Asd21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 203
•2 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASD21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 203
File number(s): CAG 5 of 2021 Judgment of: JUDGE HUMPHREYS Date of judgment: 2 November 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise visas (“SHEV”) whether the applicants did not receive a fair – Hearing and the decision was not a bona fide attempt to exercise the Tribunal's power – whether the Tribunal failed to give proper genuine and / or realistic consideration to evidence – whether the Tribunal’s decision lacked evident and intelligible justification and was legally unreasonable – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), ss 5J, 36, 425 Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration and Border Protection v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
Minister for Immigration and Citizenship v SZNCR [2011] FCA 369
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 20 October 2021 Date of hearing: 20 October 2021 Place: Parramatta Solicitor for the Applicants: Mr Kikkert Solicitor for the Respondents: Ms Anderson ORDERS
CAG 5 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASD21
First Applicant
ASE21
Second Applicant
ASF21 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The First and Second Applicants are to jointly and severally pay the First Respondent’s costs, fixed in the amount of $7853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The first and second applicants are husband and wife. The third and fourth applicants are their two children. The family first arrived in Australia on 23 April 2011 at the Cocos or Keeling Islands as irregular maritime arrivals. The family claims to be Sri Lankan nationals of Tamil ethnicity, who fled Sri Lanka by reason of a familial association with the Liberation Tigers of Tamil Eelam (“LTTE”). The family also claim fears due to having departed Sri Lanka illegally and would be returning as failed asylum seekers
On 17 February 2016, the family lodged applications for Safe Haven Enterprise visas (“SHEV”) or Protection visas. On 31 July 2017, a delegate of the Minister (“the delegate”) refused to grant the applicants’ Protection visas.
The applicants sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 22 February 2021, the Tribunal affirmed the delegate’s decision not to grant the applicants’ Protection visas.
The applicants now seek judicial review of the Tribunal decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
The Tribunal decision is lengthy amounting to some 25 typed pages and 93 paragraphs.
Paragraphs 1 to 13 of the Tribunal decision set out the relevant background, together with relevant law and policy. Paragraph 14 of the Tribunal decision sets out the claims made by the first and second applicants to the Department of Immigration (“the Department”). The applicant children made no independent claims.
In a Statutory Declaration dated 14 June 2011, the first applicant indicated that he travelled with his parents from Sri Lanka to India in 1990 but returned to Sri Lanka in July 2000. The first applicant worked as a fisherman initially with his paternal uncle. The first applicant married his wife on 3 March 2001 and bought his own fishing boat in 2002.
The first applicant claimed that towards the end of 2009, he was assaulted by four or five people from the Eelam People's Democratic Party (“EPDP”).
In October 2010, the first applicant claimed that members of the Criminal Investigation Department (“CID”) came to his home. The first applicant was taken to a nearby military camp where he was placed in a line up. The first applicant claimed that he was not identified and was later released.
In December 2010, the applicant claimed that the same CID people came to his home and again took him to a military camp. The first applicant was undressed, and left only in his underwear and placed in a cell. The first applicant claimed that he was beaten and punched and accused of being a LTTE sympathiser. The beatings continued for two days, following which the first applicant was released.
In about January 2011, the first applicant claimed that he was again taken by members of the Sri Lankan authorities to the military camp where he was again detained for two days. On this occasion, the first applicant was put in a cell totally undressed, hung upside down and whipped with a thorny stick. The first applicant claimed to still have marks on his body from the beating. The first applicant was also placed in a septic tank and sealed in. The authorities then put rats in the tank. The applicant claims that he was bitten all over his legs by the rats. The authorities then connected electricity to it and told the first applicant to pass water. During this time, the first applicant was being interrogated about his brother, who the authorities said, was connected to the LTTE.
The applicant claims that he was then released, but ordered not to leave home and the next time they came it would be worse. In about March 2011, Sri Lankan authorities came to the first applicant’s home again and took his identity card. The applicant claims that this is when he decided to leave Sri Lanka. The first applicant left Sri Lanka on 23 March 2011 to come to Australia with his brother.
