FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025

THE COURT ORDERS THAT:

1.    The appeal be dismissed

2.    The appellant pay the costs of the first respondent, to be taxed if not agreed.

3.    The parties have liberty to apply on the question of any ancillary orders.

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

REASONS FOR JUDGMENT

1    This is an appeal from a decision of Federal Magistrate Driver delivered on 29 March 2012. The Federal Magistrate granted a declaration that the recommendation of the second respondent (the Reviewer) was not made in accordance with law and restrained the appellant from relying upon the recommendation of the Reviewer.

2    The 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, has been referred to collectively throughout these reasons as the Convention.

Background

3    The first respondent is a national of Sri Lanka. He is a Tamil from the north of that country. He arrived in Australia on 9 May 2010.

4    The Department of Immigration and Citizenship conducted an entry interview with the first respondent on 22 May 2010. In that interview, the first respondent said that he left Sri Lanka because his life was in danger. He claimed that the Sri Lankan government killed all four of his brothers on account of their support of the Liberation Tigers of Tamil Eelam (LTTE) and other groups opposed to the government. He said that he feared for his life as the Sri Lankan army and groups working with the government had been looking for him.

5    The first respondent made a request for a Refugee Status Assessment (RSA) on 18 July 2010 supported by a statutory declaration in which he claimed that he would be killed by the Sri Lankan army if he were to return to Sri Lanka on account of his Tamil ethnicity and being a suspected LTTE supporter. He explained that he left Sri Lanka after “a life of danger”. He claimed that paramilitary groups had reported to the Sri Lankan army the fact that one of his brothers was a member of the People’s Liberation Organisation of Tamil Eelam (PLOTE) and that the others were suspected of being members of the LTTE. He claimed further that, on account of his brothers’ various associations and the fact that he lived in an area of Sri Lanka previously controlled by the LTTE, the Sri Lankan army suspected him of being part of the LTTE movement and were looking for him.

6    A delegate of the Minister conducted an interview with the first respondent on 21 July 2010. The delegate summarised the first respondent’s claims in his statutory declaration, entry interview and RSA interview. During the RSA interview, the first respondent claimed that, in November 2008, he and his family were put into a camp. He said that he departed this camp on 17 May 2009, and went to Mannar where he worked as a fisherman until he departed Sri Lanka on 12 April 2010. The first respondent claimed that he and the other fishermen in his village were required to assist the LTTE by letting the LTTE use their boats to transport goods, and that as a consequence, they were classified as LTTE associates.

7    The delegate found that the first respondent’s fear of Convention related persecution was not well-founded and that he was not someone to whom Australia owed protection.

The first respondent’s claims and the Reviewer’s decision

8    On 11 November 2010, the first respondent applied for an independent merits review of the delegate’s assessment.

9    As explained by the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [38]-[52] and [73], such a review process is part of a process conducted under administrative arrangements established by the Minister’s Department.

10    Independent Merits Reviewers are appointed by the Minister. Their function includes reporting their assessment and recommendation to the Minister for his consideration. The Minister is not obliged to take a Reviewer’s assessment or recommendation into account by virtue of s 46A(7) of the Migration Act 1958 (Cth) (the Act). Whilst that recommendation is not an administrative decision the assessment and review must be procedurally fair and must address the relevant legal question or questions: Plaintiff M61/2010E at [77].

11    The first respondent’s legal representatives provided written submissions in support of his application, in which they re-asserted his claims for protection on the basis of his Tamil ethnicity and imputed political opinion. They submitted that the Sri Lankan army was looking for him and suspected him of being an LTTE member due to his brothers’ involvement.

12    The Reviewer interviewed the first respondent on 27 June 2011. During the interview, the first respondent made numerous claims in support of his application, including the following:

(a)    he feared that he would be considered by the Sri Lankan authorities and their paramilitary supporters to be somebody who supports the LTTE, in light of his brothers’ LTTE connections and his having been forced by the LTTE to allow them to use his boat;

(b)    that his having assisted the LTTE with his boat was still causing him problems, in that he feared that the Sri Lankan army would want to question him to help find the locations of LTTE weapons and supplies;

(c)    his son was recently taken in for questioning as to the location of these weapons and supplies and the whereabouts of the first respondent;

(d)    he feared that he would be tortured to reveal the locations of these weapons and supplies; and

(e)    he expressed fear not only from the Sri Lankan army but also from paramilitary groups working with the Sri Lankan government, which, he believed, had an enmity to people who supported the LTTE and would target him.

