BHG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 324

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BHG20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 324

File number(s):	MLG 1040 of 2020
Judgment of:	JUDGE A KELLY
Date of judgment:	6 May 2022
Catchwords:	MIGRATION – Subclass XA-866 Permanent Protection visa – application for judicial review of decision of Administrative Appeals Tribunal – protection claims made relating to intersex status – where applicant had not raised non-refoulement issues previously in the merits review of the cancellation decision – where applicant claimed to fear harm in Sri Lanka when not in company of mother or wife – where applicant had returned to Sri Lanka to live for an extended period – application dismissed.
Legislation:	Migration Act 1958 (Cth), s 65, 411, 424, 424A, 474, 476, 501
Cases cited:	BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 Craig v South Australia (1995) 184 CLR 163 ETA067 v Republic of Nauru (2018) 92 ALJR 1003 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Home Affairs v Buadromo (2018) 267 FCR 320 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Republic of Nauru v WET040 (No 2) (2018) 362 ALR 235 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 XXXX v Minister for Home Affairs (Migration) [2019] AATA 751
Division:	Division 2 General Federal Law
Number of paragraphs:	62
Date of hearing:	3 May 2022
Place:	Melbourne
Solicitor for the applicant:	Playfair Legal Pty Ltd
Counsel for the applicant:	Mr A. Aleksov
Solicitor for the first respondent:	Sparke Helmore
Counsel for the first respondent:	Mr D. McDonald-Norman

ORDERS

MLG 1040 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BHG20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	6 MAY 2022

THE COURT ORDERS THAT:

1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.

2.The application filed on 27 March 2020 be dismissed.

3.The applicant pay the costs of the first respondent fixed in the sum of $7,853.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order 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

KELLY A, J

Introduction

1. By application dated 27 March 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 25 February 2020 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Subclass XA-866 Permanent Protection visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2. The application should be dismissed.

   Background

3. The applicant, aged 52 years is a Sri Lankan national who is presently in detention following the cancellation of a Skilled Independent visa upon his conviction for seven counts of sexual offences, such convictions being upheld on appeal.  Following the cancellation of that visa, on 23 May 2019, the applicant lodged a claim for a protection visa, the subject of the present application.  By the statement that accompanied his protection visa application at [20]-[25] and [32]-[35], the application advanced as a ground for protection that he identified as intersex.

4. The applicant who married in 1995 is father to a child born in 2000.

5. The applicant has a series of tertiary qualifications each of which was obtained while studying in Sri Lanka.  From 1989 to 2003, the applicant studied and completed a Bachelor of Human Biology in Colombo.  From 1996 to 2001, he studied and completed a Diploma of Business.   

6. The applicant also held employment in Sri Lanka in a variety of positions.  From 1989 to 1994, the applicant was employed as a sale representative for a vehicle import trader in Colombo.  In 1994, the applicant was a manager of a car sales and import business.  From 1996 to 2001, the applicant trained and worked part-time as a beautician.  As is apparent, much of this employment overlapped with the tertiary study that he was engaged in.

7. On 7 February 2001, the applicant came to Australia as the holder of a Student (Subclass 560) visa.  On 6 June 2003, he left Australia for Sri Lanka where he remained for about 4½ - 5 years.

8. While in Sri Lanka during this period, the applicant studied, worked as a beautician and then commenced his own business.  He returned to Australia on 15 April 2008 as the holder of his skilled independent visa, but ten days later he again departed for Sri Lanka.  He returned to Australia on 27 June 2008, studied a Certificate IV in Beauty Therapy from 2008 and 2010, and then worked as a beautician from 1 January 2009 to 9 February 2014.

9. On 31 August 2016, the applicant’s visa was cancelled under s 501(3A) of the Act following the applicant’s conviction on 30 October 2013 of seven counts of sexual penetration without consent committed in January and February 2011. The applicant appealed against his conviction which appeal was dismissed. On completing his sentences for those convictions, thereupon the applicant was transferred to immigration detention where he currently resides.

10. Following notice of cancellation of his visa, on 21 September 2016, the Department of Home Affairs received the applicant’s request to revoke the cancellation of the skilled visa.  A delegate of the Minister refused the request on 21 January 2019.  The applicant made an application to the Tribunal to review the delegate’s decision.  A hearing for the application to review the decision took place on 8 April 2019.  At that hearing, the applicant was represented by senior counsel.  In the course of the hearing, his counsel confirmed that no non-refoulement issues were relied upon as a reason why the Tribunal should revoke the cancellation decision: XXXX v Minister for Home Affairs (Migration) [2019] AATA 751, [85].

