FEDERAL COURT OF AUSTRALIA

SZQJH v Minister for Immigration and Citizenship [2012] FCA 297

THE COURT ORDERS THAT:

1.    The appeal be allowed

2.    The orders made by the Federal Magistrate’s Court on 2 November 2011 be set aside, and in lieu thereof:

(i)    It be declared that in recommending to the first respondent that the appellant was not a person to whom Australia owed protection obligations, the second respondent made an error of law, in that he failed to observe the requirements of procedural fairness, by not addressing the appellant’s claim to membership of a particular social group of young Tamils from the East whom the authorities generally suspected, by reason of those characteristics, of having links with LTTE members, and by reason thereof had a well founded fear that he would face persecution by those authorities if he were to return to Sri Lanka now or in the reasonably foreseeable future.

(ii)    The first respondent pay the applicant’s scale costs in the sum of $6240.

3.    The first respondent pay the appellant’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1        This is an appeal from a decision of the Federal Magistrates Court refusing the appellant relief in respect of an assessment and recommendation made by an independent merits reviewer that the appellant not be recognised as a person to whom Australia has protection obligations: SZQJH v Minister of Immigration [2011] FMCA 854.

THE REVIEW PROCESS

2        The appellant is a citizen of Sri Lanka who arrived at Christmas Island by a boat on 20 March 2010. By reason of that fact, he was an offshore entry person who, by force of s 46A of the Migration Act 1958 (Cth), was not entitled to apply for a visa. Under s 46A(2) the Minister might determine if he considered it in the public interest that a person could apply for a visa and lift the bar imposed by s 46A(1). Such a decision may only be made by the Minister personally. He does not have any duty to consider whether or not to exercise that power, whether he is requested by the person to do so or anyone else or in any other circumstances. The Minister’s Department established a process where the Minister was considering whether to exercise his powers under s 46A to lift the bar to permit a person to have his or her claims assessed. The nature of the scheme for the assessment is described in the reasons of the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [38]-[52] and [73]. The obligation to afford such a person procedural fairness is an incident of the review process that the High Court identified. That obligation arises because a person is held in immigration detention pending the conduct of such enquiries, including reviews of the kind of which the appellant complains, while the Minister considers whether or not he will exercise his powers under s 46A(2).

THE ISSUES IN THE APPEAL

3        The appellant claims that when assessing his claims the independent merits reviewer failed to afford him procedural fairness in the following two respects:

(1)        by failing to disclose, and invite comment, on the substance of information in two documents, namely a publication of the United Nations High Commissioner for Refugees on eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka at 5 July 2010 (the UNHCR guidelines), and an advice of the Department of Foreign Affairs and Trade from its Colombo High Commission dated 14 October 2009 (the DFAT advice).

(2)        by failing to address and identify a clearly articulated claim of the appellant’s fear of persecution for reasons of his membership of a particular social group, namely young Tamils from the east of Sri Lanka whom the authorities generally suspected as having links with the Liberation Tigers of Tamil Eelam (LTTE) or being LTTE members.

THE APPELLANT’S OTHER CLAIMS IN THE REVIEW PROCESS

4        I will briefly deal with the appellant’s claims that were rejected by the reviewer in a way that is not challenged on this appeal. These provide a background in which the two issues must be considered. The appellant made a number of claims of past persecution in Sri Lanka. He was a goldsmith with a business in Colombo. He claimed that in 2006 he had tried to obtain a visa from the Australian High Commission, and that he was assisted in this by a Minister in the Sri Lankan government. He claimed that a few days after he lodged his visa application, he had been abducted by members of the Criminal Investigation Department (CID) of the Sri Lankan police. He claimed they had taken him to a place where he had been beaten and tortured to admit that he supported the LTTE. He claimed that after a month he had been released by the CID on condition that he report for a further six months. He claimed that for about the following 12 months the CID officers had made demands on him. It suffices to say that the reviewer rejected that this incident occurred by reason of any Refugee Convention-related persecution. The reviewer found that the claim that the appellant had been detained by the CID as a suspected LTTE member or agent, and subsequently released, was implausible. He also found the conduct could be explained, to the extent that the appellant, as a goldsmith, may have been perceived to be wealthy, as having been that of criminally opportunistic and mercenary persons rather than Convention-related.