13    The Reviewer accepted the first respondent’s assertion at [51] of his Statement of Reasons (SOR), that he had never been an LTTE member or supporter; that his brothers were associated, or presumed to be associated, with the LTTE, and that two of them had been killed and the other two were missing and presumed killed by the Sri Lankan authorities or the Indian Peacekeeping force; that he spent a considerable period of his life in LTTE controlled areas of Sri Lanka and had been forced by the LTTE to assist them with his boat; and that his son had briefly been detained by the authorities.

14    On the basis of country information, the Reviewer accepted that, upon his return to Sri Lanka, the first respondent “would be likely to undergo scrutiny by the Sri Lankan authorities to determine whether he represents a security risk” and that the authorities may, either at the airport or subsequently, become aware of his brothers’ history, that he lived in LTTE-controlled areas and was forced to assist them, and that he fled Sri Lanka to seek asylum abroad. The Reviewer also accepted that the authorities may wish to question the first respondent as to his knowledge of the location of hidden LTTE “caches of materials”.

15    Nonetheless, the Reviewer did not accept that there was a real chance that the first respondent would be persecuted on the basis of his Tamil ethnicity or imputed political opinion. He regarded as “determinative” the fact that the first respondent had never been an LTTE fighter or member (or so accused by the authorities), or detained. The Reviewer found that the first respondent having assisted the LTTE with his boat, the death of his brothers, and the interrogation of his son, would not lead the authorities to see him as an active LTTE supporter.

16    The Reviewer considered the first respondent’s fear that the authorities might consider that he had specific knowledge of hidden LTTE weapons and supplies and found that he would not be considered to have any such knowledge. He also found that the first respondent’s fear of torture was not well-founded, given “his very minor role in the transport of goods, his non-involvement in their final destination, and his not being an active LTTE member or fighter”.

17    As to the first respondent’s claim for protection on the basis of his Tamil ethnicity, the Reviewer found that there was no evidence to suggest that any discrimination that the first respondent may suffer in the future would rise to the level of persecution.

18    The Reviewer considered the first respondent’s fear that pro-government paramilitary groups would inform the authorities of the fact of his having assisted the LTTE, and found that the authorities would be aware of the forced assistance demanded of the Tamil population in LTTE-controlled areas and that such assistance did not, necessarily, point to an individual’s allegiance to the LTTE. In reaching that conclusion, the Reviewer had regard to the first respondent’s own evidence that people with boats were regularly asked to assist the LTTE.

19    The Reviewer accepted independent country information, such as the July 2010 report of the United Nations High Commissioner for Refugees (UNHCR), which indicated that security conditions in Sri Lanka had improved since the end of the civil war and that the government’s focus was on people with “potential risk profiles”, as listed in that report. One such risk profile was described as “[p]ersons suspected of having links with the [LTTE]”. Importantly, the Reviewer found that the first respondent did not have a risk profile or in other words, that he was not a person suspected of having links with the LTTE and that, consequently, there was not a real chance that he would suffer serious harm at the hands of the authorities upon his arrival in Sri Lanka or thereafter.

20    The Reviewer concluded that there was not a real chance that the first respondent would suffer serious harm for a Convention reason if he were to return to Sri Lanka and recommended that he not be recognised as a person to whom Australia owes protection obligations.

Proceedings before the Federal Magistrate

21    On 24 August 2011, the first respondent applied for judicial review of the Reviewer’s recommendation. An amended application was filed on 9 December 2011 which advanced the following grounds of appeal:

1.    The second respondent fell into jurisdictional error by failing to consider one of the applicant’s claims.

2.    The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error.

3.    The second respondent fell into jurisdictional error by:

(i)    making a finding for which there was no evidence; and/or

(ii)    by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.

4.    The second respondent fell into jurisdictional error by failing to have regard to all relevant material.

5.    The second respondent fell into jurisdictional error by:

(i)    making a finding for which there was no evidence; and/or

(ii)    by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.