The second applicant, the first applicant’s wife, stated that she left Sri Lanka as her husband had been persecuted because of an assumed association with the LTTE, by way of her husband’s brother. The second applicant claimed that the first applicant was arrested several times and tortured. The second applicant believes that the first applicant will be arrested if he has returned and will eventually be killed. The second applicant will be left as an unmarried mother. The second applicant also claimed that she was suspected of being an LTTE supporter, as her husband is suspected of being an LTTE supporter.
At paragraph 26 of its decision, the Tribunal noted that the delegate raised concerns as to the applicant’s credibility, most particularly in respect of the claim to have fled Sri Lanka in March 2011, when in fact they resided in India before coming to Australia. There was also an absence of documentation that would indicate that the family resided in Sri Lanka, as the applicants had no birth certificates relating to the children, no marriage certificate and no national identification card for the first applicant.
In terms of evidence before the Tribunal, it was noted that there were various medical reports, including a report from a psychiatrist in respect of the first applicant and a second report for the second applicant. The Tribunal also noted medical reports from Dr Susan Baglow. Dr Baglow described various injuries, including scaring she saw on the first applicant.
The Tribunal noted that the medical reports stated that the scaring was in keeping with his stated claim of torture. In the Dr Baglow’s opinion, she was concerned that these unusual scars would mark the first applicant as someone who had previously been tortured in Sri Lanka, putting him at great risk if he were to be returned.
Paragraphs 34 and onwards of the Tribunal decision sets out the various documentary and other evidence given to the Tribunal at the hearing. At paragraph 43 of its decision, the Tribunal noted evidence given to it that the first applicant stated he was in India for about eight months prior to coming to Australia. Issues with relevant timing of when the first applicant claimed that he was being pursued and tortured by the CID were put to him, in that if he had been in India for eight months prior to coming to Australia, he could not have been arrested and tortured by the CID during the period that he now claimed he was in India. The first applicant claimed that it was an error in his evidence, that the year was wrong and it should have been 2009 not 2010.
At paragraph 50 of the Tribunal decision, the second named applicant was asked if she had any claims to make independent of her husband. The second applicant stated that she did not, but that if she was returned to Sri Lanka, her husband would be detained and she could not live without him. The second applicant stated that she was a Tamil woman and feared for herself and the children if they were forced to return to Sri Lanka.
Paragraphs 54 to 84 of the Tribunal decision are a summary of various pieces of country information relied upon by the Tribunal. This includes that there is regular, illegal boat movements between Tamil Nadu in India and Sri Lanka. This includes information on people returning to Sri Lanka having left illegally. The Tribunal noted information that most likely, the first and second applicants would be charged with leaving Sri Lanka illegally upon return. The applicants would be detained at the airport and placed before a Magistrate. If they pleaded guilty, they would receive a fine and be released. The fine could be paid by instalments. The applicants’ children would not be charged due to their age.
Paragraph 59 of the Tribunal decision deals with the issue of scarring on the body of the first applicant. While credible information was available as to torture being committed by Sri Lankan authorities, it was assessed that the risk of mistreatment now in Sri Lanka was moderate and the risk of torture low.
Returning as a failed asylum seeker would not of itself attract an adverse profile with Authorities, unless the person was a high profile LTTE cadre.
Paragraph 64 of the Tribunal decision onwards sets out the Tribunal’s findings. The Tribunal expressed strong reservations as to the applicant’s citizenship, noting that the first applicant did not have a Sri Lankan identification card and the second applicant has an identification card issued some 40 years ago. The first applicant provided a birth certificate showing he was born in Sri Lanka. Under Indian citizenship laws, if the first applicant’s father was Indian, as claimed, then the first applicant would be an Indian citizen by descent. There was no evidence as to the nationality of the children of the applicants. The Tribunal, however, accepted that the second applicant and the children were Sri Lankan citizens. While the Tribunal accepted that all of the applicants are of Tamil ethnicity, it did not accept that this alone gave rise to a well-founded fear of persecution.
At paragraph 74 of its decision, the Tribunal did not accept that the first applicant would be imputed with LTTE associations due to familial ties. The Tribunal did not accept the involvement of the first applicant’s brother with the LTTE.