11. On 24 April 2019, the Tribunal affirmed the decision on review.

12. On 23 May 2019, the applicant lodged his application for the visa, claiming protection on the basis of a well-founded fear of persecution, alternatively a real risk he would suffer significant harm if returned to Sri Lanka on account of his Catholic faith, intersex status, close ties to Australia and criminal history.   On 2 July 2019, a delegate, not being satisfied that the applicant was a person in respect to whom Australia had protection obligations, refused to grant the visa. 

13. On 3 July 2019, the applicant lodged an application for review of the decision by the Tribunal. 

14. Certain decisions to refuse to grant a protection visa meet the definition of a Part 7-reviewable decision: Act, s 411(1)(c). Part 7 of the Act provides for the review of Part 7-reviewable decisions and, relevantly, by s 424, authorizes the Tribunal to get any information it considers may be relevant to the review. Further, by s 424A, the Tribunal must give to an applicant clear particulars of any information that it considers would be the reason, or a part of the reason for affirming the decision that is under review. In this case, the Tribunal did so.

15. On 5 August 2019, the Department provided an invitation to the applicant to respond to non-refoulement issues. The Tribunal informed the applicant he had not raised non-refoulement issues previously in the review of the cancellation decision and that his not having done so had been confirmed by his senior counsel at that hearing [2019] AATA 751, [85] (a copy of which was provided to him). It was put to the applicant that as he had only recently claimed to fear harm on the basis of his intersex status, the Tribunal considered this information, subject to his comments, was a recent fabrication: Reasons, [23]. Relatedly, the Tribunal informed him that, subject to his response, the fact of his having not raised non-refoulement issues in the merits review of the cancellation decision may be relied upon in the consideration whether he had a well-founded fear of persecution and whether there were substantial reasons for believing he was at a real risk of suffering significant harm: Reasons, [24].

16. In all of those circumstances, the applicant was invited to provide the Tribunal with further information showing whether: he had undertaken any medical examination or chromosome testing evidencing his intersex status; the sentencing judge had been asked to take his intersex status into account, and; he had been treated as an intersex person while incarcerated: Reasons, [25]. The applicant’s representative responded to those invitations on 12 August 2019 by making a submission, the detail of which was set out by the Tribunal in its Reasons at [27].

17. The applicant’s representative confirmed, amongst other things that the applicant’s claims for protection on the basis of his intersex status had been raised only recently.

18. On 26 September 2019, the applicant attended the hearing, doing so with the assistance of a Singhalese interpreter, via video conference while in immigration detention.  The Tribunal took oral evidence from the applicant and his wife, including that a further opportunity was afforded to the applicant to comment upon why he had not raised his intersex status as a basis for non-refoulement on the cancellation of his visa: Reasons, [29].  In the course of doing so, the Tribunal observed that having regard to the seriousness of the merits review of the cancellation decision “it was difficult to understand why he would not raise a reason not to cancel his visa when represented by Senior Counsel.  In response, [the applicant] said his family were scared it would be raised in the media, and he was forced by his family not to disclose his intersex status.  He said there was no other reason he did not disclose this information at the time his visa was cancelled.”  Reasons, [29].  On 3 October 2019, post-hearing submissions and documentation were provided by his representative. 

19. On 16 December 2019, the Tribunal notified the applicant of a report on Sri Lanka produced by the Department of Foreign Affairs and Trade following the hearing of the review application.  The Department informed the applicant they are required to take into account the report for protection status determination insomuch as it was relevant to the decision.

    Tribunal’s decision

20. On 25 February 2020, the Tribunal made a decision affirming the Minister’s decision to refuse to grant the protection visa and provided a statement of reasons for doing so.

21. Each of the applicant’s protection claims respecting his religion, intersex status, sexual orientation, national identity, criminal history, inability to access medical treatment, and ability to support himself were addressed in the Reasons at [30], [58], [59], [99], [100], [101], [116], [121], [126], [137], [141], [145], [148], [154]-[156].