6.    The second respondent fell into jurisdictional error by failing to consider one of the applicant’s claims.

7.    The second respondent fell into jurisdictional error by failing to have regard to all relevant material.

8.    The second respondent fell into jurisdictional error by failing to consider one of the applicant’s claims.

9.    The second respondent fell into jurisdictional error by failing to have regard to all relevant material.

22    Ground 2 was not pressed before the Federal Magistrate.

23    His Honour held that the Reviewer had fallen into error when considering the first respondent’s claims of a fear of harm at the hands of the Sri Lankan authorities by reason of being suspected of being an LTTE supporter.

24    He characterised the error variously as a failure to address an integer of the first respondent’s claims; a finding for which there was no evidence; a finding which was illogical or irrational; or a failure to have regard to relevant evidence. However, at [34] of his reasons his Honour identified the error of law to be that, by focusing upon outcome and not process, the Reviewer had asked a wrong question.

25    His Honour, in reaching this conclusion, said at [30], that the Reviewer:

needed to consider whether that process of detention and interrogation would expose the applicant to risk of serious harm amounting to persecution, having regard to the country information available to him about the arbitrary nature of detentions occurring, of human rights abuse during detention and interrogation and of the impunity of those responsible… The Reviewer could not, however, assume that the process of interrogation would be as benign as that which the Reviewer himself had employed.

26    The Reviewer in his SOR at [45] included relevant country information as follows:

45.    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".( UK Foreign and Commonwealth Office 2009, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009, August, pp. 818.). The UN High Commissioner for Refugees has expressed no concerns about the treatment of Tamil returnees at Colombo airport (ibid. p. 9). Asked about this issue by the UK Foreign and Commonwealth Office 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".

27    The Reviewer, in his SOR at [59] stated:

However, given the fact that the claimant was not an active LTTE member or fighter would mean that the scrutiny on the part of the Sri Lankan authorities upon his return, as discussed at 45 above, would not constitute for him serious harm.

28    These findings are central to the submissions made in the appeal.

29    His Honour observed at [33] that the country information at [45] of the Reviewer’s SOR did not support the Reviewer’s finding at [59], as it “only related to the general process of interviewing returning asylum seekers and stated that those suspected of having involvement with the LTTE would be taken away for further questioning”.

30    In his Honour’s view, the Reviewer had made an error of law by assuming that the first respondent would be able to persuade the Sri Lankan authorities that he was not a member or supporter of the LTTE without being subjected to serious harm amounting to persecution for Convention related reasons: SZQPA v Minister for Immigration [2012] FMCA 123 at [29], [30], [33]. He concluded at [34] that the Reviewer focussed on the outcome of the likely interrogation of the first respondent rather than what would happen to the first respondent during his interrogation. This the Federal Magistrate described as the “process”.

The appeal proceedings

31    The appellant’s notice of appeal advanced the following ground with particulars:

1.    Federal Magistrate Driver erred in holding, at [16], [29] and [34], that the second respondent fell into (jurisdictional) error in considering the first respondent’s claims to fear harm at the hands of the Sri Lankan authorities by reason of being suspected of being a supporter of the LTTE.

Particulars

(a)    Contrary to his Honour’s findings at [29], the second respondent was not required to consider whether the process of questioning of the first respondent upon his arrival in Sri Lanka would expose him to a risk of serious harm amounting to persecution.

(b)    In any event, the second respondent, at [59] and [65] of his statement of reasons, considered, and made findings in relation to, whether the process of questioning of the first respondent upon his arrival in Sri Lanka would expose him to a risk of serious harm amounting to persecution, and his Honour erred in failing so to find.

(c)    His Honour’s findings at [29], [30], and [33] proceeded upon the following incorrect assumptions:

(i)    that the first respondent was a person suspected by the authorities of having an involvement with the LTTE and would need to persuade them otherwise;

(ii)    that the first respondent had a ‘risk profile’;

(iii)    that the first respondent would be detained on his return to Sri Lanka;

(iv)    that the independent country information before the second respondent suggested that:

(A)    every failed asylum seeker returning to Sri Lanka would be suspected of being a member of, or haing an involvement with, the LTTE, or

(B)    those failed asylum seekers so suspected would be subjected to serious harm amounting to persecution at the hands of the authorities in order to determine whether they are members of, or have an involvement with, the LTTE.

