FEDERAL COURT OF AUSTRALIA

SZVZN v Minister for Immigration and Border Protection [2017] FCA 954

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court of Australia made on 4 November 2016 be set aside.

3.    The decision of the Administrative Appeals Tribunal made on 12 November 2015 be quashed.

4.    The appellant’s application for review be remitted to the Administrative Appeals Tribunal, differently constituted, for redetermination.

5.    The first respondent pay the appellant’s costs of and incidental to the appeal as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 4 November 2016, dismissing the appellant’s application for review of a decision of the second respondent, the Administrative Appeals Tribunal. On 12 November 2015, the Tribunal had affirmed a decision made on 16 August 2013 by a delegate of the first respondent, the Minister for Immigration and Border Protection, refusing to grant the appellant a Protection (Class XA) visa.

2    Two grounds of appeal are advanced, both substantially to the effect that the primary judge erred in concluding that the Tribunal did not commit jurisdictional error by failing to give proper consideration to whether the appellant fell within certain eligibility guidelines published by the United Nations High Commissioner for Refugees (UNHCR) in 2012.

3    For the reasons that follow, the appeal should be allowed.

History of the proceedings

4    The appellant, who is a Sri Lankan citizen of Tamil ethnicity, arrived in Australia by boat on 25 July 2012.

5    On 12 December 2012, the appellant applied for a protection visa, claiming a fear of harm or persecution at the hands of the Sri Lankan government, the army or associated paramilitary groups by reason of his Tamil ethnicity and perceived association with the Liberation Tigers of Tamil Eelam (LTTE). In particular, the appellant advanced a claim that he had been targeted and harassed by the Sri Lankan army because he had witnessed the army taking his uncle away by force.

6    On 16 August 2013, a delegate of the Minister refused the appellant’s application for a protection visa on the basis that she was not satisfied that he was a person to whom Australia had protection obligations under s 36 of the Migration Act 1958 (Cth) and cl 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth).

7    The appellant sought review of the delegate’s decision, which was subsequently affirmed on 17 December 2014 by the then Migration Review Tribunal. Upholding an application for judicial review, the Federal Circuit Court quashed the Tribunal’s decision by consent and remitted the matter to the Tribunal for redetermination.

8    The second review of the delegate’s decision was conducted by the Administrative Appeals Tribunal, differently constituted. On 12 November 2015, the Tribunal affirmed the decision of the delegate to refuse to grant the appellant a protection visa. Following an application for judicial review and hearing, the Federal Circuit Court upheld the Tribunal’s decision on 4 November 2016.

9    By notice of appeal filed 22 November 2016, the appellant appealed from the orders of the primary judge to this Court. The appellate jurisdiction of this Court in respect of appeals from the Federal Circuit Court of Australia is ordinarily exercised by a single judge of this Court in accordance with s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth), subject to referral to a Full Court.

Before the Tribunal

10    The appellant’s case before the Tribunal on remittal encompassed the factual claims that had been put to the delegate by way of a statement accompanying the appellant’s application for a protection visa. That statement included the following claims:

(1)    In December 2011, the appellant and his uncle were stopped by the Sri Lankan army. The army took his uncle by force to a camp nearby and instructed the applicant not to tell anyone. Despite being arrested, the appellant’s uncle was not taken before the courts.

(2)    The police later advised the appellant’s aunt that the Sri Lankan army had admitted to having taken her husband as they believed that he had links with the LTTE.

(3)    The Sri Lankan army began to harass the appellant more frequently because they knew he had witnessed the event and told his aunt, despite being ordered not to.

(4)    Soldiers from the Sri Lankan army came to the appellant’s house in April 2012 looking for him, and spoke to the appellant’s mother in a threatening manner.

(5)    The appellant felt too scared to return home, does not trust the Sri Lankan army, and fears for his safety in Sri Lanka.

(6)    The appellant’s family has previously suffered the loss of the appellant’s brother in 2006, who is believed to have been kidnapped by the Sri Lankan army or the “Karuna” group. At that time, the appellant’s father had been an active member of the Tamil National Alliance and had taken a stance against the government.

