FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v MZYLE (No 2) [2011] FCA 1467

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1    Before the Court is an appeal by the appellant, Minister for Immigration and Citizenship, from a declaration made by the Federal Magistrates Court on 15 August 2011. The Federal Magistrates Court declared that the second respondent, a merits reviewer, made errors of law in recommending to the appellant that the first respondent is not a refugee within the definition in Art 1A of the Convention relating to the Status of Refugees (“the Convention”).

2    The first respondent is a national of Sri Lanka. He arrived at Christmas Island on 7 February 2010. An initial assessment of his refugee status made by an officer of the Department of Immigration and Citizenship (“the Department”) was unfavourable to him. He therefore applied for a merits review of the assessment. On 2 December 2010, the second respondent produced written reasons for the recommendation to the appellant that the first respondent should not be recognised as a refugee.

3    Section 91X of the Migration Act 1958 (Cth) prohibits the publication of a person’s name in certain proceedings involving refugee claims. The section does not apply to the present challenge to the refugee status assessment which is merely a recommendation to the appellant for the purpose of his considering whether to permit the first respondent to apply for a protection visa. The parties agree to the anonymous reference to the first respondent. Had the parties not agreed, the first respondent would have been referred to by name as is the ordinary practice in proceedings in the Court.

4    Whilst on the subject of the description of the parties, it should be observed that the second respondent is described in the title as an “Independent” Merits Reviewer. No basis for the reference to “independent” has been provided. It seems that the second respondent is contracted by the Department to make the assessment. That circumstance, without more, makes it inappropriate in these reasons to describe the second respondent as independent. For the second respondent to qualify for that description, the Court would need to be satisfied that the review function was separated from the Department. Otherwise such a description is apt to mislead the reader of these reasons by suggesting a term of engagement which the second respondent does not seem to have.

5    The first respondent is a Tamil. He follows the Hindu religion. He was born in 1980 and is single. He left Sri Lanka with his family in 1990 and lived in India until 2004. Then he returned to Sri Lanka until early 2009. After a short return to India he again came back to Sri Lanka late in 2009.

6    The first respondent claimed that when he worked in the north of Sri Lanka he was forced by the Liberation Tigers of Tamil Eelam (LTTE) to undertake training and work for the LTTE. As a result he was detained and questioned by government authorities and feared persecution as a suspected member and supporter of the LTTE. The second respondent (the reviewer) did not find the first respondent a reliable witness and rejected the central claim that the first respondent was a suspected LTTE member or supporter. There is no challenge to this aspect of the review.

7    It is common ground that, following Plaintiff M61/201E v The Commonwealth (2010) 123 ALD 244; [2010] HCA 41; [2010] 85 ALJR 133, the assessment process, including the recommendation made by the merits reviewer, must be procedurally fair and must address the relevant legal questions. A failure to do so will constitute a jurisdictional error. Two such errors were identified by the Federal Magistrate in this case and are the subject of the appeal. The first is that the reviewer failed to determine an integer of the first respondent’s claims, namely whether he was at risk on return to Sri Lanka on the basis of his unlawful departure (the unlawful departure issue). The second concerns the way the reviewer dealt with the claimed risk of persecution, namely that he approached the matter on the basis that a choice had to be made between various items of country information rather than assessing the weight to be attached to the country information in order to assess whether the fear of the first respondent was well-founded (the risk of persecution issue).

the unlawful DEPARTURE issue

The written submissions

8    To understand this issue it is first necessary to consider parts of the written submissions made by the first respondent’s adviser to the reviewer.

9    On 6 September 2010, the adviser sent a 24 page detailed submission which dealt with all aspects of the first respondent’s claims and included the following passages relevant to the present question:

1.    Outline of submissions

In summary, our submissions on behalf of [the first respondent] are as follows:

…

(b)    He fears that, if he is returned to Sri Lanka, he will suffer persecution and/or substantial discrimination amounting to a gross violation of human rights in the form of abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the Sri Lankan authorities, or pro-government paramilitary groups such as the TMVP, on account of, considered separately or cumulatively:

(i)    his imputed political opinion in support of the LTTE and their aims and against the activities of the Sri Lankan authorities and pro-government militias such as the EPDP, on account of:

    •    his Tamil ethnicity;

•    his suspected involvement with the LTTE arising from the work he undertook in Kilinochchi in 2006, his evasion of the authorities after they questioned and detained him and the information he understands his former colleague has now provided to the authorities about the work the applicant was required to do for the LTTE;

•    his illegal departure from Sri Lanka and asylum claim in Australia.