22. Having regard to the narrow basis upon which judicial review is sought, it may be noted that the Tribunal’s consideration of the claim and evidence related to the issue of intersex status was addressed in the Reasons at [60]-[121].  As is immediately apparent, the Tribunal dealt with the claim and evidence in some particular detail.  By way of overview, features of the Tribunal’s reasoning in relation to this claim may be discerned from the following:

    30.[The applicant] claims to fear harm due to his religion and as a member of a particular social group because of his gender and sexuality. He also states he fears harm as he will be perceived to be transgender and a sex worker. He also claims to fear harm as a person who has been convicted of criminal offences in Australia, and due to a perception that he is Australian. The Tribunal has considered each of these claims against the refugee criteria and the complementary protection criteria.

    lntersex status

    . . .

    99.The Tribunal finds [The applicant] does not have a well-founded fear of serious harm as a result of being intersex because:

    ·He has always maintained a male identity and appearance both in Sri Lanka and Australia, and will continue to do so in the future.

    ·This matches his identity cards and birth certificate.

    ·He is married and has a biological child with his wife which is consistent with a male gender.

    ·His intersex status is not apparent to others.

    ·He has been able to study, live and work in Sri Lanka without having experienced serious harm despite being intersex from birth.

    ·He returned to Sri Lanka for a period of five years without suffering harm despite his intersex status being present since birth.

    100.In light of these factors, and the way in which he has lived in Australia as a male, the Tribunal finds there is no reason [the applicant’s] intersex status would become known or that he would suffer persecution as a result of his intersex status. It rejects the claims that he is likely to be arrested or incarcerated due to his intersex status and face inhuman and degrading treatment as a result.

    . . .

    116.The Tribunal finds as [the applicant] does not have a readily apparent intersex status or readily apparent female biological characteristics, and his appearance and dress as a male matches his identity documents it finds there is only a remote chance he would be perceived to be transgender. It therefore finds there is no real chance he would be persecuted because he is perceived to be transgender. It finds that [the applicant] will continue to appear and dress as a male in the foreseeable future as this is his practice both in Sri Lanka and in Australia, where he was free to adopt a female appearance if he wished to do so.

    . . .

    154.The Tribunal has found that [the applicant] does not face a real chance of serious harm due to his religion, intersex status, a perception that he is transgender, a perception he is homosexual, a perception he is a sex worker, a perception he is Australian or because of his criminal history. For the same reasons, the Tribunal finds he does not face a real risk of significant harm.

23. Particular aspects of the Tribunal’s reasoning are addressed in further detail below, however, for immediate purposes it may be noted, on this application, the applicant seeks to impugn those Reasons on the substantive basis that the Tribunal did not actively engage with his evidence and failed to deal with other evidence said to be critical evidence that was corroborative of this claim.  Stated in more direct terms, the applicant complains of the rejection of his claim that he was always and constantly accompanied by his wife and/or mother whenever he went out in Sri Lanka and, as neither of those persons would be with him in Sri Lanka he now held a well-founded fear of persecution and had substantial reasons for believing there was a real risk he would suffer significant harm.

    Procedural history

24. On 27 March 2020, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by his solicitor and to which he exhibited a copy of the Tribunal’s decision and Reasons.

25. By a response filed on 10 June 2020, the Minister opposed the application on the basis the application be dismissed and the applicant pay the first respondent’s costs.  

26. On 1 September 2021, the applicant filed submissions.  Two grounds were pressed, each of which centred on the claim to being “intersex”.

27. He claimed that in the past he would only go out in public and therefore avoid fear of harm when in the company of his mother and, subsequently, wife.  Given that his mother was now too old to accompany him and his wife would not be returning to Sri Lanka with her husband, he therefore would lack any protection from abuse when out in public.  At Reasons [75] the Tribunal found, contrary to his claim, the applicant had not previously always been accompanied in public by his female relatives.  The applicant contended that this critical finding for which no reason was given other than to say it was unrealistic, and absent any admitted exceptions to the practice, was the basis for the decision not to grant the visa.  And, that given there was no articulation of a reason for this finding, it therefore followed that the Tribunal did not have a lawful reason for refusing to accept the applicant’s claim of always having been accompanied by female relatives when out in public.  Further, it was contended that the Tribunal failed to consider important corroborative evidence from the applicant’s wife.

28. On 1 September 2021, a further affidavit was filed on behalf of the applicant exhibiting a transcript of the evidence given by the applicant’s wife.