11    Also advanced before the Tribunal were the written submissions of the appellant’s solicitor dated 24 November 2014 and 11 December 2014, which included three sets of factual claims that had not been disclosed to the Minister’s delegate:

    First, it was asserted that the appellant had been forcibly taken as a child by the LTTE in March 2004 and given preliminary physical training, education classes and the nom de guerre “Kalaipuyal”. It was said that the appellant had been released after some months at the training camp because he was suffering from chickenpox. It was explained that the appellant had failed to disclose these details to Australian authorities and the delegate because he had been advised by other applicants in detention centres that such disclosure would affect whether he obtained clearance from the Australian Security Intelligence Organisation.

    Secondly, it was said that the applicant’s brother had been a supporter of the LTTE and assisted with LTTE political work. The submission noted the belief that the brother’s disappearance in 2006 was a result of both his involvement with the LTTE and his father’s involvement with the Tamil National Alliance.

    Thirdly, it was said that the applicant’s father had worked for the LTTE in its food and agricultural supplies division for a period in the 1990s.

12    The written submissions to the Tribunal advanced on the appellant’s behalf also made reference to the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, published on 21 December 2012 (UNHCR Guidelines). In particular, the submissions referred to aspects of those guidelines dealing with the claims of persons suspected of having certain links with the LTTE, such as former LTTE combatants or “cadres”. The guidelines were quoted in the 24 November 2014 submissions as follows (emphasis in the original):

“UNHCR considers that individuals with these profiles – though this list is non-exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case.

(i)    Persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE)

(ii)    Certain opposition....”

The 2012 report continues to say that:

“The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

1)    ….

2)    Former LTTE combatants or “cadres”

3)    …

5)    LTTE fundraisers and propaganda activists and those with, or perceived as having had links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

6)    Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.”

The 2012 report concludes:

“Persons of the above profile are, depending on the individual circumstances of the case, likely to be in need of international refugee protection on account of their (perceived) political opinion, usually linked to their ethnicity”.

13    The Tribunal hearing was conducted on 20 August 2015. Further submissions and additional country information were provided by the appellant’s representative on 27 August 2015. Those materials do not bear on the issues in this appeal.

14    As reflected in its decision of 12 November 2015, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the relevant laws. Critically, the Tribunal did not accept the appellant’s claim about his uncle or that his mother had received any threats of harm. Similarly, the Tribunal did not accept that the appellant had left Sri Lanka because he feared harm as a consequence of his uncle being taken by the army. The Tribunal did, however, accept that the appellant had spent time in the LTTE training camp, but it did not accept that the Sri Lankan security forces were unaware of his history, or that if they learned of it, it would threaten his life. In giving reasons for this conclusion, the Tribunal did not refer explicitly to the UNHCR Guidelines.

15    On the basis of its findings, the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations pursuant to either s 36(2)(a) of the Migration Act or the complementary protection criterion under s 36(2)(aa). Accordingly, the Tribunal affirmed the delegate’s decision.

Before the primary judge

16    The single ground of attack relied on by the appellant before the primary judge, which is substantially repeated on appeal, was that the Tribunal failed to complete the exercise of its jurisdiction by:

(1)    failing to consider a submission by the appellant’s solicitor/migration agent to the effect that the appellant fell within the UNHCR Guidelines; and/or

(2)    failing to consider an issue which clearly arose on the information before it, that being whether the appellant did fall or might have been perceived to fall within the UNHCR Guidelines.

17    It was submitted on behalf of the appellant that while the Tribunal might have read the UNHCR Guidelines, its decision did not evidence that it actually thought about them in a meaningful way. This was said to constitute a constructive failure by the Tribunal to exercise its jurisdiction to review the delegate’s decision.