32    The first respondent filed a notice of contention which advanced the following grounds:

1.    Mr Witton, the Independent Merits Reviewer failed to make a recommendation according to law by failing to consider an integer of SZQPA’s claim.

Particulars

a.    SZQPA claimed to have had some general involvement with the Liberated Tigers of Tamil Eelam (LTTE), in particular, by providing assistance to the LTTE war effort.

b.    SZQPA claimed to have a well-founded fear of persecution on the basis of that general involvement.

c.     There was evidence that supported SZQPA's claim he might be persecuted on the basis of involvement with, or support of, the LTTE generally.

d.     Mr Witton found the Sri Lankan authorities would not consider SZQPA to be an active member, fighter or supporter of the LTTE.

e.     Mr Witton failed to make any finding as to whether the Sri Lankan authorities would consider SZQPA to have had some involvement with, or to have supported, the LTTE generally.

f.     In the premises, Mr Witton failed to consider SZQPA's claimed fear of persecution on the basis of involvement with, or support of, the LTTE generally.

2.    Mr Witton failed to make a recommendation according to law by failing to consider an integer of SZQPA’s claim.

Particulars

a.    SZQPA claimed that, if he were forcibly returned to Sri Lanka, he would be a member of the social group of "failed asylum seekers returning from a western country".

b.     Mr Witton failed to consider whether the group "failed asylum seekers returning from a western country" constituted a particular social group for Convention purposes.

c.     Mr Witton failed to consider whether SZQPA was a member of the particular social group "failed asylum seekers returning from a western country".

d.     Mr Witton failed to consider whether SZQPA had a well-founded fear of persecution due to his membership of the particular social group "failed asylum seekers returning from a western country".

33    Ground 2 of the Notice of Contention was not pressed at the hearing of the appeal.

34    There are two issues in this appeal, the first of which arises from the Minister’s notice of appeal and the second from the first respondent’s notice of contention. They are:

(a)    whether the Reviewer asked himself a “wrong question” in considering the first respondent’s claims to fear harm at the hands of Sri Lankan authorities by reason of being suspected of being a supporter of the LTTE; and

(b)    whether the Reviewer failed to consider an integer of the first respondent’s claims, said to be that he had a well-founded fear of persecution by reason of his general involvement with the LTTE.

35    The appellant submits that contrary to his Honour’s views at [29] and [34], the Reviewer’s finding at [59] of his SOR revealed no such error. The appellant says that there are two reasons for this.

36    First, the appellant submits that the first respondent did not claim, whether in his entry interview, RSA interview, written submission to the Reviewer, or at the hearing before the Reviewer, that the process of him being questioned on arrival in Sri Lanka would subject him to a risk of persecution for Convention reasons independent of his claim to fear persecution by reason of his being suspected of having knowledge of the location of LTTE weapons and other supplies. The latter claim was raised during the hearing before the Reviewer and was considered, and rejected, at [58] of his SOR.

37    I do not accept this submission.

38    The relevant claims of the first respondent are set out in the following paragraphs from the Reviewer’s SOR:

15.     The reviewer asked the claimant why he feared to return to Sri Lanka. The claimant stated that he feared he would, on return to Sri Lanka, be considered by the authorities and their paramilitary supporters to be a person supportive of the LTTE through his family’s, and specifically his brothers’, LTTE connections, and through having been forced by the LTTE to use his boat to unload supplies from ships.

16.     He confirmed that he had lost four brothers in the conflict, two of whom had been "tricked" into supporting the LTTE and had been subsequently killed, and two others who had been taken by the Sri Lankan Army (SLA) and had never been heard of since.

17.     He said that he had also had the personal tragedy of losing his wife and three children in the 2004 tsunami. He said that following the tsunami he had been placed in a camp for tsunami survivors. He said that at that time, the army was looking for him because they had information about his family. He said that he was advised by his relatives to leave the army controlled areas and so he went to one of the centres run by voluntary organisations in Marhalam, but then the army captured that centre as well, He said he then left that area. His children went to Jaffna and he went to Mannar in May 2009 where he came under the protection of a Muslim man who was employing people. This man would keep his employees secluded on a small island.