5        The appellant also claimed that he had been abducted in 2008, seated on a motorcycle between two other persons and driven for five hours to a camp. He claimed that the camp’s operators pressed him to join their group but he said they never told him which group they were members of. The reviewer found that claim was “full of implausibility”. The appellant also made a claim that he had given details of his past, in the presence of a Sri Lankan policeman, to an East Timorese official when he was in that country but nothing turns on this.

THE RSA PROCESS

6        Prior to the independent merits review, the appellant was the subject of a refugee status assessment (RSA). A delegate in the Department conducted that assessment. During the course of the RSA, relevantly, the delegate identified, the appellant’s claims, including his claim that he would be persecuted on return to Sri Lanka by the authorities or their paramilitary or allies, partly due to his status as a young Tamil male from the east. The assessor dealt with the appellant’s claims that he would be detained at Colombo when he returned or harmed by the Sri Lankan army or its paramilitary cohorts. The assessor referred to, among others, information from the British High Commission of August 2008 and a report by the United Kingdom Home Office on Sri Lanka in 2009 dealing with the circumstances in which persons were at risk of harm on return. The latter report identified persons at such risk included those:

    with an outstanding arrest warrant, a criminal record, or connection with the LTTE;

    who had departed Sri Lanka illegally;

    who were involved with media or with non-government organisations (NGOs);

    who lacked identity cards or other documentation.

7        The information from the High Commission was to similar effect and was also set out by the assessor in the RSA. The RSA assessor found that there was no suggestion that the appellant came within any of those criteria. He also rejected the appellant’s claim that he might be harmed on his return as being perceived as a failed asylum seeker, carrying with it the implication that he was being critical of the present Sri Lankan regime. The assessor said that, country information indicated that persons who were returned to Sri Lanka were not ordinarily subject to harm unless they had a profile or were of interest to the authorities.

8        The assessor noted country information that, in general, agreed that Tamils from the north and east of the country were likely to receive greater scrutiny than others, and that the presence of any of the above factors that I have set out would increase the risk that an individual would encounter difficulties with the authorities, including possible detention. The assessor also referred to a portion of the DFAT advice that is not of present relevance. The assessor concluded that he was satisfied that the applicant did not meet the definition of “refugee” in the Refugees Convention.

THE REVIEW PROCESS

9        The appellant gave an interview to the reviewer and his advisor provided submissions. Those submissions articulated the substance of the appellant’s claims, and the interviewer set them out in full in his assessment. The claims were put as falling into three of the five Convention-related categories, namely race, membership of a particular social group and/or political opinion. The appellant claimed that it was not possible completely to separate one of those categories from the others, because all three overlapped to some degree. The appellant’s first category, race, was based on his ethnicity as a Tamil. There was no issue in the review that he was a Tamil. His second category as articulated in the submission to the reviewer, relevantly, was:

“…

The [appellant] falls within the category of young Tamils from the east whom the authorities generally suspect as having links with LTTE members.

We submit that the delegate failed to consider whether the Sri Lankan authorities perceived that [the appellant] was a member of the particular social group that being young Tamils from the east and therefore a LTTE member or collaborator.

Based on the fact that the [appellant] was detained on suspicion by the Sri Lankan CID of that very suspicion, and that he was kept (albeit unwillingly) in a Karuna camp for three months and refused to join their cause, it is reasonable to assume that the Sri Lankan authorities would perceive him as having connections with, or being a LTTE member or collaborator.

Whether the [appellant] actually supported the LTTE is not relevant. If the Sri Lankan authorities perceived him as having links with, or being a LTTE member, [this] would result in his persecution by the authorities.

It is submitted that the delegate erred by not taking the above reasonable approach in classifying [the appellant] into the prescribed category of a particular social group (link with, member or collaborator of LTTE), whether actual or perceived.” (emphasis added)

10        The third category of the appellant’s claim was that of political opinion. This claim was based on the appellant’s claims of what had happened to him in Sri Lanka. The assessor had to some degree accepted those claims. These were rejected by the reviewer.