(ii)    his Tamil ethnicity;

(iii)    his identity as a young person of Tamil ethnicity from the North of Sri Lanka;

(iv)    his membership of a particular social groups ‘young Tamil males’ and / or ‘young Tamil males from the North of Sri Lanka’

(v)    his membership of a particular social group, being ‘persons suspected of having links with the LTTE’.

(vi)    His unlawful departure from Sri Lanka, where he fears he would face discriminatory treatment beyond the normal punishment for this crime amounting to persecution on account of his profile outlined in (i) – (v) above.

…

4.    The applicant’s fear of being targeting [sic] heightened by his illegal departure, asylum claim and possible forced return to Sri Lanka.

The applicant fears he faces an increased risk of detention, interrogation and harm from the security forces upon his return to Sri Lanka on account of his method of his departure from Sri Lanka by boat and his claim of asylum in Australia. We submit that these fears are well-founded and note the recent findings of the Refugee Review Tribunal in a recent decision where the member stated:

The information available to me suggests that the sort of people who get arrested at the airport are people like the man who was accused of involvement in people smuggling and people who have left Sri Lanka illegally, using false documents, and about whose identity there is therefore some question. …

We note the following recent report “Not all Sri Lankan refugees ‘deserving’” which appeared in The Age on January 22, 2010, which, in our submission, further confirms the applicant’s fears:

‘Sri Lankan’s Foreign Minister Rohitha Bogollagama says his Government wants access to asylum seekers who leave his country illegally for countries such as Australia because they may have been involved in serious crimes including terrorism.

…

“We want access to asylum seekers when they have been detained and apprehended on other’s soil, that’s how we look at it,” Mr Bogollagama told The Age. “Those who have violated the laws of Sri Lanka and tried to migrate through illegal channels, that undermines our goodwill and all our efforts and our security.”

That the Sri Lankan authorities perceive asylum seekers as LTTE members and sympathisers has been confirmed by their comments this month to the Canadian authorities, in relation to a boat of asylum seekers that has recently arrived there, that it was a smuggling operation by the LTTE.

The perceived or actual post-war activity of the LTTE, combined with governmental paranoia, further places any returnees who were previously suspected by authorities of LTTE involvement at a considerable risk of harm. Such a perception is highly probable, given that Bernard Goonetilleke, the former head of Sri Lanka’s now defunct Peace Secretariat, reported on 11 August 2010 that pro-LTTE elements were continuing to collect funds from the Tamil Diaspora even after the war.

We submit that the applicant will be at risk of being suspected and targeted upon arriving in Sri Lanka on an Australian travel document and on account of his ethnicity, strong family association with the LTTE, and documented support for the LTTE that has previously resulted in his being directly targeted. The findings of the UK Home Office in their Report of Information Gathering Visit to Colombo in August 2009 note that there was an increased risk of coming to the attention of the CID and the TID and of facing difficulties, including possible detention, in circumstances including where the person illegally departed Sri Lanka, lacked ID and other documentation and / or had a connection with the LTTE. We note that Sri Lankan MP, Mr Mano Ganeson reported that he had heard of four people that had gone missing from the airport, after arriving from Dubai, Kuwait, Canada and France.

We submit that in light of the country information outlining the Sri Lankan authorities known use of torture and indefinite detention and the fact that abductions and disappearances are often preceded by contact with the authorities and the TMVP, the reported practice of questioning and detaining returnees at the airport raises serious concerns for the safety of the applicant on his return to Sri Lanka and indicates that there is a real risk he will be subjected to persecutory treatment on return to Sri Lanka for a Convention reason.

The applicant’s fears of harm on return to Sri Lanka are supported by the findings of Mr Phil Glendenning, the Director of the Edmund Rice Centre, who has recently returned from Sri Lanka. Over the past eight years, the Edmund Rice Foundation has conducted research in 22 countries into what happens to Australia’s rejected asylum seekers. Following his visit to Sri Lanka, Mr Glendenning has reported that Sri Lanka is not safe for deported asylum seekers and has expressed concern that there are ‘people who were removed from Australia at the beginning of this year who are still in prison’. He explains that:

On our most recent visit we found that all asylum seekers returned to Sri Lanka in recent months, are handed over to the CID, the Sri Lankan Police, and taken into custody. Some are detained, some have been assaulted. One man who is still in jail has lost the hearing in one ear given the severity of the assault he suffered, and another has received damage to his sight.