At paragraph 76 of its decision, the Tribunal does not accept that the first applicant suffered harm at the hands of Sri Lankan authorities by reason of a claimed association with the LTTE. The Tribunal noted very specific dates as to when the harm claimed to be suffered occurred, but notes that the first applicant was independently confirmed to be residing in India at the time.
The Tribunal noted the medical evidence as to scarring and was mindful of the fact that evidence indicated that this could affect the applicant’s capacity to give evidence. The Tribunal determined that the medical evidence of scarring was such that it was not determinative of torture by Sri Lankan authorities. The Tribunal was not satisfied that the first applicant’s scarring would result in him being imputed with an LTTE profile by authorities if returned to Sri Lanka.
Accordingly, the Tribunal was not satisfied that the applicants met the relevant criteria for either refugee protection or complimentary protection and affirmed the delegate’s decision.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon, are set out in an Initiating Application filed with the Court on 22 March 2021. They are as follows:
Ground One
The Tribunal committed a jurisdictional error as the first and second applicants were not in a fit state to present evidence before the Tribunal. As such, the applicants did not receive a fair hearing and the decision was not a bona fide attempt to exercise the Tribunal’s power.
Particulars
a. At paragraph [38] of the decision record, the Tribunal noted that the applicants’ migration agent “provided a letter from the applicant’s doctor indicating that the applicants are experiencing stress and anxiety…”
b. At paragraph [79] of the decision record the tribunal “acknowledge[d] that the first and second named applicants would be experiencing trauma, stress and anxiety” and was “mindful of this in terms of the capacity of the applicants to provide their evidence.”
c. It is the applicants’ position that due to being impacted by trauma, stress and anxiety, the applicant did not have a genuine opportunity to put forward their case.
Ground Two
The Tribunal fell into jurisdictional error by failing to give “proper genuine and/ or realistic consideration” to matters before it by not genuinely engaging with medical evidence dealing with the first applicant’s scars and injuries.
Particulars
a. The first applicant claims that he was tortured by EPDP and CID officers by being underdressed, sexually assaulted, hung upside down and whipped with a thorny stick, placed in a septic tank with rats, and then electrocuted (see para [19] and [31] of the decision record).
b. A medical report from Dr Susan Baglow at Companion House noted the following scars or ongoing injuries:
c. scars on his upper back including pin prick black marks; irregular circular 3cm x 5 cm scar/discolouration of skin, dark brown in colour; 1 cm lesion; right sternoclavicular joint that was more pronounced than the left; right toe was tender at mtp 5 and dip jt 5 was hyperflexed and swollen; toe on his left foot was similarly deformed but not tender; The first applicant had been told that x-rays revealed a visible fracture in his toes that needed surgery; linear fine white scars of his right mid and distal medial thigh, the longest being 7 cm; right mid back and right scapular area showed 1 x ½ cm scars; dark scars on right upper back and upper arm; ½ cm dark scar right lower leg lateral.
d. Dr Baglow stated “All of the above injuries were in keeping with the stated causes” and stated “It is my concern that these unusual scars will mark him as someone who has previously been tortured in Sri Lanka and put him at great risk should he be returned to Sri Lanka” (please see paragraph [33] of the decision record).
e. At paragraph [79] the Tribunal did not “accept that the evidence of such scarring establishes that the first named applicant was tortured by the Sri Lankan authorities as he claims. The evidence of a rat bite, damaged toes or marks from pine sticks is not in the view of the Tribunal determinative of torture by the Sri Lankan authorities.”
f. At paragraph [87] the Tribunal found that it “is not satisfied that the scarring identified is specific to war events or torture and would therefore result in the authorities perceiving the first named applicant to be associated with the LTTE country information”
g. The Tribunal did not make any finding in regards to what the cause of his scarring and injuries was.
h. The Tribunal fell into error by rejecting the first applicant’s evidence of being tortured without even considering whether or not there was any other explanation for the scarring and injuries. By doing this the Tribunal failed to give “proper genuine and / or realistic consideration” to the evidence and issues raised.