18.     He said that the SLA were questioning people in the area and he got "panicky" and his Muslim employer advised him to flee the country. The Muslim man told the claimant about a boat that was leaving Sri Lanka. The claimant said the Muslim man told him to sell his boat and nets to pay for the journey and he departed and arrived in Australia in April 2010.

19.     He said that his "association" with the LTTE had stemmed both from his four brothers having been involved and killed in the conflict, and because when he worked as a fisherman for many years with his own boat, he had, like many other people with boats, been forced by the LTTE to use their boats to unload LTTE supplies that came by sea to where he lived. He said his role was well known to people and would be known to the paramilitary groups that inform the authorities. He said that he had performed this role from the "Indian army peace keeping period" (i.e. 1987 to 1990) until the tsunami in 2004, and then again for a while after that.

20.     He said that his role in having helped the LTTE with his boat was still causing him problems since in certain areas, the SLA still fears that LTTE guns and supplies had been stored and they will want to question the claimant to help find those locations. He said that his son was recently taken in for questioning about this. He tabled a letter the claimant had written on 7 January 2011 addressed to the UN [presumably he meant the Sri Lankan] Human Rights Commission in Vavuniya. The letter was translated by the interpreter and the letter, headed "Regarding abduction" stated that his son, Nixon, 25 years old, had been taken from his residence by an Army intelligence unit at 9 am on 2.1.2011. He has been questioned for almost 24 hours, subjected to severe interrogation and later released with a warning that he should not leave the area as he might be required for further questioning, The claimant stated that he was worried about his son's safety.

21.     He said that his son had in fact gone to the "UN" (Human Rights) office and reported that "intelligence" had threatened him not to tell anyone he had been questioned. He had told the office he had been questioned regarding his father.

22.     The claimant said that he did not know the location of any such hidden LTTE caches. However, he feared he would be tortured to try to have him reveal such information.

23.    He agreed that fisherman had to help unload LTTE supplies but that he had been particularly "affected" because other people had other ways of helping the LTTE and he only had his boat. He agreed that other people with boats were helping the LTTE but he said the fact that he had had four LTTE-associated brothers killed and because he came from a LTTE area, he was more "involved". He said in his area there were about 20 to 25 boats used by the LTTE. He was asked whether the other boat owners would also be asked about the location of any such hidden material and he said that "Because we were living in a LTTE control area, their suspicion is greater".

. . .

37.    The representative stated that the fact that his son was recently detained is supportive of the applicant’s claim there is still interest in his whereabouts.

39    It is plain enough in context that the first respondent was describing his fear, were he to return to Sri Lanka, of being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.

40    Additionally, he claimed to fear serious harm for a Convention reason which would expose him to torture or other serious harm concerning suspicion that he may have knowledge of the location of LTTE weapons and other supplies.

41    As the appellant puts it, this was the first respondent’s only articulated claim of fear of torture during interrogation.

42    It is artificial to attempt to divide up the bases of his fears as though one was dealing with a pleading point. The facts are a matrix; a combination of interrelated facts and it is unhelpful to attempt to divide them up in the way the appellant seeks to do. The Reviewer, as I mentioned earlier, accepted that upon his return to Sri Lanka the first respondent would be likely to undergo scrutiny by the Sri Lankan authorities to determine whether he represents a “security risk”. It cannot be doubted that a significant element of such scrutiny would involve the detention and interrogation of the first respondent by Sri Lankan authorities whether by the police, the State Intelligence Service or the Terrorist Investigation Department. The Reviewer also accepted that the Sri Lankan authorities may wish to question the first respondent as to whether he has any knowledge of the location of the LTTE’s hidden caches of materials.

43    I reject the submission that there was no expressly articulated claim made by the first respondent which required the Reviewer to consider whether the first respondent would be subjected to Convention related persecution during a process of questioning by the Sri Lankan authorities. This was at the very core of the first respondent’s claimed fears.

44    The conclusion of the Federal Magistrate at [29] of his reasons which concerned the reasons of the Reviewer in his SOR at [59] was that he:

focus[ed] on the likely outcome of the possible detention and interrogation of the [first respondent] on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role.