…

Detention can be indefinite and court processes are heard within the prison itself. No legal arguments are taken, and most often magistrates just continue to postpone the cases to a later date.

Mr Glendenning has dismissed claims by the Sri Lankan Government about the potential safety of deported asylum seekers.

In the absence of independent international observers being allowed in, to investigate the human rights situation, any guarantee from the Government of Sri Lanka about the safety of people they regard as their enemies cannot be taken seriously. The Government fears the Tamil Tigers re-emerging from the diaspora. Therefore, those who left are regarded as being sympathizers to LTTE.

Indeed, based on his investigations, Mr Glendenning found that ‘On the ground in Sri Lanka, the attitude held by the authorities is that any Tamil who fled the country in an unauthorised way must be an LTTE sympathizer’. He has expressed ‘grave concerns’ for all deported asylum seekers to Sri Lanka noting that the ‘the absence of war there, does not mean peace’.

[emphasis and underlining added]

10    On 12 September 2010, the reviewer conducted a hearing at which the first respondent gave evidence of his claims. Then, on 19 November 2010, the reviewer wrote a letter to the first respondent which enclosed some country information and invited the first respondent to comment on it. The additional country information relevant to this appeal was as follows:

Interrogation at Colombo airport

Returnees to Colombo

In August 2009 the Australian High Commission in Colombo advised the UK Foreign and Commonwealth Office (FCO) that “there were no procedures in place to identify failed asylum seekers”; and that: “The only way that the authorities were alerted to a failed asylum seeker returning was if the airlines or IOM notified them that a person was a deportee or was being escorted”. A Tamil returned to Colombo after seeking asylum in Australia would therefore be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures with the same risk criteria for being perceived as having an LTTE association. … In August 2009 an officer of the Colombo office of UNHCR replied that while UNHCR had “little involvement with this type of issue”, “they were aware that some returned failed asylum seekers were interviewed with CID. If there was any suspicion there would be a quick, and usually non-problematic, interview with CID who would ask things like why they left and how long they were away for. High profile cases, such as those suspected of having involvement with the LTTE, would be taken away for further questioning, usually by the police” …

A report of 14 October 2009 by the Australian High Commission in Colombo stated that while anecdotal evidence suggests that previous involvement or suspected involvement with the LTTE could influence how a person is treated at the airport on return to Sri Lanka there is no “hard evidence to prove this”. The report states that “the Department of Immigration and Emigration (DIE) computer has a ‘black-list’ of persons of concern but unless the exact spelling of a name, the date of birth and passport number matches that of the returnee / deportee, the person is not stopped”. The report provided the following advice with regard to what profile of person is detained and / or interrogated on arrival at Colombo airport:

R.5. Sri Lankan Immigration officers do not appear to have sufficient expertise in profiling passengers and unless the person comes up in an alert list they are not stopped at the border. Where it is known that a person is a returnee or deportee and is not accompanied, the procedure is for Sri Lankan Airlines staff to take them to DIE. In most cases this occurs but it is not unknown for a person, particularly if they have an onward ticket to be allowed to depart the airport without seeing DIE …

R.6. … As previously stated unless there was an alert on the person in the immigration system at the airport and that matched exactly the biodata information being presented to the immigration officer, the person would not be stopped from entering. Experience in managing the return of Sri Lankans who had departed Sri Lanka illegally and made an asylum claim abroad has not shown that they are treated any differently to other deportees.

This also applied to two persons who had prior criminal records, with one having an outstanding arrest warrant.

    [emphasis added]

11    On 30 November 2010, the first respondent’s adviser replied with a further comprehensive 21 page submission which included the following material relevant to this appeal:

7.    Australian High Commission in Colombo, Report of August 2009 and Australian High Commission in Colombo, Report of 14 October 2009

We note that these reports are not publicly available and have not been extracted in full in your correspondence. In order to respond adequately, it is vital that we be given access to the full document so we can fully ascertain the context in which various comments appeared.