29. The first respondent filed written submissions on 8 November 2021.  With reference to the applicant’s first ground, the respondent cited Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 as having established that the Tribunal need not have rebutting evidence in order not to accept a claim. And, that it was open to the Tribunal to consider that the applicant was not accompanied at all times by female relatives, especially in the light of the “full life” the applicant had led in Sri Lanka. With regard to the second ground of review and the issue of corroborative evidence from the applicant’s wife, it was contended that the Tribunal was clearly cognisant of the wife’s oral evidence; the evidence could be deemed to be too general in nature and therefore ‘so tepid that its rejection was swept up in the rejection of the applicant’s claim’ and; the evidence was not from an independent party.  It was further submitted that the Tribunal need not refer to every piece of evidence, and even if the evidence was overlooked, the error was immaterial as indicated by the points submitted above.

30. On 17 November 2021, a joint list of authorities was filed with the Court.

31. A notice of address for service was filed with the Court on behalf of Sparke Helmore for the first respondent on 2 February 2022.

    Judicial review

32. If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].

33. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

    Grounds of review

34. Although the applicant had identified three grounds of review, only two were pressed.

1. It is of some importance to recognise that the origin of each ground of review lay in the hearing before the Tribunal.  It is clear from the Reasons at [38] that when the decision-maker raised with the applicant at the hearing the fact of his having returned to Sri Lanka for five years served to undermine his claim to a protection visa he was invited to comment and responded in these terms: “[The applicant] said he went back with his wife and his wife was always with him and when he was at work and when he was at lectures for his course his wife also went with him.”  Further, the Tribunal member recorded at [38]: “On being asked how being with his wife or mother would protect him, he said nothing will happen because he had a second person with him.”  From the whole of the Reasons little, if anything, more was said by the applicant in support of the suggestion that he was constantly or always accompanied by his wife and/or mother when in public, at work or at University over so many years.

2. Relatedly, as the Reasons at [27] record, the extensive submissions made by the applicant’s representative in response to the invitation to comment upon why his intersex had not been raised during his criminal trial or on the merits review of the cancellation decision, nowhere in those submissions was there a suggestion that while in Sri Lanka the applicant had always or constantly been accompanied by one or other of his wife or mother while in public, and at work and while attending lectures at University.  Accepting that those submissions were provided to address a separate issue (i.e. the criminal trial, sentencing and cancellation application), at the least the absence of any reference in those submissions to this evidence lends some support for an inference that the issue was only raised in evidence in the course of the hearing before the Tribunal in the manner set out in the Reasons at [38], [70], [74] and [76]. 

   Ground 1: unreasonableness and illogicality

3. Ground 1 reads:

   The decision of the Tribunal is affected by unreasonableness or illogicality, in that at Reasons [75], the Tribunal expressed a critical conclusion not supported by any lawful reason (or any reason), from which it is to be inferred that the Tribunal did not have in mind any lawful reason

4. Although Ground 1 was not informed or more precisely defined by any particulars, it is possible to identify the impugned conclusion from the Reasons at [75] where, in substance, the Tribunal did not accept the applicant’s claim or evidence that “he was constantly accompanied, including at work and to lectures at the University by his wife or his mother.”  It reads:

   The Tribunal does not accept he was constantly accompanied, including at work and to lectures at the University by his wife or his mother.  His denial that there were any exceptions to being constantly accompanied was unrealistic and the lack of acknowledgement of any exceptions makes it difficult to accept that this was the case.

5. The applicant’s submissions proceeded on the basis that the Reasons at [75] contain no reason for the finding which it contains but rather constituted an assertion that it was unrealistic to believe that the applicant had been constantly accompanied, in effect, at all times, by either his wife or mother when outside, at work or at lectures.

6. The Minister submitted the finding at [75] was neither unreasonable nor illogical.

7. The Tribunal did not accept that claim. In particular, the Tribunal observed that he had not encountered any issues on this account despite living in Sri Lanka for extended periods.

   Resolution

8. Without intending any criticism whatsoever, the applicant’s submissions did not refer to, but rather assumed the applicable principles to be well-settled.  Equally, no suggestion arose in the course of the hearing which put in issue the correctness of the principles as stated in the written submissions filed on behalf of the Minister.  Having regard to the way in which the application was presented for determination it is unnecessary to examine those principles in particular detail.