18    The primary judge appeared to accept that the issue of the UNHCR Guidelines had arisen in the second review of the delegate’s decision, identifying the following references to the guidelines in the material available to the Tribunal:

(1)    references in the delegate’s decision record at pages 9, 10 and 11, and footnotes 2, 11, 12 and 18;

(2)    the quotations from the guidelines advanced in the appellant’s written submissions dated 24 November 2014 (as set out above at [12]); and

(3)    further quotations from the guidelines generally in the appellant’s written submissions dated 11 December 2014 referring to the extensive use of torture by police, security or armed forces in Sri Lanka, in the context of providing further country information.

19    The primary judge proceeded to examine the Tribunal’s path of reasoning as follows:

38.    … at paragraph 19 of the Decision Record of the Second Tribunal there is a specific reference to Mr Selliah’s Written Submissions of 24 November 2014. Paragraphs 20 to 26 record certain factual allegations made in those written submissions.

39.    Paragraphs 27 and 28 then say:

27.    The submission set out country information about torture and persecution of LTTE suspects, returning failed asylum seekers, and illegal departure, on disappearance and extortion, on prison conditions, and relocation.

28.    The submission went on to set out an assessment of the protection obligations under the refugees convention, a response to the delegate’s reasoning and an assessment of protection obligations under complementary protection.

40.    Then at paragraph 31 of its Decision Record the Second Tribunal refers to Mr Selliah’s written submissions of 11 December 2014 and to a number of the points made in that submission and attached evidence.

41.    Then paragraph 32 of the Decision Record refers to recent country information, including about torture, rape and ill treatment of Sri Lankan returnees, Sri Lankans associated with LTTE and Tamils provided by Mr Selliah in his written submission of 11 December 2014 after the First Tribunal hearing. In paragraph 33 it refers to further country information provided by Mr Selliah in his written submission of 27 August 2015 after the Second Tribunal hearing.

42.    At paragraph 79 of the Decision Record of the Second Tribunal it is specifically stated as follows:-

79.    The Tribunal has taken into account the country information in submissions provided in support of the applicant’s case but does not accept that the information supports findings to the contrary.

43.    At paragraph 82 the Second Tribunal stated that it preferred the DFAT reports in preference to other country information in relation to the treatment of people who have departed illegally.

20    Having regard to the Tribunal’s reasoning as summarised in the above paragraphs, the primary judge was satisfied that there was no evidence that the Tribunal had failed to read, consider and take into account the UNHCR Guidelines, notwithstanding that they were not explicitly referred to. The primary judge placed weight on the Tribunal’s statement at [79] that it had “taken into account the country information and submissions provided in support of the applicant’s case”. His Honour did not consider that there was any reason to doubt the Tribunal’s statement in that regard. It was also observed that the guidelines do not usually compel or dictate a particular result or conclusion or bind a decision-maker to reach a particular result: Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 289, 290 and 298-299.

21    The primary judge commented that the Tribunal was not required to specifically name and identify the UNHCR Guidelines by title when it referred generally at [79] to the country information provided by appellant, citing VWFW v Minister for Immigration and Multicultural Affairs [2006] FCAFC 29 at [71].

22    The primary judge considered that the Tribunal appeared to have taken into account the country information referred to and relied upon by the appellant, including the UNHCR Guidelines, in the exercise of weighing and balancing the country information before it. His Honour commented that the decision of the Tribunal appeared to be “a reasoned, coherent and rational analysis and consideration of the [appellant’s] claims … and the material and evidence placed before it …”. In those circumstances, his Honour observed that to find that the Tribunal had failed to consider an issue or matter was not an inference readily to be drawn: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at 604 [47].

Grounds of appeal

23    The appellant’s two grounds of appeal were stated as follows (omitting particulars at this point):

1.    The Court below erred in finding that the Second Respondent did not commit jurisdictional error by failing to consider a submission by the Applicant's solicitor/migration agent to the effect that the Applicant fell within the UNHCR Eligibility Guidelines Sri Lanka 2012.

2.    The Court below erred in finding that the Second Respondent did not commit jurisdictional error by failing to consider an issue which clearly arose on the information before it, that being whether the Applicant did fall or may have been perceived to fall within the UNHCR Eligibility Guidelines Sri Lanka 2012.