In the absence of the full document however, we wish to make the following comments:

More recent country information, which sources people within the Sri Lankan Immigration Service on their own processes, describes airport screening, monitoring of travel documents and the use of databases. This information from the Danish Department of Immigration states that all Sri Lankans travelling on an emergency travel document will be subject to extra checks and questioning:

As regards, the authorities’ entering procedures for returnees, including returned failed asylum seekers in the Colombo Airport, Mr. W. A. Chulananda Perera, Acting Controller General, Department of Immigration and Emigration (DIE) explained that the returnee can enter the Sri Lankan border with either a national passport or an Emergency Travel Document issued by the Sri Lankan Embassy. If the returnee enters with a national passport, DIE can check the data in a database. Entry with an Emergency Travel Document does not give this possibility. However, an Emergency Travel Document is considered a proof of identity established in the country of departure. DIE registers the details of all returnee, including travel documents, flight numbers and country of return in a register that all law enforcement agencies are given access to. Mr. Perera said that if an Emergency Travel Document is issued, the Sri Lankan Embassy in the returning country informs DIE about the arrival. DIE questions the returnee about the reason for leaving the country, as well as they clarify citizenship and identity. DIE also checks if the returnee is on a list of wanted persons for court orders, forged documentation etc. If it is the case the deportee is handed over to Criminal Investigation Department (CID). Mr. Perera further explained that all returnees who returned with an Emergency Travel Document will also be questioned by the State Intelligence Service (SIS). In case a returnee is on a list of wanted persons for terrorism then the person is handed over to Terrorist Investigation Department (TID) for further investigation.

A spokesperson from the British High Commission stated that if a returnee arrived from abroad holding their original Sri Lankan passport, were not escorted and at the same time the Sri Lankan authorities had not been notified, the returnee will in most cases go through the airport control without further investigation. If the returnee is escorted, they will be handed to the DIE who will confirm the nationality of the returnee in their database. The DIE database contains details of wanted persons. If the returnee is on the alert list, he will be passed to the department who circulated the alert. This may be DIE or SIS or if it was the police or Courts, they would be passed to CID.

A diplomatic mission similarly mentioned that the Sri Lankan authorities have a list of wanted people and if the returnee is not on this list, the person will in general be allowed entry to Sri Lanka.

In our submission this more comprehensive account, which does not rely on anecdotal evidence, provides a better picture of what the applicant may face at the airport. While it is impossible to say what kind of travel document he will be travelling on, the account above describes the use of databases and checking procedures for persons on an ‘alert list’. The Australian material extracted in your correspondence suggests that people whose name is misspelt on the alert list will avoid attention – in our view, relying on misspellings in databases is not a proper approach to the question of whether the applicant faces a ‘real chance’ of harm.

Overall, the reports from the Australian High Commission pre-suppose a lack of interest from the Sri Lankan airport authorities in prosecuting former members of the LTTE and a general disinterest and lack of competence. No evidence is provided for this view, which contradicts available country information on the Sri Lankan government’s continuing action against LTTE suspects.

The UK Country of Origin Information Report, Sri Lanka 11 November 2010 also relevantly states,

33.12    The FCO October 2009 report observed:

“Sources agreed that all enforced returns (of whatever ethnicity) were referred to the Criminal Investigations Department (CID) at the airport for nationality and criminal record checks, which could take more than 24 hours. All enforced returns were wet-fingerprinted. Depending on the case, the individual could also be referred to the State Intelligence Service (SIS) and / or Terrorist Investigation Department (TID) for questioning.

“Anyone who was wanted for an offence would be arrested. Those with a criminal record or LTTE connections would face additional questioning and may be detained. In general, non-government and international sources agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of the factors below would increase the risk that an individual could encounter difficulties with the authorities, including possible detention:

•    “outstanding arrest warrant

•    criminal record

•    connection with LTTE

•    illegal departure from Sri Lanka

•    involvement with media or NGOs

•    lack of an ID card or other documentation.” [15m] (Executive     Summary, Treatment of Tamils at Colombo airport)

33.13    In particular, in reply to the question on what procedures were in place to identify failed asylum seekers at the airport and those who are wanted by the authorities:

