Of course, the Tribunal finding that the Applicant failed to live in Australian as a gay man was but one of its findings as to whether the Applicant was a homosexual person. His vague account of his past sexual encounters, his failure to articulate any emotional aspect of discovering his homosexuality, and his inconsistent conduct of returning to Lebanon after his earlier visit to Australia, were others. Each went to the conclusion arrived at by the Tribunal. In its consideration of the matter, the Tribunal asked of the Applicant how it was that he lived openly as a homosexual in Australia? There was no imposition by the Tribunal of a criteria or a particular measure that the Applicant had to live up to. On a number of occasions the Tribunal attempted to elicit from the Applicant those matters which for the Applicant meant, that he lived openly as a gay man in Australia. The Tribunal did not impose its own criteria on the Applicant, but rather attempted to gain a factual context for the Applicant’s claims. The Tribunal asked of the Applicant:-
Contrary to the Applicant’s assertions, I find there was no “relevant test” applied by the Tribunal comprising its own arbitrary criteria, but rather an eliciting of relevant information from the Applicant, and a putting to him of matters that the Tribunal had difficult in accepting. There was no illogicality attending the decision. The Tribunal made a number of factual findings on the evidence before it which lead it to a logical conclusion about the Applicant’s claims.
Monday, 14 October 2013
Court: man is not gay, back home to Lebanon
A Lebanese man’s claim that he was entitled to refugee status because he was gay has been rejected by the Federal Circuit Court. The man sought refugee status within a month of arriving in Australia. He said that he was blackmailed in Lebanon after a co-worker had heard him talking in a toilet cubicle to a male friend. The court accepted that gays in Lebanon were discriminated against and prosecuted.
The court upheld tribunal findings that the man was not homosexual; had not engaged in intimate or sexual relationships with other men, was not overheard discussing his relationship or that this was why he was blackmailed, was not threatened harm of any type by his father, would not engage in homosexual behaviour if he returned to Lebanon and therefore did not accept that he faced a real chance of persecution from his family, society or the authorities because of his sexual identity if he returned, did not have a subjective fear of harm relating to his parent's alleged desire for him to marry; and had not had homosexual relationships in Australia or elsewhere.
Key reasons why the application seems to have been rejected were the belief that the man needed to show that he lived as a gay man in Australia in the 18 months from arrival to the Tribunal hearing: being in a relationship, socialising “as a gay man”, seeking advice and help from gay groups and attending gay clubs.
Judge Hartnett said:
The case is yet another illustration that bringing a refugee case on the basis of being gay needs to be prepared very carefully.
Posted by Stephen Page at 8:55 am