24    The particulars for both grounds of appeal were stated as follows:

Particulars

The Court below erred in finding that the Second Respondent considered the UNHCR Eligibility Guidelines Sri Lanka 2012.

The Court below erred in finding that the Second Respondent brought an active intellectual process towards their consideration of the UNHCR Eligibility Guidelines Sri Lanka 2012.

25    It should be observed immediately that, as was properly conceded by counsel for the appellant at the hearing of the appeal, there is very little difference in substance between the appellant’s two grounds of appeal. At most, the distinction appears to reflect differing conceptual pathways as to how the obligation to consider the “submission” or “issue” of the UNHCR Guidelines is said to have arisen. Conceptually, I am attracted for present purposes to the appellant’s first ground of appeal, which refers to the matter falling for consideration by the Tribunal as a “submission” put by the appellant. While the relevant matter may also bear the character of an “issue” arising in the review before the Tribunal in a technical sense, there is an unnecessary circularity in describing it as such when the issue only arose by way of material put in submission by the appellant. In any event, having regard to the live issues in the appeal, I doubt that anything turns on the distinction.

Appellant’s submissions

26    Counsel for the appellant submitted that the Tribunal must consider any “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason, citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at 394 [24]; and SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at 387-389 [75]-[80]. In this context, “consideration” entails directing an “active intellectual process” to the particular matter: Tickner v Chapman (1995) 57 FCR 451 at 462.C.

27    It was further submitted on behalf of the appellant that whether the Tribunal has “considered” claims, evidence and submissions is a matter of substance, not form: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595 per Kirby J; and SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; 125 ALD 38 at 46 [43]. As Madgwick J pointed out as a member of the majority in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; 147 FCR 51 at 92-3 [212], quoting Sackville J in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at 164 [58], a “decision-maker may be aware of information without paying any attention to it or giving it any consideration”.

28    Counsel for the appellant placed particular reliance on several passages drawn from SZSSC, turning first to Griffiths J’s comments at 388 [76] on the Full Court’s decision in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 136 ALD 547:

… In MZYTS, in describing the tribunal’s statutory obligation or task in reviewing a decision refusing an application for a protection visa where the applicant argued that there were growing risks of politically-motivated violence for people like him in Zimbabwe (for which he had provided in support updated country information which was not considered by the tribunal), the Full Court stated ( at [38] ):

[38]    That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there … [Emphasis added.]

29    Reliance was also placed on Griffiths J’s observations in SZSSC at 389 [81(a)]:

… In my opinion, the duty to review obliges the tribunal to consider and deal with submissions of substance which are clearly articulated. As noted above, in assessing whether a submission is one of substance it may be relevant to take into account whether it relies upon an established fact, but that is not the only way in which that requirement may be met. Substantiality might also be established by the fact that, for example, a submission has been made in direct response to an important issue which the tribunal has raised which bears upon the state of the satisfaction which it is required to meet under s 65 of the Act. In my view, that is the case here as the written submissions dated 20 February 2013 were provided in direct response to the tribunal’s stated concerns regarding the credibility of the extortion claims and the appellant’s ignorance of the CID officer’s identity …

30    Counsel for the appellant submitted that the UNHCR Guidelines were centrally relevant to the appellant’s case because they specifically stated that former LTTE combatants or cadres were likely to be at risk depending on individual circumstances. Given the centrality of that aspect of those guidelines, it was said to be expected that the submission that the appellant fell within their terms would have been addressed. I take counsel’s submission to mean that those guidelines would be expected to have been addressed by the Tribunal in terms and with some specificity in order to consider properly, as a matter of due process in the exercise of jurisdiction, the claims being made.

31    Notwithstanding that the Tribunal summarised parts of the appellant’s submissions of 24 November 2014 generally, it was submitted that the Tribunal failed to direct an active intellectual process to the part of those submissions dealing with the UNHCR Guidelines. The fact that the Tribunal’s reasons omit any reference to the UNHCR Guidelines was said to be a strong indication that the submission was not considered: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at 75 [34].

