Conclusion
Ground 1
22 As already noted, the Tribunal referred to the fact that the appellant applied for a protection visa on 31 May 2005, which was over three years after his arrival in Australia. I reject the assertion implicit in ground 1 of the appellant's notice of appeal that the Federal Magistrate erred in holding that it was not irrational or unreasonable for the Tribunal to give weight to the consideration that the applicant made no claim to fear persecution in Bangladesh as a homosexual prior to May 2005. The appellant's delay in lodging a protection visa application was one factor that the Tribunal was entitled to take into account and to give such weight as the Tribunal thought appropriate in all the circumstances of the case. The Federal Magistrate did not err in this regard. Further, the Federal Magistrate did not err in his consideration of the Tribunal's treatment of the opinions of the psychiatrists and psychologist, or other lay witnesses. The Tribunal plainly considered both expert and lay witnesses' evidence and it was entitled to treat their evidence as it did. The Tribunal was not obliged to accept the evidence of expert opinion but was entitled to evaluate it as it did. The Tribunal specifically referred to earlier lay witnesses who claimed to have had sexual relations with the appellant, saying it did not "attach any weight" to their evidence because it found that the appellant had manufactured his claims to be a homosexual. It was open to the Tribunal to approach their evidence in this way. The appellant submitted that this approach was illogical, but illogicality on its own, even if demonstrated, does not establish jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003)198 ALR 59 ("Applicant S20/2002") at 60-64 per Gleeson CJ. The appellant's argument at this level was very largely "an emphatic way of expressing disagreement" (to use the words of Gleeson CJ) with the Tribunal's fact finding: see Applicant S20/2002 at 61.
Ground 2
23 This ground alleged that the Federal Magistrate erred in dismissing the ground of jurisdictional error because, in making its finding about relocation, the Tribunal failed to consider a number of matters relating, broadly speaking, to the practicalities of relocation. The ground is not made out. The Tribunal applied the relocation test, as set out in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. It inquired as to whether it was reasonable, in the sense of practicable, for the appellant to relocate, given the circumstances of his case, including his personal circumstances relating to education, language ability, family situation and work prospects.
Ground 3
24 Ground 3, which claimed jurisdictional error on the Tribunal's part for failing to consider material corroborative of the appellant's claim, is also not made out. In its reasons for decision, the Tribunal referred to, discussed and, therefore, plainly considered the medical reports, which were said to be corroborative, as well as the evidence given by other witnesses on his behalf. In substance, under this ground, the appellant restated his disagreement with the Tribunal's evidentiary assessment and its findings of fact. This disagreement does not disclose jurisdictional error on the Tribunal's part or relevant error on the part of the Federal Magistrate.
Grounds 4 and 5
25 Neither of these formulations of error was specifically before the Federal Magistrate, although the first respondent has addressed argument on them and has not opposed this Court's consideration of them.
26 To evaluate grounds 4 and 5, it is necessary to set out some of the Tribunal's key findings:
1. The Tribunal was not satisfied that the appellant was homosexual;
2. The Tribunal "did not accept that the appellant had been subject to serious harm amounting to persecution … because he is gay and is a member of a particular social group (homosexual)".
3. The Tribunal found that the appellant was not a credible witness. The Tribunal was satisfied that the appellant "has manufactured his claim to be a homosexual … in order to obtain a protection visa".
4. The appellant's activities since 6 October 2006 were done in order to strengthen his refugee claim and were to be disregarded under s 91R (3) (b) of the Act.
5. Notwithstanding (4) above, the Tribunal accepted that the appellant had been associating with homosexuals on social occasions and through his participation in CAAH meetings and activities, and that it was possible that he may through these activities have a homosexual demeanour imputed to him.
6. The Tribunal accepted the country information provided by the appellant's adviser in her submissions of 22 January 2007 about the treatment of homosexuals and others in Bangladesh, which led it to reject that homosexuals are "the particular targets of serious harm amounting to persecution in Bangladesh" and to accept that Bangladesh society "frowns on" "the overt demonstration of sexual affection … across the board …. whether same-sex or opposite sex couples". The Tribunal was not satisfied that "the across the board discouragement of such overt sexual affection is repression or indeed is serious harm amounting to persecution for a Convention related reason". It was not satisfied that "the cultural or social norms and attitudes to such public displays of sexuality in Bangladesh, which applies to both same-sex and opposite sex couples, is serious harm amounting to persecution. It was satisfied that "the different approach to sexuality in Bangladesh is not directed at the [appellant's] actual or imputed particular social group (homosexuality) but applies across all elements and sectors of society in Bangladesh no matter what the couple's gender".
7. The Tribunal was not satisfied that the distribution of the magazine containing an interview with the appellant about his sexuality even if it were known in Bangladesh would result in there being a real chance that he would be subject to serious harm amounting to persecution because of his homosexuality.
8. The Tribunal was not satisfied that "just because of" his publicly associating with homosexuals and being "involved in various gay activities" in Australia, there was a real chance that the appellant would be "subject to serious harm amounting to persecution on this or any other Convention related basis if he returned to Bangladesh".
9. The Tribunal was satisfied that since he had undertaken the activities to enhance his protection visa claims, "he would not continue to be involved in such activities on his return to Bangladesh".
10. The Tribunal also found that whilst "several people either suspect or think they know he is a homosexual, and others may read about him in the article in [the] magazine, the Tribunal was not satisfied that this would be of such significance or import that simply because of it and his involvement with the gay community in Australia, he would be subject to targeting, discrimination, or abuse if he returned to Bangladesh from the Bangladesh government, members of the society, or any other source for a Convention related reason". That is, the Tribunal did not accept that knowledge of his sexuality in Bangladesh would become known, and even if it was, that because of this he would be subject to serious harm amounting to persecution". The Tribunal referred to "the unlikely event that because of his involvement with the gay community in Australia … he would be shunned because of his imputed homosexuality".