Ground Three
The Tribunal fell into jurisdictional error in that its decision lacked evident and intelligible justification and was legally unreasonable.
Particulars
The applicant repeats the particulars 2a to 2f above.
g. It was legally unreasonable for the Tribunal to dismiss the first applicant’s claim that he was tortured without even considering any alternative explanation for his scars and injuries.
THE APPLICANT’S SUBMISSIONS
The legal representative of the applicants submitted in relation to ground one that the first and second applicants were not fit to give evidence before the Tribunal and as a result, they did not receive a fair hearing. Reliance was placed on a medical opinion from a Dr Harrison in a report dated 3 March 2019, that the first applicant was “emotionally labile… he expressed concern as to his inability to remember specific trauma and torture he suffered at the hands of Sri Lankan authorities… His thought form showed narrative incoherence”. In Dr Harrison’s opinion, this would “restrict his ability to recount a coherent personal history and engage with the bureaucratic process to seek asylum or to recall dates and details fluidly”.
In relation to the second applicant, Dr Harrison stated that she suffered from anxiety and depression, secondary to a medical illness. This would “be associated with her poor recall and inconsistencies in information given…therefore fragmentation in [her] narrative”. A registered psychologist opined that the second applicant “experiences panic attacks at which point she loses the ability to concentrate, and she is unable to focus on the topic of conversation.”
In SCAR v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1481 (“SCAR”), O’Loughlin J stated at [30] that there was “unchallenged evidence that the applicant was not in a fit state to represent himself when the Tribunal considered his application.… When an applicant is treated unfairly by a decision-maker, I do not think that it could be said that the decision was a bona fide attempt to exercise the Tribunal’s power.”
It was submitted that the case did not rest on bad faith by the Tribunal, this was not alleged. The Tribunal was aware of the mental condition of the first applicant. In these circumstances, the fact that the Tribunal conducted the hearing when the applicant was not in a fit state involved jurisdictional error: (see; SCAR at [26]).
Ground two alleges that the Tribunal failed to give “proper, genuine and/or realistic consideration” to the medical evidence before it. It was submitted that there was clear medical evidence before the Tribunal in the form of the report from Dr Baglow that the first applicant had injuries consistent with the torture he described at the hands of Sri Lankan authorities. At paragraph 80 of its decision, the Tribunal found that it did not “accept that the evidence of such scaring establishes that the first named applicant was tortured…as he claims”. At paragraph 87 of its decision, the Tribunal found “it is not satisfied that the scaring identified is specific to war events or torture and would therefore result in the authorities perceiving the first named applicant to be associated with the LTTE country information”.
At paragraph 80 of its decision, the Tribunal made an adverse credibility finding against the first applicant based on its view that the first applicant claimed that some of these traumatic events occurred at the time when he was not in fact residing in Sri Lanka. This led the Tribunal to conclude that the first applicant was not tortured at all. However, at paragraph 43 of its decision, the Tribunal noted that “the applicant stated that it was an error in his evidence the year was wrong and it should have been 2009 not 2010”. At no point in time did the Tribunal make a finding as to what the cause of his scarring and injuries were. Accordingly, the Tribunal failed to give proper genuine consideration to the applicant’s representations and did not engage with them. To do so, the Tribunal should have examined whether there was an alternative explanation to his scars and injuries: (see; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107).
The Tribunal’s decision must reflect awareness on the part of the Tribunal of “consciousness of contents” of the materials on which the applicant seeks to rely, and also an evaluation of the materials and a “process of weighing evidence and preferring some over the other”: (see; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114).
It was submitted that the error was material in that had the Tribunal properly considered the medical evidence rather than rejecting it, the Tribunal may have reached a different conclusion. The error is material in the sense contemplated by the High Court in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [30].
In relation to ground three, it was submitted that the Tribunal fell into error in that its decision lacked an evident and intelligible justification, and in so doing exhibited legal unreasonableness: (see; Minister for Immigration and Border Protection v Li (2013) 249 CLR 332).