9. I agree it is well established that the Tribunal need not have rebutting evidence in order not to accept a claim: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348, (Heerey J); see also, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [65]. Nor was it in contest that there is a high bar to finding unreasonableness and illogicality: see, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124], [129], [130], [133], [135]. The circumstance that another administrative decision-maker, or the court, might prefer some other conclusion to that which is the subject of challenge is not, of itself, sufficient basis to support a conclusion of jurisdictional error.

10. As concerned the applicant’s claim to a visa based upon intersex status, and indeed in relation to each other claim, the substantive questions to be addressed by the Tribunal were whether he held a well-founded fear of persecution and/or whether there were substantial reasons for believing there was a real risk he would suffer significant harm if returned to Sri Lanka.

11. As noted above, the Tribunal’s reasoning dealt in detail with this claim.  First, having regard to ss 424 and 424A of the Act, it raised squarely for the applicant the absence of any reliance upon his intersex status either in his submissions to, or at the hearing before, the Tribunal upon the merits review of the visa cancellation decision in 2019. Secondly, it informed the applicant that the fact of the recent claim to fear harm on this basis would, subject to his comments, be treated as a recent fabrication.  Thirdly, it explained that its reliance upon the absence of such a claim upon the merits review of the cancellation decision would ground a finding, subject to his comments, that he did not have a well-founded fear of persecution or that there were substantial reasons for believing there was a real risk he would suffer significant harm if returned to Sri Lanka: Reasons, [23]-[24]  Fourthly, it afforded the applicant an opportunity to address those matters: Reasons, [25]-[26]. Fifthly, it examined in detail the submission which was made in response to this issue: Reasons, [26]-[27]. Sixthly, the Tribunal provided the applicant a further opportunity at the hearing to address the issue: Reasons, [29].

12. Contextually, it is readily apparent from the Reasons at [22]-[29] and in particular the last of those paragraphs that the Tribunal was putting to the applicant that the failure to raise or rely upon intersex status in circumstances where he was seeking a merits review of a cancellation decision after his incarceration upon conviction (after an unsuccessful appeal), for seven offences involving sexual penetration without consent was all the more difficult to understand having regard to the seriousness of cancellation and any review of that decision.  Put another way, the statutory context of the application for such merits review was that the applicant’s visa had been cancelled.  And it was not in dispute the applicant did not pass the character test.  In such circumstances, the only issue was whether any other reason existed why the mandatory cancellation of the visa should be revoked: XXXX v Minister for Home Affairs (Migration) [2019] AATA 751, [85]. [113]. Having regard to those matters, the Tribunal was clearly conscious that if ever there existed a reason to put forward each and every substantive claim in favour of revocation, it was at that merits review where the applicant was represented by senior counsel who, as noted, had instead confirmed no non-refoulement issue was relied upon. That is to say, the issue of refoulement had been squarely raised and dismissed from consideration.

13. Against that background, the Tribunal’s consideration of the claims and evidence recognised that the applicant had both worked and studied in Sri Lanka for a considerable period, including that he had returned to Sri Lanka for about five years and the fact of him having done so might be thought to undermine his claim: Reasons, [31]-[38].

14. After dealing with the applicant primary claim to protection (religion) at [45]-[59], the Tribunal considered the claim based upon intersex status: Reasons, [60]-[101]. As stated, those Reasons confirm the Tribunal gave detailed consideration to this claim. This court should be cautious in reaching a conclusion that the Tribunal’s treatment of this claim was legally unreasonable or illogical particularly having regard to the comprehensive and detailed nature of those reasons. Although the focus of Ground 1 was upon the content of the Reasons at [75], it is necessary to evaluate the challenge to that reasoning in the broader context of the Tribunal’s treatment of the intersex and related claim based upon homosexuality at [60]-[120]. In my opinion, upon a fair reading of that reasoning, the Tribunal paid close regard to the nature of the applicant’s lifestyle including his work and study over many years in rejecting the claim made by the applicant in the course of the hearing that he was constantly accompanied either by his mother or wife including at work and while studying at University over so many years.

15. The Tribunal reasoned at [72]-[75] as follows:

    72.[The applicant] claims to fear harm are difficult to reconcile with his education and employment history in Sri Lanka. He has successfully studied in Sri Lanka and has achieved a Bachelor of Human Biology, a Diploma of Business, a Bachelor of Business majoring in Marketing and Management and qualifications in beauty. He has worked for others as well as establishing and owning a business as a beauty therapist. While undertaking his work in car sales and imports for a family business arranging import and customs, he had contact with officials with no record of problems.