45    I agree with those conclusions. I also agree with the conclusion of the Federal Magistrate at [34] that in effect the Reviewer asked himself the wrong question, namely, whether the first respondent would be at risk of serious harm from State authorities assuming he was not an active member of the LTTE. The question he should have asked in light of the claims made by the first respondent and the country information which he had was whether he was at risk of serious harm from State authorities by reason of his imputed political opinion if he was “suspected” of having links or an association with the LTTE.

46    Second, the appellant submits that even if the claim did arise clearly or squarely on the material before the Reviewer, he considered the claim, and made findings in relation to that claim at [59] and [65] of his SOR.

47    I will again, for ease of reference repeat the country information accepted by the Reviewer set out at SOR [45] relevant to the finding at SOR [59] as follows:

Asked about this issue by the UK Foreign and Commonwealth Office in August 2009 an officer of the Colombo office of the 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 [the Criminal Investigations Department]. 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”.

48    The appellant submits that there was nothing in this material to suggest that returnees are subjected to Convention related persecution during the “quick and ... non-problematic” interview process, or that all returnees are subjected to serious harm amounting to persecution in order to determine the extent of their involvement, if any, with the LTTE.

49    The appellant further submits there is nothing in this evidence to suggest that a returnee who is suspected of involvement with the LTTE would be subjected to persecution, within the meaning of s 91R of the Act, by the authorities to determine whether he or she is, in fact, a member of, or has an involvement with, the LTTE. That is, “further questioning ... by the police” cannot amount to serious harm, as understood in s 91R. Moreover, the appellant submits that in any event, whether or not it does so is an academic exercise, in the light of the Reviewer’s finding at [65], that the first respondent “does not have a risk profile such that there is a real chance he would suffer serious harm at the hands of the authorities upon arrival or subsequently”.

50    The appellant makes the following further submissions:

(1)    The effect of the Reviewer’s findings at [59], [60] and [65] is that the first respondent was not somebody who would be suspected of having an involvement with the LTTE and would not, contrary to his Honour’s finding at [33], be expected to be interrogated by the Sri Lankan police.

(2)    It necessarily follows that, as somebody not so suspected, the first respondent would not be required to convince the authorities that he was not an LTTE member or supporter, and would not, as the Reviewer found at [59] and [65], be subjected to Convention related persecution at the hands of the authorities upon arrival or thereafter.

(3)    The initial suspicion on the part of the authorities would be absent. To assume otherwise, as his Honour did at [29], [30] and [33] of his reasons for judgment, as the appellant puts it, not only overlooks, but contradicts, the Reviewer’s findings at [59], [60] and [65].

(4)    The Reviewer did not make a finding that the first respondent had a risk profile. He also did not make a finding that the first respondent would be detained upon his arrival in Sri Lanka.

(5)    Although the independent country information referred to in the second sentence of [30] of his Honour’s reasons might suggest that some Sri Lankans could be detained arbitrarily and subjected to gross violations of their human rights, the choice of, and weight to be given to, such information was a matter solely for the Reviewer: cf NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13].

(6)    The Reviewer’s finding at [59] (the effect of which, as noted above, was the same as that of the finding at [65]) was one in respect of the process of questioning which the first respondent, as a failed asylum seeker, would be required to undergo upon his return to Sri Lanka. To say, as the Reviewer did, that the first respondent would not sustain serious harm during that process is to express a view as to the likely extent of any harm caused thereby.

(7)    Paragraph 59 of the Reviewer’s reasons must be read in the context of his SOR as a whole, particularly his findings at [60] and [65] and the evidentiary bases for these. Not to read [59] in this way would undermine the well-established principle that, in reading an administrative decision-maker’s statement of reasons, “the court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole”: Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708; Roser v Immigration Review Tribunal (1991) 25 ALD 443 at 449; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.

51    The approach of the appellant suffers, in my opinion, from the same vice as that which infected the reasoning of the Reviewer.

52    The appellant assumes as a starting point that during an interrogation on his return to Sri Lanka whether by the CID or police or some other government agency, the first respondent will be regarded as someone who was not “an active member or supporter of the LTTE”.