11        The appellant claimed that in about October 2008, he had travelled from Sri Lanka to Singapore by air, been detained at Changi Airport and subsequently deported on the same day. During the course of the review interview, the reviewer informed the appellant that he had country information and a report from DFAT stating that while Sri Lankan authorities made checks at the airport on people who had been deported to Sri Lanka, if they did not have a pre-existing political profile or had not been previously under suspicion, in which case they would be let go quite quickly. The reviewer asked the appellant to comment on those matters which he did, by relating to his own claim of experiences.

12        In his assessment report, the reviewer set out all five of the categories from the UNHCR report together with the UNHCR’s further consideration of internal flight or relocation as alternative solutions for persons who were in Sri Lanka. The only relevant risk profile was the first, being that of person suspected of having links with the LTTE. Within the UNHCR’s explanation of the first risk category, its report said:

“A.    Potential Risk Profiles

1.    Persons Suspected of Having Links with the Liberation Tigers of Tamil Eelam (LTTE)

    …

Amongst issues relevant to the determination of eligibility for refugee protection are allegations by a number of sources regarding: torture of persons suspected of LTTE links in detention; death of LTTE suspects whilst in custody; as well as poor prison conditions, which include severe overcrowding and lack of adequate sanitation, food, water and medical treatment. According to some reports young Tamil men, particularly those originating from the north and east of the country, may be disproportionately affected by the implementation of security and anti-terrorism measures on account of their suspected affiliation with the LTTE.

In light of the foregoing, persons suspected of having links with the LTTE may be at risk on the ground of membership of a particular social group. Claims by persons suspected of having links with the LTTE may, however, give rise to the need to examine possible exclusion from refugee status.”

The UNHCR report noted that in the case of persons seeking to relocate to Colombo:

“It should be borne in mind that young Tamil men originating from the north and east of the country could encounter closer scrutiny during the police registration process and may, in some cases, be denied a residence permit.”

13        The reviewer also set out all of the DFAT advice. Relevantly, question and response 6 in that advice dealt with what factors might affect the way in which an individual would be treated at the airport. DFAT’s response was that while anecdotal evidence suggested that a number of listed factors could influence how a person was treated at the airport, there was no hard evidence to prove those anecdotes. The DFAT advice suggested that unless there had been an alert placed on a person in the immigration system at the airport that exactly matched the biodata information presented to the immigration officer, a returning person would not be stopped from entering. The DFAT advice also said that experience had not shown that failed asylum seekers were treated differently to other deportees, but it listed factors that would attract attention, namely:

“•    has a previous record as a suspected or actual LTTE member;

•    has been identified as having relatives in the LTTE[;]

•    has a previous criminal record and/or outstanding arrest warrant;

•    has jumped bail/escaped from custody;

•    has signed a confession or a similar document;

•    has been asked by the security forces to become an informer;

•    has visible scarring;

•    has returned from London or another centre of LTTE fundraising;

•    has illegally departed from Sri Lanka;

•    has made an asylum claim abroad;

•    lacks an ID card or other documentation (CISNET Sri Lanka CX234989).”

14        The reviewer also set out a similar but slightly shorter list of factors identified in the August 2009 United Kingdom Home Office advice on the same topic. That advice, among other things, said that in general, non-government and international sources agreed that Tamils from the north and east of Sri Lanka were likely to receive greater scrutiny than others. The Home Office advice said that the presence of a number of the factors listed above would increase the risk that an individual could encounter difficulties with the authorities, setting out, substantively, what the assessor had set out in his RSA assessment.

15        The reviewer then set out his findings and reasons. He identified the appellant’s claims for refugee status as relating to his status as a Tamil, and to links imputed to him by the army and other paramilitary and State authorities to the LTTE, and in particular, to the cause of Tamil separatism generally. He also identified the appellant’s claim that because he was a failed asylum seeker he would attract persecution from the same groups. The reviewer said that those claims related cumulatively to the appellant’s “Convention-related factors of ‘race’ and imputed ‘political opinion’”. The reviewer then identified the appellant’s claim of a fear of persecution by reason of his membership of a particular social group, namely Sri Lanka’s relatively wealthy or business class of goldsmiths.