    73.Despite living in Sri Lanka for extended periods of time as an intersex person since birth, he has not been arrested or been without either employment or being in education in the period he was in Sri Lanka, other than one period of two weeks between ceasing employment as a beauty therapist and commencing his own business. [The applicant] said he has never been arrested in Sri Lanka and had not had any problems with authorities in Sri Lanka.

    74.[The applicant] attributes this to being constantly accompanied by either his mother or his wife. On being asked why he thought he would have problems now if he returned to Sri Lanka, he said his mother and his wife protected him by going everywhere with him. He said his mother attended his university classes with him. His mother is now 78 years old and unwell so is unable to protect him. He said his wife, son and brother will remain in Australia if he leaves and will not be able to protect him. He stated in his statutory declaration that having his wife constantly by his side in Sri Lanka helped to deter the constant abuse and harassment he suffered in Sri Lanka.

    75.The Tribunal does not accept he was constantly accompanied, including at work and to lectures at the University by his wife or his mother. His denial that there were any exceptions to being constantly accompanied was unrealistic and the lack of acknowledgment of any exceptions makes it difficult to accept this was the case.

16. Having done so, the Tribunal proceeded at [76]-[101] to identify a number of instances which it considered militated against a conclusion that the applicant was at risk of being identified as intersex and so, undermining a well-founded fear of persecution or substantial grounds for believing there was a real risk of exposure to significant harm. The matters so considered by the Tribunal included: the applicant and his wife confirmed he appeared as male in public both in Australia and Sri Lanka [77]; he dressed as a male as confirmed by his driver’s licence and the use of the appellation “Mr” in documentation, including his Sri Lankan national identity card [79]-[80]; his wife confirmed he generally presented in public as a man in the manner in which he walked and talked [81]; intersex status had not been raised during his criminal trial, during sentencing, whilst imprisoned or when undertaking a sexual offending program [82]-[84]; there was no evidence of bullying on account of intersex status [85]-[86]; although there was very little evidence to support it, the Tribunal assumed the applicant’s intersex status in his favour but found that if returned to Sri Lanka he would continue to maintain a male appearance [91]-[92]; and, the applicant had successfully lived, studied, worked and operated his own business in Sri Lanka [93].

17. In my view, upon proper consideration of the Tribunal’s reasoning and with an eye that is not keenly attuned to error, there was ample reasoning for rejection of the discrete claim that the applicant was always accompanied by his wife and/or mother.  The use of the expression in the Reasons at [75] that the denial of always being so accompanied was ‘unrealistic’ may readily be understood as the expression of a conclusion based upon findings that were neither speculative nor matters of conjecture or evidenced by basic inconsistencies: cf Republic of Nauru v WET040 (No 2) (2018) 362 ALR 235, [29]-[35]. As the Court observed at [35] in relation to the process of reasoning adopted in that proceeding, “when all these matters were taken together, the respondents version of events so ill-accorded with the probabilities of ordinary human experience as to be implausible.” Later, the Court observed, with respect to the scope of the obligation to give reasons, that the rejection of a claim or evidence as being “implausible” was properly to be understood as the rejection and disbelief of a claim or evidence and is merely reflecting the administrative decision-makers view as to the inherent unlikelihood of the occurrence of the events being relied upon: [37]-[38]. As the Court observed at [39], although a challenge to the sufficiency of reasons will depend upon the unique facts and circumstances of the particular case, it is entirely orthodox for an administrative decision-maker to make a finding whether or not a claim or evidence has been believed and for that purpose no detailed reasons for such a finding need be given.

18. Upon the whole of the reasoning adopted by the Tribunal, it was neither legally unreasonable nor irrational for the Tribunal not to accept the applicant’s evidence that he was constantly accompanied, including at work and whilst at university, by either his wife or his mother.

19. Ground 1 is rejected.

    Ground 2: overlooked evidence

20. Ground 2 reads:

    The Tribunal’s Reasons at [75] failed to grapple with critical corroborative evidence from the applicant’s wife, being that she always accompanied the applicant in public in Sri Lanka.

21. The applicant, in submitting that the intersex claim had been corroborated by the applicant’s wife, again challenged the sufficiency of the Reasons at [75] which is set out above.  In short, the applicant complained that the Tribunal’s reasoning demonstrated a failure to engage in an active intellectual way with the wife’s evidence as given at the hearing.