53    That seems to me to be the wrong starting point. It contains a false premise. The starting point is whether the Sri Lankan authorities would suspect that he had links or an association with the LTTE. Indeed that is the way that the first respondent described his fears as summarised by the Reviewer at SOR [15] set out above. I will repeat here for convenience the relevant part:

The claimant stated that he feared he would, on return to Sri Lanka, be considered by the authorities … to be a person supportive of the LTTE through his family’s and specifically his brothers’, LTTE connections, and through having been forced by the LTTE to use his boat to unload supplies from ships. (Emphasis added.)

54    Had the Reviewer asked himself that question I think, on the material before him, that he would have concluded that the authorities would have held such suspicions. I have already mentioned it is significant that the appellant escaped from Sri Lanka for the very reason that the Sri Lankan Army was looking for him and that his young son was detained and arrested during which time he was asked as to the first respondent’s whereabouts.

55    The reports in the Country Information of torture of detainees merely suspected of supporting the LTTE are widespread. I set out part of these by way of illustration:

US Department of State

2010 Human Rights Report – Sri Lanka

The government and its agents continued to be responsible for serious human rights problems. Security forces committed arbitrary and unlawful killings, although the number of extrajudicial killings declined. Disappearances continued to be a problem, although the total also declined. Many independent observers cited a continued climate of fear among minority populations, in large part based on past incidents. Security forces tortured and abused detainees; poor prison conditions remained a problem; and authorities arbitrarily arrested and detained citizens. Repercussions of the nearly 30-year war against the Liberation Tigers of Tamil Eelam (LTTE) continued to have an effect on human rights, despite the defeat of the LTTE in May 2009. In an effort to prevent any violent separatist resurgence, the government continued to search for and detain persons it suspected of being LTTE sympathizers or operatives. Official impunity was a problem; there were no public indications or reports that civilian or military courts convicted any military or police members for human rights abuses.

. . .

a.    Arbitrary or Unlawful Deprivation of Life

There were reports that the government or its agents committed arbitrary or unlawful killings, but reliable statistics on such killings by the government or its paramilitary allies were difficult to obtain because past complainants were killed and families feared reprisals if they filed complaints.

Among these arbitrary and unlawful killings, a number of suspects detained by police or other security forces died under questionable circumstances.

. . .

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

. . .

Civil society groups and former prisoners reported on several torture cases. For example, former detainees of the Terrorist Investigation Division (TID) at Boosa Prison in Galle confirmed reports of torture methods used there. These included beatings, often with cricket bats, iron bars, or rubber hoses filled with sand; electric shock; suspending individuals by the wrists or feet in contorted positions; abrading knees across rough cement; burning with metal objects and cigarettes; genital abuse; blows to the ears; asphyxiation with plastic bags containing chilli pepper mixed with gasoline; and near-drowning. Detainees reported broken bones and other serious injuries as a result of their mistreatment.

In the east and the north, military intelligence and other security personnel, sometimes working with armed paramilitaries, carried out documented and undocumented detentions of civilians suspected of LTTE connections. The detentions reportedly were followed by interrogations that frequently included torture. …There were also previous reports of secret government facilities where suspected LTTE sympathizers were taken, tortured, and often killed. (Emphasis added).

Amnesty International Report 2011

The State of the World’s Human Rights

SRI LANKA

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

The Sri Lankan government failed to effectively address impunity for past human rights violations, and continued to subject people to enforced disappearances and torture and other ill-treatment.

. . .

Arbitrary arrest and detentions

The Sri Lankan government continued to rely on the Prevention of Terrorism Act (PTA) and emergency regulations that grant the authorities broad powers to arrest and detain suspects and to circumvent normal procedural safeguards against arbitrary arrest and detention.

…

Thousands of people with alleged LTTE links were detained without charge or trial for “rehabilitation” or investigation. About 6,000 of more than 11,000 people arbitrarily detained in 2009 for “rehabilitation” remained in detention camps without access to lawyers, courts or the ICRC … Hundreds more were held without charge in police lock-ups and southern prisons under the PTA and emergency regulations; some had been detained for years. Most of the detainees were Tamil; some were Sinhalese.

. . .

Torture and other ill-treatment

Police and army personnel continued to torture or otherwise ill-treat detainees. Victims included detained Tamils suspected of links to the LTTE and individuals arrested for suspected “ordinary” criminal offences. Some people died in custody after being tortured by police. (Emphasis added.)