16        Significantly, the Minister conceded that the reviewer’s identification of the appellant’s claims, when he considered them in his reasons did not expressly recognise the appellant’s clearly articulated claim to belong to the particular social group of young Tamils from the east whom the authorities generally suspect of having links with LTTE members: see [32] below.

17        The reviewer found that the speed with which the appellant was deported indicated that deportation of potentially illegal workers from Singapore to Sri Lanka was not unusual or exceptional. He disbelieved the appellant’s accounts of how he managed to clear formalities and checks upon re-entry into Sri Lanka. The reviewer found that although the appellant had been deported to Sri Lanka, he had not come to the adverse attention of the authorities or of any group said to be vetting potential terrorist, separatist, criminal, political opponents or other undesirables at the airport. The reviewer rejected the appellant’s claim that he had to, and was able to, bribe his way out of the airport. Importantly, the reviewer said that he gave weight to the ease with which the appellant had passed unimpeded both out of, and back into, Sri Lanka on this trip and subsequently, when he left on the journey that brought him ultimately to Australia, without attracting harm or other relevant difficulty. The reviewer said in that regard:

“In particular, I give this weight in assessing his claims about what would happen to him in the event of return in the reasonably foreseeable future.”

18        The reviewer rejected the appellant’s claims that if he were deported to Sri Lanka he would come to adverse attention of the Sri Lankan authorities for these reasons. He also rejected the appellant’s claim that he faced a real chance of persecution if he returned to Sri Lanka as a failed Tamil asylum seeker. He found that, based on the DFAT advice, the UK Home Office advice, and the UNHCR eligibility guidelines, the appellant had the potential of coming to the attention of authorities checking to establish if he had previously left Sri Lanka illegally. However, the reviewer concluded that the appellant would be able to establish in due course that he left Sri Lanka legally and “[not] for reasons of being imputed having made an asylum claim abroad”.

19        I suspect that word “not” (that I have put in square brackets above) was accidentally omitted from this passage, having regard to the reviewer’s finding that the appellant would not have fitted any of the various identified characteristics that the three official sources had suggested the Sri Lankan authorities looked at on a person’s return to Sri Lanka as singling them out from ordinary travellers. The reviewer also found that in the event of enforced return from countries like Australia, Sri Lankans of all ethnicities were referred to a police check at the CID, although a Tamil, particularly from the north and east, might also be subjected to closer scrutiny. However, the reviewer found the advice from the UK Home Office did not suggest that such treatment in and of itself would amount, or lead, to serious Convention-related harm to Sri Lankan Tamils upon returning to their country. The reviewer accepted that the appellant might be interviewed by authorities upon his return. But, the reviewer gave weight to the fact that he had left the country legally on two occasions and had been allowed to re-enter without impediment. He concluded that if the appellant were interviewed on return, that consequence would be in the enforcement of the ordinarily generally-applicable laws of the Sri Lankan government and not for any Convention-related reason.

20        Ultimately the reviewer recommended that Australia did not owe protection obligations to the appellant.

THE TRIAL JUDGE’S REASONS

21        The trial judge dealt with the first ground now raised as a basis for the appeal. He found that, in substance, the RSA assessor had identified most of the criteria by reference to which a person would be subjected to particular treatment at the airport, being checks that were applied to detect suspects and persons with criminal records. His Honour found that the appellant was, in substance, on notice during the review of the matters in the DFAT advice and the UNHCR guidelines about which he subsequently complained.

22        In relation to the second ground in this appeal, his Honour found that the reviewer did not express his reasons by explicitly referring to a particular social group that his Honour identified as Sri Lankans who were young, male, from the east, of Tamil ethnicity, who were likely to be perceived or suspected of having some allegiance to the LTTE or Karuna (an allied paramilitary group of the Sri Lankan government), and possibly held views opposed to their treatment by the government of Sri Lanka.