“The DIE spokesman said that DIE recorded the details of all returnees in a register (logbook). Returnees were then referred to the Criminal Investigations Dept (CID), or sometimes the State Intelligence Service (SIS), without any harassment. If there was a passport, DIE could check the person’s details on their database, but this was not possible with an Emergency Travel Document (ETD). If there was an ID card number, checks could be done referring to the original passport. It was possible to establish whether a person had left the country illegally by looking at the passport as it would lack the embarkation stamp, but this would not be possible with an ETD. ETDs were considered full official documents issued by the Sri Lankan authorities. They were a proof of identity and were valid to go through any checkpoints. ETDs were stamped and returned to the returnee. The role of DIE ended when they passed returnees to CID.” (FCO October 2009 report) [15m] (paragraph 1.4)

“DIE had access to an alert list. This list contained information relating to court orders, warrants of arrest, jumping bail, escaping from detention as well as information from Interpol and the SIS computer system. The DIE computer system had its own alert system related to the alert list but this did not indicate the exact reason for the alert. Following an alert, DIE would refer these people to CID or SIS to establish the position.” [15m] (paragraph 1.5)

“SIS records dated back 60 years and were being put onto computer. SIS computer records were available at the airport to both SIS and (on request) CID officers. On the other hand, police records were held for five years only; occasionally on computer, but normally on paper only.” [15m] (paragraph 1.6)

It is clear from this information that were the applicant forced to return to Sri Lanka, given his particular profile, and having left the country unlawfully, he would be at significant risk of interrogation and detention upon arrival in Colombo. Given independent country information about lack of transparency and accountability once people are detained combined with evidence of use of torture, there is a real chance that this applicant will suffer serious harm if forced to return.

The Reviewer’s Reasons

12    On 2 December 2010, the reviewer produced written reasons for his recommendation. So far as is relevant to this appeal, the reasons described the adviser’s submission dated 6 September 2010 as follows:

48.    The claimant fears that if he returns to Sri Lanka he will suffer persecution by the Sri Lankan authorities or pro-government paramilitary groups on account of some or all of: his imputed political opinion in support of the LTTE and on account of his work for them, and also partly on account of his illegal departure from Sri Lanka and asylum claim in Australia; his Tamil ethnicity; his identity as a young person of Tamil ethnicity; and his membership of particular social groups, namely young Tamil males and / or young Tamil males from the north of Sri Lanka; and persons suspected of having LTTE links.

49.    It is submitted that country information indicates that the authorities continue to act against people suspected of LTTE involvement, including people with the claimant’s profile. Some reports are cited which suggest that the Sri Lankan authorities perceive asylum seekers as LTTE members and sympathisers. There has been no substantial or material change to human rights circumstances in Sri Lanka such as to remove the basis of the claimant’s well-founded fears. Several reports are cited, including by the US State Department, Amnesty International, Human Rights Watch and the UNHCR. A 2010 report by the Edmund Rice Centre is cited; it states that asylum seekers returned to Sri Lanka in recent months were handed over to the CID and taken into custody, and that some were detained and some had been assaulted.

    [emphasis added]

13    In a section of the reasons headed “Independent Country Information” there is reference at [99] under the heading “Returnees to Colombo” to the first paragraph of the additional information referred to in the reviewer’s letter dated 19 November 2010, which is extracted at [10] of these reasons, and at [102] under the heading “Interrogation at Colombo Airport” there is reference to the second paragraph of the additional information referred to in that letter.

14    In the section headed “Findings and Reasons” the reviewer concluded:

158.    The advisers’ first submission cites a report by the Edmund Rice Centre stating that asylum seekers returned to Sri Lanka in recent months were handed over to the CID and taken into custody, and that some were detained and some had been assaulted.

159.    This is not in accord with the information provided by the Australian High Commission in Colombo to the effect that there are no procedures in place to indentify failed asylum seekers and that the only way that the authorities would be alerted to a failed asylum seeker returning – and I note this would apply to returnees generally – is if the airlines or IOM notified them that a person was a deportee or was being escorted. The report states that a Tamil returned to Colombo after seeking asylum in Australia would therefore be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures.

160.    This is an example of the divergent views in the independent country information about various aspects of the situation in Sri Lanka, including this issue. This presents a significant challenge for decision makers. However, it is the decision maker’s responsibility to come down on one side or the other of this argument and I accept the advice of the Australian High Commission whose role is to be informed in detail on such matters in order to advise policy-makers – that is, ministers and officials – in Australia. I accept that generally speaking, a Tamil returned to Colombo after seeking asylum in Australia would be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures.