32    Accordingly, it was submitted that the primary judge erred in concluding at [47] that the Tribunal engaged in an active intellectual process directed at the appellant’s submissions on the guidelines, as required.

Minister’s submissions

33    The solicitor appearing for the Minister did not take issue with the principles advanced by the appellant. Rather, the Minister’s case was that the “submission” or “issue” as to whether the appellant fell within the UNHCR Guidelines was plainly considered by the Tribunal.

34    The solicitor appearing for the Minister reiterated and defended the primary judge’s findings. It was submitted that the primary judge was correct in finding that the Tribunal was not required to specifically name the guidelines and that the guidelines do not compel a particular result or conclusion.

35    The solicitor appearing for the Minister also placed particular emphasis on the words of qualification present in the relevant aspect of the UNHCR Guidelines themselves. It was stressed that those guidelines set out certain profiles of persons who may be or are likely to be in need of international refugee protection, “depending on the individual circumstances of their case”. Critically, it was submitted that the Tribunal’s approach, which was entirely consistent with those guidelines, was to address the appellant’s individual circumstances having regard to its findings of fact.

Consideration

36    It was not contentious and I accept that the submission that the appellant fell within the UNHCR Guidelines was put before the Tribunal. While the submission was not made in such explicit terms, I accept that it was in effect advanced and squarely arose by way of the quotations relied on in the appellant’s written submissions to the Tribunal dated 24 November 2014.

37    Further, as appeared to be common ground, the submission was one of “substance”, going to the important question of whether the appellant was a person in respect of whom Australia had protection obligations. Accordingly, it was a submission that the Tribunal was obliged to consider. The only live issue in this appeal is whether the Tribunal in fact did so.

38    It is necessary to address the parties’ submissions having regard to the key aspects of the Tribunal’s reasons, reproduced below:

69.    The Tribunal does not accept the applicant’s responses explain why he has not suffered any harm from the army or any other Sri Lankan government authority or anyone else since his release from the LTTE but will if he returns. The civil war ended in May 2009. The Tribunal does not accept that the Sri Lankan army or any other government authority has had or will have any interest in the applicant because of his time spent with the LTTE.

70.    It also does not accept that the security forces are unaware of his history or that if they learned of it, it would threaten his life. He gave detailed evidence that he was taken during a period of peace when the army and LTTE were both in control in his village – the army during the day and the LTTE at night. If the army was in control during the day at least, the Tribunal finds that his disappearance for eight months and return was well-known in his school and village and that the army would have been aware of it. It also does not accept that if the security forces learned of his history with the LTTE it would threaten his life or that his return would trigger an investigation such that his history would be revealed and that would threaten his life.

71.    For the above reasons, the Tribunal does not accept the applicant’s claim that there is a real risk that he will suffer serious harm or a real chance that he will suffer significant harm because of his time with the LTTE.

39    The Tribunal said further:

79.    The Tribunal has taken into account the country information and submissions provided in support of the applicant’s case but does not accept that the information supports findings to the contrary…

40    In effect, two very different readings of the Tribunal’s decision are advanced by the parties.

(1)    The first is that the Tribunal’s reasoning is responsive to the guidelines, reflecting a process of determination of whether the appellant may be in need of international protection by reason of his profile as an LTTE “cadre” with reference to “the individual circumstances of [his] case”. This is the Minister’s position.

(2)    The second is that the Tribunal did not consider the submission that the appellant fell within the guidelines, and its reasoning is responsive only to the appellant’s factual claims and the Tribunal’s factual findings about his links to the LTTE. This is the appellant’s position.

41    As a starting point, I acknowledge that the Tribunal addressed the individual circumstances of the appellant’s case, making findings that pointed away from the need for protection despite his time spent in an LTTE training camp. Relevantly, the Tribunal did not accept the appellant’s explanations as to why he had not suffered any harm from the army or any other Sri Lankan government authority by reason of his past links with the LTTE. The Tribunal also did not accept that the Sri Lankan security forces were unaware of his history, or that if they learned of it, it would threaten his life. This was based on a finding at [70] that the appellant’s disappearance would have been “well-known in his school and village and that the army would have been aware of it”.