23        That group is different from the group that the appellant’s submissions identified above at [9]. It is not surprising that the reviewer did not express an opinion about the group referred to by the trial judge, because it was not the group in the clearly articulated claim in the appellant’s submissions that I have set out.

24        His Honour went on to find that the reviewer rejected the contention that:

“the central and critical attribute of the postulated particular social group, that its members were likely to be considered to have some allegiance to the LTTE or the Karuna group, described the applicant.”

25        The trial judge found that that contention had been based on the appellant’s claims to past mistreatment, which had been rejected by the reviewer. He then said:

“It is inappropriate to scrutinise the Reviewer’s expression of his reasons too nicely: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. In this case the particular social group in question was defined by certain of the applicant’s own personal characteristics which were fairly commonplace and which the Reviewer accepted as applying to the applicant: his age, sex, ethnicity, origin and nationality, as well as additionally, an important political element. Because of the significance of this political element it was, understandably, relevantly the focus of the Reviewer’s consideration. Having rejected the contention that this political characteristic described the applicant, the Reviewer was not required to give further or more comprehensive consideration to the particular social group of which it was allegedly an attribute, in particular, to express his reasons by reference to the totality of the attributes of the group of which the applicant claimed membership. I find that the Reviewer’s reasons disclose sufficient consideration of the elements of the particular social group in question, and the extent to which it comprehended the applicant, to conclude that he did not err in the manner alleged.” (emphasis added)

CONSIDERATION – GROUND 1:

Did the reviewer fail to put the appellant on notice of the substance of the two documents?

26        The appellant argued that the reviewer had failed to put him on notice that he would use the material in the DFAT advice and UNHCR guidelines to assess the likelihood of his facing, at the airport, a real chance of persecution in the event of his returning to Sri Lanka as a failed asylum seeker. The appellant argued that this material was, in substance, a form of checklist that he had not been given an opportunity to address.

27        I reject that argument. In my opinion, the appellant was fully alive to the information set out in the RSA as to the characteristics that the Sri Lankan authorities searched returnees for at the airport including persons who had Tamil ethnicity and other characteristics of the appellant.

28        The obligation of procedural fairness with respect to adverse country information is that a reviewer must sufficiently put to a claimant or his advisor for comment the substance of those aspects of the country information known to the reviewer which the reviewer considers may bear upon the claims that the person has made. The obligation is enlivened when the decision-maker or, in this case, the person conducting the review, is aware of adverse information that is credible, relevant, and significant to the assessment and recommendation process: Plaintiff M61 243 CLR at 357 [91] and 358 [98]; Applicant VEAL of 2002 v Minister for Immigration (2005) 225 CLR 88 at 95-97 [16]-[18]. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said that in conducting a procedure, such as a review, in order to accord procedural fairness to a person whose interests could be adversely affected he “had, at least, to know the substance of what was said against him” (Applicant VEAL 225 CLR at 100 [27]).

29        The appellant complained that the “checklist” set out in the DFAT advice was extensive. That is correct. The reviewer considered each of the various characteristics listed there in respect of the appellant. The reviewer found that it was unlikely that the Sri Lankan authorities at the airport would come to a conclusion that the appellant had a previous record as a suspect or actual LTTE member or had been identified as having relatives in that organisation. Importantly, the appellant was already on notice that those, or very similar, criteria would be considered by the authorities on his return. A submission made in the review process by the appellant’s advisor had quoted from the similar information from the British High Commission in Colombo in October 2009 and asserted that the appellant fell within some of those criteria. The submission asserted that because he was as a Tamil from the north or east of the country, he would be likely to receive greater scrutiny in the presence of factors such as an outstanding arrest warrant, criminal record, connection with the LTTE, illegal departure from Sri Lanka, involvement with media or NGOs and lack of identity card or other documentation.