    [emphasis added]

Review by the Federal Magistrates Court

15    The declaration made by the Federal Magistrates Court on this aspect of the appeal was that the second respondent made an error of law in that he:

[F]ailed to determine an integer of the applicant’s claims, namely whether the applicant was at risk on return to Sri Lanka on the basis of being a person who had departed illegally.

16    The Federal Magistrate said:

30.    The claim that the applicant relied upon his illegal departure from Sri Lanka was identified by the Independent Merits Reviewer when listing a number of bases for the applicant’s claim:

[48]    The claimant fears that if he returns to Sri Lanka he will suffer persecution by the Sri Lankan authorities or pro-government paramilitary groups on account of some or all of: his imputed political opinion in support of the LTTE and on account of his work for them, and also partly on account of his illegal departure from Sri Lanka and asylum claim in Australia; his Tamil ethnicity; his identity as a young person of Tamil ethnicity; and his membership of particular social groups, namely young Tamil males and / or young Tamil males from the north of Sri Lanka; and persons suspected of having LTTE links. (emphasis in original)

31.    The Tribunal (sic) then dealt with the applicant’s claim with respect to being forced to work for the LTTE, before turning to his risk as a result of being a failed asylum seeker. The Tribunal (sic) does not specifically address the applicant’s claim to be at risk as being a person returning to Sri Lanka after an illegal departure.

32.    It was argued by counsel for the Minister that the claim with respect a person who exited Sri Lanka illegally was subsumed in the other claims. Certainly, this ground was listed with the other bases of the applicant’s claim in the various documents provided to the Tribunal as the applicant relied upon each of the basis of claims both individually and cumulatively. However, it is clear that a person could be one who had legally or illegally left Sri Lanka, and either sought asylum or not sought asylum before return. That is, some of the persons who illegally depart from Sri Lanka may fail in seeking asylum, and some persons who legally depart from Sri Lanka may fail in seeking asylum. Similarly, some persons who illegally depart from Sri Lanka may return without ever having sought asylum. Whilst the two categories, illegal departees and asylum seekers, certainly overlap, not all persons will be within both categories. To say that failed asylum seekers are not identified upon return does not answer the question of what happens to persons who depart illegally from Sri Lanka. In this regard it appears to me that the Independent Merits Reviewer has failed to deal with one of the claims of the applicant and thus an error of law and a breach of procedural fairness are established.

Consideration

17    The appellant contended in his written submissions that the reviewer dealt with the claim that the first respondent would be regarded as an LTTE member or supporter as a result of his unlawful departure from Sri Lanka. The appellant argued that at [158] - [160] the reviewer accepted the country information provided by the Australian High Commission which reported that there were no procedures in place to identify failed asylum seekers. The reviewer then said that “this would apply to returnees generally”. By accepting this country information, it was submitted that the reviewer determined and rejected the claim based on the fact that the first respondent was a failed asylum seeker. The reviewer then went on to find that the absence of screening procedures “apply to returnees generally”. By this latter finding, the appellant contended, the reviewer determined the claim based on unlawful departure. The finding in relation to “all returnees” encompassed people returning who had departed unlawfully.

18    It is necessary to approach the construction of the reviewer’s reasons fairly and not pedantically. Minor errors of expression should not be used to mischaracterise the general effect of the reasons. The reasons should not be approached with the aim of finding error.

19    The appellant contended that it would be at odds with this approach to hold that the reasons did not address the unlawful departure claim.

20    Further, the reasons must be read in the context of the way in which the case was argued before the reviewer. It can be expected that an argument which was peripheral rather than central would be addressed less fully than an argument which was central to the case.

21    The appellant submitted that the central claim made by the first respondent was that he engaged in activities which the Sri Lankan authorities would take as indicating that he supported or was a member of the LTTE. The reasons of the reviewer dealt with this central claim in detail. The unlawful departure claim was not a matter of primary emphasis in the argument put to the reviewer. The first respondent’s adviser’s submissions addressed it but briefly. In those circumstances, so it was contended, it is understandable and appropriate that the reviewer dealt with the argument shortly.