A fundamental claim in the applicants’ case is that the first applicant was tortured at the hands of Sri Lankan authorities and fears for his safety if returned. The medical evidence was that the first applicant’s injuries and illnesses, both mental and physical, were consistent with the list of events described by him. It was submitted that it was legally unreasonable for the Tribunal to give no weight or consideration to the evidence put forward by the first applicant or come to the opinion that the trauma experienced by the first applicant did not occur. Not only did the Tribunal refuse to accept these events, the Tribunal failed to justify its reasoning by providing an alternative explanation as to the scars and injuries on the first applicant’s body. In so doing, the Tribunal failed to provide an intelligible justification for its reasoning.
THE FIRST RESPONDENT’S SUBMISSIONS
On behalf the respondents, the legal representative submitted in summary that pursuant to
s 425 of the Migration Act 1958 (Cth) (“the Act”), the Tribunal invited the applicants to appear before it to present evidence and arguments in support of their application. The applicants have failed to demonstrate that the Tribunal’s procedure, in the circumstances of their application, was insufficient to discharge its obligations under s 425 of the Act or otherwise, and to the extent that the consequences of any departure from those rules affect jurisdiction: (see; Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 at [35]).
No jurisdictional error is made out by ground one because the Tribunal’s reasons demonstrate that the applicants were afforded the meaningful opportunity to present evidence and make arguments regarding issues arising in relation to the review. It was submitted that the Tribunal gave “proper, genuine and realistic” consideration to the matters it was required to and did not make a decision lacking an evident and intelligible justification.
The decision that was arrived at by the Tribunal was open to it on the medical evidence and the information before it. The assertions made in grounds two and three do not rise above an invitation for this Court to undertake impermissible merits review: (see; Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [32]-[35]).
CONSIDERATION
It is well settled that the Tribunal is not required to accept uncritically any and all claims made by an applicant: (see; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out: (see; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALR 347 at [348]).
It is for the applicant to satisfy the Tribunal, being the relevant decision maker, that they meet the criteria for being a refugee: (see; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).
The test for legal unreasonableness is ‘stringent’ and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that a Court disagrees with the consideration or the evaluate judgements made by the decision maker: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30] and [113]). The Court cannot undertake impermissible merits review.
Ground one asserts that the applicants were unfit to give evidence and as a result, the hearing and subsequent decision was not a bona fide attempt to exercise the Tribunal’s power. The Court rejects this assertion. The medical evidence was clear that the applicants would be experiencing trauma, stress and anxiety. The medical evidence at no point indicated they were ‘entirely unfit’ to give evidence at all. The Court also notes the applicants were represented at the hearing. No evidence was put to the Court that the applicants requested, and were refused, a break during the Tribunal hearing or that they requested the hearing be adjourned as they were unable to effectively participate or continue with the hearing.
The above points as to the applicants having a fair hearing. Further, the applicants were given the opportunity to provide post hearing submissions. No claim is made, or evidence provided, that the applicants were completely unable to provide evidence to the Tribunal or were unable to instruct their representative.
The Tribunal expressly acknowledged the medical evidence at paragraph 79 of the decision record as to the stress and anxiety that the Tribunal hearing would cause the applicants. The Tribunal was mindful of this in terms of the applicants’ capacity to provide evidence, particularly in relation to dates. This is a long way, however, from the requirement outlined by Tracey J in Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 of being ‘entirely unfit’ to attend a tribunal hearing and answering questions.
The Court is not satisfied, based on the medical evidence, and the lack of any complaint at the time of the hearing with the procedure adopted, that the applicants were deprived of a meaningful opportunity to participate in the hearing as mandated by s 425 of the Act: (see; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [19]). Ground one has no merit.
Grounds two and three are variations of a theme. They can be dealt with together. The grounds assert either a failure to give proper genuine and realistic consideration to the medical evidence before the Tribunal or that the decision lacks an evident an intelligible justification and was legally unreasonable. In both grounds, the particulars are the same. In considering the applicants’ claims, the Court needs to exercise great care that it does not unconsciously slide into impermissible merits review.