30        The fact that the reviewer looked at a longer list of possible factors in the DFAT advice or UNHCR guidelines that might have brought the appellant to the attention of the authorities and negated them, could not be considered to enliven the obligation to put all of those factors to the appellant as potentially adverse information. Rather, what the reviewer did was more favourable to the appellant than he had sought. Of course, had the reviewer considered any of those factors as applicable (rather than, as he found, inapplicable) to the appellant, the reviewer might have formed the view that he would come to the particular attention of the authorities. In that case the reviewer would then have had to turn to other considerations as to what might happen to the appellant. I am not satisfied that any relevant difference has been established (and certainly none was identified by the appellant) between the information in the DFAT advice and UNHCR guidelines on the one hand and that of which the appellant was already apprised, concerning what might be taken into account or considered by authorities at the airport if he were returned to Sri Lanka.

31        For these reasons, I reject ground one.

CONSIDERATION – GROUND 2:

Did the reviewer fail to consider a claim?

32        The Minister conceded that the reviewer, in his findings and reasons, did not expressly deal with, or identify, that he was considering the claim expressly made in the appellant’s adviser’s submissions that:

“the [appellant] falls within the category of young Tamils from the east, whom the authorities generally suspect as having links with LTTE members.”

The Minister’s written submissions argued that:

“The reviewer did not expressly state that he did not find the appellant to be a member of a particular social group, but it is implicit in his reasons that he did not. In this regard, a defining characteristic of the asserted class was a suspicion on the part of the authorities of allegiance to the LTTE.”

33        He argued that, because the reviewer rejected the appellant’s claims of past mistreatment or persecution by reason of his alleged connection to the LTTE, the unstated, but necessary, consequence was that the reviewer did not accept he was a member of the asserted social group. The Minister argued that no other conclusion was open but that the reviewer implicitly found that the appellant was not such a member and relied on what the trial judge said at [39] of his reasons set out above.

34        I reject the Minister’s argument. In Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at 394-395 [26]-[27] Gummow and Callinan JJ said:

“[26]     At the outset it should be pointed out that the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.

[27]    The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of “businessmen in Russia” was a reason for his persecution and relevantly nothing more. The tribunal should have decided the matter which was put to it, whether Mr Dranichnikov was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.” (footnote omitted)

35        In my opinion, it is manifest that the reviewer failed to identify the appellant’s claim made in his advisor’s submission that I have quoted. At no point did the reviewer consider country information, outside the context of the airport, that dealt with any chance, let alone any real chance, that the appellant might be subjected to persecution by reason of his falling within the category of “young Tamils from the east whom the authorities generally suspect as having links with LTTE members”. The Minister’s argument amounted to no more than what the reviewer did. That was to find that, in the past, the appellant had not been so viewed on the occasions on which he claimed to have come to the attention of the authorities and naturally, because he had made no other claims, he had not been so viewed at all when he had been in Sri Lanka before. However, that finding did not deal with the alleged situation in this generic or general claim of the appellant namely, that the authorities generally, not just at the airport, viewed young Tamils from the east as having links with LTTE members and that, by reason of that perception, he would face persecution in the country.

36        No doubt, a consideration of what had happened in the past can inform what might happen in the future: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Nonetheless, as the Minister’s submissions accepted, the highest the argument that the reviewer gave any such consideration to this claim can go is by implication based on what the reviewer did. The Minister urged that the well-known caution concerning scrutiny of, and giving a “beneficial construction” to, the language of the way an administrative decision is expressed should be applied to the reviewer’s recommendations: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister argued that a beneficial construction should be afforded to the reviewer’s reasons here in order to find the implication for which he contended. I reject this argument. As Stone J pointed out in SZCBT v Minister for Immigration & Multicultural Affairs [2007] FCA 9 at [26]:

“The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”

37        I agree. On the other hand, as the Minister argued, the Court should not too readily draw an inference that, where the reasons are otherwise comprehensive and an issue has at least been identified at some point, it has nonetheless not been addressed: Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ. Their Honours said that, in such a case, it may be unnecessary to make a finding on a particular matter because it is subsumed in finding of greater generality or because there is a factual premise upon which the contention rests that has been rejected. The Minister argued that the appellant’s claims of past persecution and the reviewer’s finding that the ease on his three journeys with which the appellant had been able to pass into and out of the airport at Sri Lanka, were matters to which the reviewer said he had given weight in assessing what would happen to the appellant in the event of his return in the reasonably foreseeable future.