11. The Tribunal accepted that Bangladesh was at the time of decision "experiencing severe political disruption and turmoil, and there is some politically orientated violence", but found no evidence that homosexual males, or people who might have "a gay demeanour or association imputed to them", were subject to persecution at the time because there was a breakdown in effective state protection for this particular social group.
12.The Tribunal was satisfied that there was no "real chance that [the appellant] would be subject to serious harm amounting to persecution for a Convention reason (including his particular social group, actual or imputed) because of the current political difficulties in Bangladesh".
27 Once the Tribunal's actual findings are set out in this way, it is plain enough that grounds 4 and 5 fail. The Tribunal plainly rejected the appellant's claim to be homosexual. At the same time, it allowed for the possibility that a homosexual demeanour might be attributed to him in Australia on account of his involvement in the CAAH and his association with homosexuals in Australia. It held, however, that it was unlikely that his involvement in CAAH or his association with homosexuals in Australia would result in a homosexual demeanour being attributed to him in Bangladesh. It also held that it was unlikely that he would continue activities of this kind on returning to Bangladesh (since they were done in Australia to enhance his refugee claim). Notwithstanding this, however, in accordance with Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 ("Rajalingam") at 62-63, the Tribunal went on to consider the appellant's situation in what it saw as the unlikely event that this attribution or imputation was made in Bangladesh. In this regard, the Tribunal was not satisfied that the appellant would "be subject to serious harm amounting to persecution".
28 If the passage set out at [17] above is understood in this way, it is apparent that no error of the kind for which the appellant contends has occurred. That is, in the Tribunal's reasons, the passage can be read as intended to support the proposition that there is no real chance of serious harm befalling a person in Bangladesh on account of overt (and a fortiori covert) homosexual behaviour.
29 Another passage towards the conclusion of the Tribunal's reasons, on which the appellant relied, must also be read in the light of the findings and in the entirety of the Tribunal's reasons. In this passage, the Tribunal referred first to the provision of country information by the appellant's adviser and to her submission about a lack of state protection. It then commented:
While accepting that Bangladesh is at the moment experiencing severe political disruption and turmoil, and there is some politically orientated violence, the Tribunal has not been able to find any evidence that homosexual males, and even more importantly than [sic] those people like the Applicant who may have a gay demeanour or association imputed to them, are being subject to a particular persecution or are being targeted at this time because of it or that there has been a breakdown in effective state protection for this particular social group. Accordingly, in view of all the above and its earlier findings, the Tribunal does not accept this claim and is satisfied that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason (including his particular social group, actual or imputed) because of the current political difficulties in Bangladesh.
30 The appellant argued that the expression "like the Applicant" indicated that the Tribunal made a positive finding concerning the imputation of a homosexual demeanour to the appellant in Bangladesh. When this passage is read in the context of the Tribunal's entire reasons, as indeed the Tribunal expressly invited the reader to do, it is clear that this is not so. In this passage, the Tribunal was doing no more than responding to the appellant's adviser's submission concerning effective state protection upon the basis required by Rajalingam. That is, it was considering the appellant's position in what it saw as the unlikely event that an imputation of homosexuality was made in Bangladesh. In this regard, the Tribunal was not satisfied that there was a real chance that the appellant would besubjected to serious harm amounting to persecution for a Convention reason.
31 When the Tribunal's actual findings are stated, it is apparent that the Tribunal gave consideration to the appellant's claims to fear persecution because of "his … imputed membership of a Particular Social Group being gay men in Bangladesh" (compare ground 4), although it considered the imputation in Bangladesh to be unlikely. In this latter regard, ground 4 misstates the Tribunal's finding. The Tribunal gave this question consideration in accordance with its obligation as outlined in Rajalingam. Ground 4 is therefore not sustainable. Similarly and on the same basis, the Tribunal gave attention to the question "whether gay men (imputed or actual) as a Particular Social Group were the subject of persecution in Bangladesh for the purposes of the Convention as modified by the Act". Ground 5 also fails. Examination of the Tribunal's reasons and the appellant's submissions shows that the appellant's real argument is with the merits of the Tribunal's decision. This is not, however, a matter that properly falls for consideration in the Federal Magistrates Court on judicial review or in this Court on appeal.
32 This case is different from S395/2002, because in this case the Tribunal found that: (1) the appellant was not in fact homosexual; (2) the appellant had fabricated his claim to be homosexual in order to support his protection visa application; (3) although a homosexual demeanour might be attributed to him in Australia (on account of his activities here) it was unlikely that these activities or subsequent activities in Bangladesh would result in a homosexual demeanour being attributed to him in Bangladesh; and (4) even if such a demeanour were attributed to him, he would not be subjected to serious harm amounting to persecution for a Convention reason. In contrast to S395/2002, this is not a case where the Tribunal made a decision adverse to an applicant upon the basis that he could avoid persecution by modifying his customary behaviour.
33 Thus far, I have not found it necessary to refer to the guiding principle, that the reasons of the Tribunal are to be read fairly and as a whole, and not "with an eye attuned to the ready perception of error": see in Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 ("Zhang") at [14] per Moore, Mansfield and Dowsett JJ, citing Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 271-272 and 291. This principle confirms that the Tribunal's reason should be read in their entirety, without undue emphasis on individual expressions that, by themselves, can take on a meaning different from that clearly intended when regard is had to their proper context. The appellant's argument, it seems to me, paid insufficient regard to this principle.
34 For the reasons stated, I would dismiss the appeal, with costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.