The Tribunal accepted that the injuries including scarring on the first applicant as described by Dr Baglow were present, together with the other medical evidence as to the psychological issues with the second applicant, including depression and anxiety. The Tribunal did not find however, that the presence of the scarring on the first applicant as described by Dr Baglow was determinative of torture at the hands of Sri Lankan authorities. In so doing, the Tribunal placed some weight that the claim of torture was initially described as occurring at a time when the applicant was not in Sri Lanka, but in India. This had come to light following investigations by Australian authorities. The first applicant then stated that he got the year wrong and the torture occurred in 2009, not 2010 as originally claimed. There were also other issues with the claimed citizenship of the first applicant, as well as a lack of documentation that would have reasonably been expected to available, including birth certificates or other evidence of nationality for the children, it being claimed they were born in Sri Lanka.
As indicated above, the test for legal unreasonableness is stringent and will only arise in rare cases. The same can be said in relation to a failure to give a realistic and genuine consideration to the medical evidence.
First, the Court is satisfied that the Tribunal gave genuine and realistic consideration to the medical evidence. It accepted that the applicants suffered from trauma, stress and anxiety. The Tribunal accepted the medical evidence of scarring on the first applicant, considered it and rejected that it was determinate, in itself, as evidence of torture at the hands of Sri Lankan authorities.
It is complained that the Tribunal was, in the circumstances of this case, required to make a finding, that if the scaring was not evidence of torture by Sri Lankan authorities, how it occurred. The Court rejects this assertion. The onus of proof lies with the applicant. The applicants seek impermissibly through this submission to require the Tribunal to possess rebutting evidence before holding that their assertion as to the cause of the scaring is not made out: (see; AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]).
In rejecting that the scarring was caused by Sri Lankan authorities, the Tribunal considered the issue of the inconsistency in the timing of when the alleged torture took place. In so doing, the Tribunal cautioned itself as to the issue of the capacity of the applicants to provide evidence as set out in the medial evidence due to the impact of stress, trauma and anxiety. It may be implied that this issue did not, to the Tribunal’s mind, explain the clear timing inconsistency as to when the alleged torture took place and the issue with the precise citizenship of the first applicant. The Tribunal also had considerable concerns as to the lack of documentation provided by the applicants to confirm their citizenship and places of residence
Secondly, the Tribunal was not of the view that the presence of the scaring on the first applicant, if returned to Sri Lanka, would not of itself give rise to an adverse profile with Sri Lankan authorities. The Tribunal was not required to accept the opinion of Dr Baglow as to the risk associated to the first applicant as regards the presence of scarring on the first applicant. The Tribunal correctly referred to country information to assess the risk to the applicants if they were returned, in relation to each of the claims they had made. This included their ethnicity, imputed LTTE association, returning as failed asylum seekers and being illegal departees from Sri Lanka. The Tribunal further assessed that the second applicant would not be imputed with an adverse profile, simply by being the wife of a man with scaring.
There was no requirement for the Tribunal to make any alternative finding as to the cause of the scarring. That was not its task. The Tribunal’s task was to consider the evidence provided and to determine whether the claims for protection were made out, together with the risk of the applicants returning to Sri Lanka some 10 years after they left it, giving consideration to relevant country information as to the risks now, not when the applicant’s left.
It may be that another Tribunal, given the evidence, may have applied a different reasoning process and arrived at a different conclusion. However, that is not sufficient to ground a finding of illogical or irrational. Provided the conclusion reached was available on the evidence, the fact that it was preferred to a different available conclusion does not ground jurisdictional error.
Nor is the Court satisfied that the findings reach the stringent threshold for legal unreasonableness. The fact that this Court may disagree with (and upon which it makes no finding) the evaluative judgement of the Tribunal as regards the cause if the accepted scarring on the first applicant does not ground a basis for a finding of legal unreasonableness. That would require the Court to engage in impermissible merits review.
The Court has no doubt that the applicants have real subjective fears of harm if returned to Sri Lanka. That is not the test, however. For protection obligations to arise, there must be objective evidence of risk of serious or significant harm or persecution upon return to the receiving country as outlines in s 5J, and s 36(2)(a) and (aa) of the Act.
Grounds two and three have no merit.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Dated: 2 November 2021
SCHEDULE OF PARTIES
CAG 5 of 2021 Applicants
Fourth Applicant:
ASG21
0
17
1