42    In my view, however, the Tribunal’s regard to the individual circumstances of the appellant’s case does not compel the conclusion that the UNHCR Guidelines were considered, or at least considered in a way that addressed the issue raised on behalf of the appellant. Indeed, it is open to conclude that the Tribunal’s reasoning is responsive only to the appellant’s factual claims about his history with the LTTE, without accepting or perhaps even considering the distinct submission that he might fall within the UNHCR Guidelines. In this regard, the Tribunal’s reasons are ambiguous.

43    I accept that there is no general requirement for the Tribunal to name specifically and identify the UNHCR Guidelines by title: VWFW at [71]. However, having regard to the centrality of the appellant’s submission, the absence of specific reference to those guidelines and the absence of evidence supporting a clear inference that they were implicitly addressed tells against the suggestion that the appellant’s submission was considered. Were there nothing more to go on, the appellant might have failed by the application of the onus on him to show that the UNHCR Guidelines were not considered in a way that addressed a claim critical to his case. However, the analysis does not stop there.

44    Critically, one particular aspect of the Tribunal’s findings is inconsistent with the suggestion that the guidelines submission was considered and responded to, supporting an inference to the contrary. At [70], the Tribunal expressed the finding that it did not accept that “if the security forces learned of [the appellant’s] history with the LTTE it would threaten his life or that his return would trigger an investigation such that his history would be revealed and that would threaten his life”. No further reasons in support of this view are apparent, although it is noted that the Tribunal stated at [79] that it had “taken into account the country information and submissions provided in support of the applicant’s case but does not accept that the information supports findings to the contrary”.

45    The Tribunal’s finding at [70] about the lack of risk to the appellant if security forces had been unaware but were to learn of his history is in stark contrast to the relevant aspects of the UNHCR Guidelines, which clearly support a contrary conclusion being reached, at least in some cases. Indeed, it is difficult to discern any evaluative exercise that the Tribunal has taken in relation to those guidelines to form its view that the appellant would not face any risk despite the suggestion, by reference to those guidelines, that he may or may likely be in need of protection by reason of his profile. This inconsistency, unresolved by way of any apparent path of reasoning, cannot be explained by reference to the Tribunal’s other findings concerning the circumstances of the appellant’s case, because those findings predicate the absence of risk to the appellant on the basis that the authorities were already aware of the appellant’s situation and had done nothing. As such, they are unable to form the basis for any conclusion that the appellant would not suffer harm if the authorities were unaware and learnt of his history, as the Tribunal accepted was possible. In this regard, the Tribunal’s reasons are contrary to the conclusion that there was any consideration of the UNHCR Guidelines submission. They support an inference that the necessary consideration did not take place.

46    It is instructive to consider a relevantly similar situation that arose in the Full Court decision in MZYTS. The Full Court noted at [25] that the primary judge had found that there was a stark contrast between the reports relied on by the visa applicant and the findings of the Tribunal, on an issue that was central to its decision-making process. The Full Court upheld the federal magistrate’s finding of error in the Tribunal’s decision. At [62], the Full Court concluded, in a passage worth setting out in full:

As we have set out above, the visa applicant’s claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant’s claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review.

47    I reach the same conclusion in this case, for substantially similar reasons. In light of the analysis engaged in above, the Tribunal’s reasons disclose no consciousness, nor any consideration of the information in the guidelines, and the impact that information might have on the appellant’s claims for protection. The appellant has gone far enough to demonstrate that, on the balance of probabilities, the Tribunal did not consider a submission central to his case, namely, whether he might fall within the UNCHR Guidelines by reason of his past involvement with the LTTE. It follows that the Tribunal failed to exercise its jurisdiction as required.

Conclusion

48    The appeal should be allowed with costs and the necessary consequential orders made for redetermination by the Tribunal of the appellant’s application for review.

Associate:

Dated:    18 August 2017