56    It may be seen that these reports largely concern ill-treatment of Tamils merely suspected of links with the LTTE. The first respondent is a Tamil; he comes from the north of Sri Lanka and indisputably had links with the LTTE even if he described them as involuntary.

57    It is also instructive to read the country information relevant to what awaits returnees to Sri Lanka which was set out by the Reviewer at [46]-[48] of his SOR. This information sits in the same context as that found in [45] and to which I have referred.

58    The Reviewer’s SOR also contained relevant Country Information as follows:

46.    In August 2009 the UK Foreign and Commonwealth Office undertook a substantial survey of the views of a number of commentators on the situation at Colombo airport with regard to the manner in which Tamil returnees are processed. The mission consulted with representatives from the Sri Lankan government, UNHCR, human rights groups, other western embassies, and a member of the opposition United National Party (UNP), Mano Ganesan MP. The survey reported as follows:

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 wetfingerprinted. 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.

[UK Foreign and Commonwealth Office 2009, Report of Information Gathering Visit to Colombo, Sri Lanka 23-29 August 2009, August, p.5.].

47.     However, there is evidence of a continuing level of paranoia on the part of the Sri Lankan government with regard to asylum seekers. For example, The Age on January 22, 2010 reported in an article headed “Not All Sri Lankan Refugees ‘Deserving’”:

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.” (http://www.theage.com.au/national/not-all-sri-lankan-refugees-deserving-20100121-mo9i.html)

48.     Similarly , the ABC News, reported that the Sri Lankan authorities stated, with respect of a boat of asylum seekers that had arrived off the Canadian coast, that they were part of a smuggling operation by the LTTE and that the asylum seekers “could be linked to the LTTE”, (“Tamil asylum boat docks in Canada”, (14 August 2010) (http://www.abc.net.au/news/stories/2010/08/14/2982913.htm)

59    I consider it important that in reaching the conclusion that the Reviewer had asked himself the wrong question, the Federal Magistrate relied on the Reviewer’s own findings. At [30] for example, his Honour stated:

The Reviewer was entitled to conclude on the basis of the material before him, that ultimately the applicant would be found not to constitute a risk to Sri Lanka’s security and would presumably be released. However, having accepted that the applicant’s four brothers had been killed because of their imputed membership or association of the LTTE, that the applicant had provided assistance to the LTTE (of whatever kind) and that the applicant would be detained and interrogated upon return to Sri Lanka the Reviewer needed to consider whether that process of detention and interrogation would expose the applicant to a risk of serious harm amounting to persecution, having regard to the country information available to him about the arbitrary nature of detentions occurring, of human rights abuses during detention and interrogation and of the impunity of those responsible. (Emphasis added.)

60    I agree with the analysis of the Federal Magistrate found at [33] of his Honour’s written reasons:

That paragraph [[45] of the Reviewer’s reasons] only related to the general process of interviewing returning asylum seekers and stated that those suspected of having involvement with the LTTE would be taken away for further questioning. The applicant had been involved with the LTTE (albeit at a low level although the involvement of the applicant’s four brothers who have been killed or presumed killed by the Sri Lankan authorities would increase the applicant’s risk profile) and could therefore expect to be interrogated by the Sri Lankan police so that the authorities could satisfy themselves that, unlike his four brothers, the applicant did not represent a security risk. The applicant might well be able to persuade the authorities that he did not represent a risk, but the Reviewer needed to consider what might happen prior to that point being reached. (Emphasis added.)

61    Whilst it may be correct, although I doubt it, that the first respondent, when interviewed by the Reviewer, had no risk profile, I do not think there can be any room to doubt that upon arrival in Sri Lanka he would assume a risk profile as a person suspected of having links with the LTTE. He indisputably fits a number of the relevant criteria identified in the report of the UK Foreign and Commonwealth Office set out in the Reviewer’s SOR at [46] and above at [58]. He had connections with the LTTE in the way that I have explained. The army in Sri Lanka wanted him for questioning concerning that connection. He had departed illegally from Sri Lanka as a result. Sri Lanka’s Foreign Minister has made it clear that the Sri Lankan government “wants access” to those such as the first respondent.

Conclusion

62    The appeal for these reasons will be dismissed with costs. I will hear the parties as to whether any ancillary orders ought be made.

Associate:

Dated:    20 September 2012