22    A fair reading of [158] – [160] of the reasons in the context of the way in which the issues were agitated before the reviewer and without seeking to establish error, nonetheless indicates the subject of these paragraphs was the danger posed to returned asylum seekers rather than persons who had departed Sri Lanka unlawfully.

23    The emphasised phrases in these paragraphs (extracted at [14] of these reasons) make express reference to failed asylum seekers.

24    The discussion in [158] of the reviewer’s reasons is introduced by reference to the report by the Edmund Rice Centre. This report is also concerned with returning asylum seekers (see the emphasised passages in the first respondent’s adviser’s letter extracted at [9] of these reasons).

25    Then in [159] of the reasons, the reviewer relies on the information provided by the Australian High Commission in Colombo. This information is about failed asylum seekers (see the emphasised phrases in the country information extracted at [10] of these reasons).

26    There is only one reference in these paragraphs capable of applying the reasoning concerning failed asylum seekers to unlawful departees. This is the observation in [159] “and I note this would apply to returnees generally”. In the context this should be read as supporting or reinforcing the finding in relation to failed asylum seekers. It is not apt to apply to unlawful departees the finding relating to failed asylum seekers. If it were intended to do so there would have been an express reference to unlawful departees.

27    In oral argument, Dr Donaghue, who appeared as counsel for the appellant, contended that if, contrary to the argument just considered, the reviewer did not deal with the situation of unlawful departees, then the reason was that the first respondent did not clearly articulate a claim on that basis. As a result, the reviewer was not bound to deal with that argument.

28    This contention should not be accepted. In the first respondent’s adviser’s letter dated 6 September 2010, one of the grounds of the first respondent’s claim is stated as “(xi) His unlawful departure from Sri Lanka …”. It is true that the adviser’s submissions quite often address the position of failed asylum seekers who left unlawfully and do not maintain a clear distinction between the position of failed asylum seekers and the separate position of unlawful departees. However, the 6 September 2010 submission clearly articulated a separate argument for unlawful departees. And the 30 November 2010 submission concluded:

It is clear from this information that were the applicant forced to return to Sri Lanka, given his particular profile, and having left the country unlawfully, he would be at significant risk of interrogation and detention upon arrival in Colombo. Given independent country information about lack of transparency and accountability once people are detained combined with evidence of use of torture, there is a real chance that this applicant will suffer serious harm if forced to return. [emphasis added]

For these reasons, the Federal Magistrate did not err in holding that the reviewer failed to consider whether the first respondent had a well-founded fear of persecution on return to Sri Lanka because he had departed that county illegally.

the risk of persecution ISSUE

The Reviewer’s Reasons

29    This ground concerns the reviewer’s approach in [160] of his reasons. After referring to country information from the Edmund Rice Centre (at [158]) and the Australian High Commission (at [159]) concerning the scrutiny by government authorities of returned asylum seekers, the reviewer said:

This is an example of the divergent views in the independent country information about various aspects of the situation in Sri Lanka, including this issue. This presents a significant challenge for decision makers. However, it is the decision maker’s responsibility to come down on one side or the other of this argument and I accept the advice of the Australian High Commission whose role is to be informed in detail on such matters in order to advise policy-makers – that is, ministers and officials – in Australia. I accept that generally speaking, a Tamil returned to Colombo after seeking asylum in Australia would be under no more scrutiny than any other Tamil returning to Colombo and would be subject to the same screening procedures.

[emphasis added]

Review by the Federal Magistrate’s Court

30    In relation to this aspect of the reviewer’s reasons, the Federal Magistrate said:

45.    … the law requires an assessment of the risk to the asylum seeker, not a positive finding as to what the future will in fact hold. …

46.    The law in this area does not require a decision-maker to “come down on one side or the other”. Rather the law requires the decision-maker to first make an assessment of the material and identify the facts and circumstances which they are persuaded to accept or reject and assess the weight to place on each item of evidence. Secondly, in cases involving asylum seekers, the legal test is not limited to whether or not they have proven a particular factual element (such as the application of physical force on a specific occasion), but ultimately requires an assessment of risk in determining whether or not the asylum seeker holds a well-founded fear of persecution.