38        No doubt, that argument could have had substance if the reviewer gone on to make some findings about what might happen to the appellant beyond his entry at the airport. But, the reviewer at no point identified the appellant’s general claim that he was in a particular social group of young Tamil males from the east whom the authorities generally suspect as having links with LTTE members that might result in persecution in Sri Lanka generally. That was a class claim of the kind in Dranichnikov 197 ALR at 394-395 [26]-[27]. First, the reviewer had to identify that claim, not merely by reference to the appellant’s individual circumstances, but by reference to the way in which the claim itself was made. That, as Gummow and Callinan JJ said, is a question of law.

39        In order to accord procedural fairness, the reviewer had to determine whether such a group or class to which the appellant claimed to belong was capable of constituting a social group for the purposes of the Refugees Convention. But the reviewer did not. He did not even identify that class as being a matter to which he gave separate and individual attention, as he was required to do, in order to accord procedural fairness to the consideration of the appellant’s claims. As with what occurred in Dranichnikov, the reviewer did not decide the first question (namely as to whether the appellant could belong to the relevant class, being a class claimed to exist at the present time in Sri Lanka). Rather, the reviewer decided only that, first, in the past the appellant had not been able to establish a basis for such a fear and, secondly, he would not be likely to be detained at the airport, and gave no such consideration to whether class as claimed existed in Sri Lanka at all. The reviewer did not address the situation that the appellant might face if returned to Sri Lanka in respect of any situation other than in respect of the airport. Thus, he did not address whether a class of the kind the appellant claimed existed. Rather, the reviewer focused on the particular circumstances of the appellant’s personal history, as opposed to his having imputed to him the characteristics of a class of young Tamils from the east whom the authorities generally suspect as having links with LTTE members.

40        I am of opinion, that because this claim was not addressed, the reviewer failed to accord procedural fairness to the appellant.

41        The trial judge identified a different particular social group from that specifically claimed by the appellant. His Honour said that the reviewer was aware of that group. His Honour added two new aspects to the appellant’s description of the group, namely the Karuna group and the characteristic of the members of this expanded group possibly holding views opposed to their treatment by the government of Sri Lanka.

42        In my opinion, his Honour erred in identifying a claim that the appellant had not argued and in how he considered it. The claim identified by the trial judge was not the relevant claim that the appellant complained had not been addressed by, first, the assessor and, secondly, the reviewer in the review process. His Honour’s reasoning proceeded by mistakenly identifying as determinative the reviewer’s rejection of the appellant’s claims of past persecution or experiences in which he asserted he had had a connection to or a profile attributed to him relating to the LTTE. The trial judge reasoned that the particular social group was defined by certain of the appellant’s own personal characteristics which he described in the passages I have set out in [22] and [25] above.

43         However, that reasoning reveals errors made both by the reviewer and his Honour. The reviewer had rejected the appellant’s claim that, in the past, he actually had had the political characteristics described. His Honour considered a claim with a different set of characteristics from the claim put before the RSA assessor, the reviewer, his Honour and myself. The appellant’s claimed experiences in the past did not deal with his claim that if he were now to return to Sri Lanka he would fall within the particular social group he identified, that neither the reviewer nor his Honour considered.

44        The unaddressed claim was, effectively, that it was because the appellant was a young Tamil from the east, the authorities would now, therefore, perceive or impute him to be, with or without any basis, an LTTE member or collaborator. The fact that in the past such a fate had not befallen him did not address the fear his claim raised about the present situation in Sri Lanka for members of the claimed class. This particular claim had to be addressed by the reviewer, namely, whether the appellant had a well founded fear that, were he returned to Sri Lanka, there was a real chance that he would be treated, if such a group existed and he were a member of it, in a way that amounted to persecution. Merely because such treatment might not occur at the airport did not determine whether or not there was a well founded fear of a real chance that it would occur in other parts of the country. The reviewer did not address that issue and his Honour was in error in concluding that it was not necessary to do so.

45        For these reasons the appeal must be allowed.

Associate:

Dated:    27 March 2012