22. On behalf of the Minister it was submitted that the court should not infer the Tribunal had overlooked or failed to consider the evidence adduced from the applicant’s wife.

    Resolution

23. Again, the applicable principles were not in issue.  The circumstance that a decision-maker has expressly referred to the fact of evidence having been adduced from a particular witness, in and of itself, undermines a challenge that such evidence was overlooked: BNB17 v Minister for Immigration and Border Protection [2020] FCA 304, [107] (Anderson J). Furthermore, the principles stated in Republic of Nauru v WET040 (No 2) (2018) 362 ALR 235, [37]-[39] are equally applicable to this ground of review. It is well-settled that a decision-maker need not refer to every piece of evidence in providing its reasons for its decision: ETA067 v Republic of Nauru (2018) 92 ALJR 1003, [13]-[14]. As the Court observed at [14] “there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that the tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claims or that would be dispositive of the review.”  The statements of principle expressed in ETA067 v Republic of Nauru (2018) 92 ALJR 1003, [13]-[14] have already been cited and endorsed on a great many occasions. Nor need a decision-maker engage in a line by line repudiation of all of the evidence that is adduced before it: Minister for Home Affairs v Buadromo (2018) 267 FCR 320, [48] (Besanko, Barker and Bromwich JJ).

24. While attention was drawn to particular parts of the transcript of the evidence given by the applicant’s wife, having regard to its brevity, is a convenient to distil the evidence that she gave.  The applicant’s wife, born in 1971, is mother to the party’s child born in February 2000.  After meeting through friends, the parties were married in May 1995.  Later, the parties travelled to Australia in 2008 (the wife having studied in Australia since 2001).  When the parties returned to Sri Lanka for about 4½ - 5 years, for most of the time they lived with the applicant’s parents.  The applicant and his wife both studied in Colombo at the same time.  Asked about the applicant’s travel arrangements to and from University, she replied that he travelled by vehicle.  Asked whether he travelled alone or with other people she stated:

    Before we marry like most of the time his friend is with him, mother is always there

    And what about at the University or taking him to the University, what would happen then?

    That time like when he was starting that time he would be with friends, all the time we were not together.

25. The applicant’s wife stated that from the time she met him she knew he was intersex and that her knowledge was based upon her observations and because they were “very close friends… so he just told me as well.”  The witness stated that, on occasion the applicant dressed at home in female clothing and that, when in public, “he’s trying his best to be like a male” and that most of the time he dressed like a man.  The applicant’s wife explained that the applicant tried his best to walk and talk like a man and that “he’s trying his best to be like a man and I’m always with him so he didn’t get any issues from anyone with him.”  The witness reiterated that the applicant did not have any problems when in public because “I am always with him.”  She stated she had not met the applicant’s uncles but knew that his parents lived in Negombo in accommodation which they no longer owned, adding that the applicant spoke with his parents.  Asked to explain why the applicant’s intersex status had not been raised during his criminal trial or in relation to the application for revocation of the cancellation decision, she stated that “Actually, we keep his intersex issue we never went on public with that, only family knows so we kept it is as a private thing.”  The witness stated that as an Australian citizen she couldn’t go back to Sri Lanka and had nothing to go back to.  Otherwise, the applicant’s wife said that his mother was now old and she feared the applicant would suffer at the hands of police.

26. As concerns Ground 2, I cannot ignore that the Tribunal member was the person who questioned the applicant’s witness and that the transcript indicates her evidence was given over a period of about 15 minutes.  In my opinion, it is inherently improbable that the evidence of this witness had been overlooked.  Such a conclusion is undermined by the circumstance that the presence of the applicant’s wife is referred to in the Reasons at [1], [6], [34], [38]-[39], [42], [70], [74]-[76], [99], [115], [118], [120], [124]-[126], [142].  I am not prepared to infer that the evidence was overlooked or that the Tribunal did not engage with it.  Having examined the whole of the transcript I accept the submission that the evidence lacked cogency and did not inform in a material way the question whether the applicant was constantly accompanied by his wife at all times when in public, at work or at University.  The transcript of her evidence which I have re-examined for this purpose does not support that broad claim.

1. Ground 2 is rejected.  The rejection of that ground makes it unnecessary to further examine the issue of materiality.

   Conclusion

2. For the reasons above, the application should be dismissed.

I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.

Associate:

Dated:       6 May 2022