47.    To approach the task on the basis that a decision-maker has a responsibility to “come down on one side or the other” can only lead to real concern that rather than assessing and weighing the evidence in order to determine which facts and circumstances the decision-maker is persuaded of, (and the weight to be placed on the material in order to properly assess the risk) the decision maker felt forced to make a binary decision and effectively pick one version or the other, even though the decision maker may not be persuaded to the requisite standard that any particular given state of affairs actually exists: the very error committed by the trial judge in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 2 All ER 712; [1985] 1 WLR 948; [1985] 2 Lloyd’s Rep 1. The assessment of risk is a different finding to a decision as to whether a particular factual element of a cause of action has been established.

Consideration

31     It was accepted by both the appellant and the first respondent that one function the reviewer had to perform was to assess the evidence produced, determine what evidence was relevant, and if that evidence was conflicting, to make findings of fact. The parties also accepted that the ultimate issue which the reviewer had to determine was whether the claimant fell within the definition of refugee in Art 1A of the Convention and they further agreed that this task required an assessment of whether, on the facts found, there was a real chance that the claimant would suffer persecution in the future as a young Tamil returning to Sri Lanka. Mr Niall SC, who appeared on behalf of the first respondent, drew attention to the fact that the ultimate question involved more than the resolution of contested fact. He referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281:

The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future; the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.

32    The parties differed on the interpretation of [160] of the reviewer’s reasons. The appellant contended that when the reviewer said that he had to come down on one side or the other of the argument he was referring to the difficulty of making a fact finding on contradictory evidence. The appellant’s written submission encapsulated the argument at [33] as follows:

…Those words did no more than recognise that, as part of the task of assessing the risk of persecution in the future, it was necessary to reach factual conclusions to provide the foundation for the assessment of risk. [Emphasis in original]

33    The first respondent, however, submitted that the reviewer misunderstood the ultimate questions to be resolved and the full scope of his function. Rather than undertaking an assessment of the risk of persecution to the claimant, the reviewer proceeded as if the fact finding on the issue of the scrutiny of asylum seekers in the past resolved the question whether the claimant fell within the definition of a refugee. The reviewer failed to make an assessment of the risk to the claimant of persecution in the future and thereby asked himself the wrong question. This was confirmed by the conclusion that “generally speaking, a Tamil returned to Colombo after seeking asylum in Australia would be under no more scrutiny than any other Tamil returning to Colombo”. It was said that this conclusion shows that the reviewer failed to address the particular risk to the appellant. The failure of the reviewer thus to ask himself the right question was a jurisdictional error and the Federal Magistrate was correct, so it was argued, to make the declaration in [1(b)] of his orders in relation to the country information concerning the scrutiny of returned asylum seekers.

34    The first respondent’s argument should be accepted. There is no indication in [160] that the reviewer was seeking to find facts as part of a process of determining whether the appellant faces a real chance of persecution as a returned asylum seeker. The language of the reasons concerning the scrutiny by government authorities in Sri Lanka of returned asylum seekers suggests that the relevant enquiry was concluded once the reviewer determined whether, as a fact, failed asylum seekers were subject to scrutiny at the airport. The reviewer did not conclude the discussion with any judgment of the future risk of scrutiny to the appellant as a young Tamil male.

35    Judges of this Court are used to examining decisions of the Refugee Review Tribunal on refugee claims. They follow a formula by which the relevant question which the member must address is set out at the commencement of the decision by reference to the extensive jurisprudence in Australia on the meaning of the definition of refugee in the Convention. This practice makes it clear that the member has articulated the purpose of the decision making process. Of course, the mere statement of the question does not always mean that the decision maker has addressed the right question, but it is a valuable pointer on judicial review to the likelihood that the member has done so. This practice is not reflected in the reviewer’s reasons in the present case. The reviewer set out the relevant law at the commencement of his reasons. This presumably was to indicate the purpose to which the reasons were directed. The relevant law was stated in three short paragraphs which, in substance, merely set out the text of Art 1(A) of the Convention. There is no reference in the reasons to the task on which the reviewer was embarked except this brief reference to the text of the Convention definition. Whilst the definition is the appropriate starting point, such a bare and limited reference to the applicable law gives no support to the view proposed by the appellant that the reviewer understood the totality of his function in relation to the question of the scrutiny by government authorities in Sri Lanka of returned asylum seekers.

Conclusion

36    In the result the appeal must be dismissed with costs.

Associate:

Dated:    19 December 2011