FSG17 v Minister for Immigration , Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456. In that case the appellant succeeded in establishing that the primary judge had erred in failing to find that the Tribunal "acted in a way that was legally unreasonable" because an important step in the Tribunal's reasoning process was legally unsound. Relevantly, at [61] a Full Court of this Court (Bromberg, Davies and O'Bryan JJ) observed that "[a] factual conclusion may be legally unreasonable if it is based on illogical or irrational findings or inferences of fact". 58 Similarly, here the appellant contends that the Tribunal's conclusion at [68] was based on illogical or irrational findings or inferences of fact and thus was legally unreasonable. That illogicality is said to arise for two reasons. 59 First, because of the Tribunal's conclusion at [68] that the appellant described a "simple dichotomy" and did not appear to need to make a conscious effort to resist his sexual urges, desires and feelings. The appellant contends that in the May Statutory Declaration he did not address whether he had to make a conscious effort to resist his sexual urges, desires or feelings and thus it follows that the simple dichotomy finding was based on an illogical or irrational finding. However, as the Minister submitted, this aspect of the Tribunal's reasons was not intended as a summary of the appellant's evidence but as an evaluative assessment or, as the primary judge found to be the case, characterisation of his evidence. As the High Court said in Plaintiff M1 (at [24]) a decision maker must have regard to what is said in the representations made by an applicant and bring their mind to bear upon the facts stated in them. But, thereafter the decision maker "might sift them" and attribute to them whatever weight or persuasive quality is thought appropriate. At [68] of its reasons the Tribunal undertook a task of that nature. 60 Secondly, the appellant contends that the Tribunal's findings and observations in [67]-[84] of its reasons demonstrate a failure to reject, or even consider, the appellant's evidence that his mind "played up sometimes" and that he "still has the feeling". The appellant also asserts that having recorded, and not rejected, his claims about his choice to marry and live as a heterosexual, despite still feeling homosexual desires and feelings, the Tribunal made illogical findings contrary to those claims. 61 The Tribunal is not required to make actual findings of fact in relation to each piece of evidence and all material claims made by an applicant: see Plaintiff M1 at [24]. As I have already found (see [54] above) the Tribunal's conclusion at [68] was open to it based on the evidence before it such that it did not lack a logical or probative basis in the sense contended by the appellant. 62 For completeness, I note that the Minister raised the question of materiality, submitting that even if the appellant was successful in establishing error on the part of the Tribunal he had failed to discharge his burden of demonstrating that any error was material. On the other hand, the appellant submitted that this case does not turn on a materiality analysis, particularly in light of the High Court's reasoning in Plaintiff M1. The appellant contended that if I accept that it was not open to the Tribunal to find that the appellant described a simple dichotomy, then it follows that that error was material. The appellant says that is so because that finding "was so central" to the Tribunal's conclusion that if the Tribunal had not made that error there is a realistic possibility that a different outcome would have eventuated. 63 However, given my conclusions above, the appellant has not succeeded in making out his ground of appeal. Thus no question of materiality, or whether it has any application to the circumstances of this case, arises for consideration.

conClusion 64 As the appellant has not made out his ground of appeal, the appeal should be dismissed with costs. 65 I will make orders accordingly. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.