FEDERAL COURT OF AUSTRALIA

SZSZW v Minister for Immigration and Border Protection [2015]

FCA 562

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The first respondent pay the appellant’s costs in the Federal Court of Australia as assessed or agreed.

3.    Set aside the orders made by the Federal Circuit Court on 26 February 2015 and in lieu thereof:

(a)    Order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent made on 30 May 2013.

(b)    Order absolute in the first instance for a writ of mandamus directed to the second respondent to determine the appellant’s application for review according to law.

(c)    The first respondent to pay the appellant’s costs in the Federal Circuit Court.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an appeal from a decision by the Federal Circuit Court (the Court below) dismissing the application for judicial review of a decision by the Refugee Review Tribunal (the Tribunal). In its decision made on 30 May 2013, the Tribunal affirmed the decision of the first respondent’s delegate (the delegate) not to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2    In essence the appellant contends that the Court below erred in failing to hold that the Tribunal had failed to consider three claims or integers of claims made by the appellant to fear persecution if returned to his country of nationality, Sri Lanka. Three grounds are identified in the notice of appeal, namely:

1.    The Court Below erred in finding that the second respondent (the Tribunal) lawfully considered the appellant’s claim that the appellant faced persecution during the process of interrogation at Colombo Airport upon his return to Sri Lanka.

2.    The Court Below erred in finding that the Tribunal lawfully considered a claim made on the appellant’s behalf by his migration agent, that being that the appellant was in danger of being detained and persecuted at the airport upon his return to Sri Lanka as a failed asylum seeker because of visible scarring on his body.

3.    The Court Below erred in finding that the Tribunal addressed a claim made in submissions to it that the applellant [sic] may be the victim of extortion at the airport upon his return to Sri Lanka.

3    These grounds essentially mirror the grounds of judicial review before the Court below.

4    For the reasons given below, I would allow the appeal on the third ground but do not consider that grounds 1 or 2 are made out.

2.    BACKGROUND

2.1    The visa application and decision by the delegate

5    The appellant claimed before the Tribunal to fear harm if returned to Sri Lanka by reason of his Tamil ethnicity, his suspected links with the Liberation Tigers of Tamil Eelam (LTTE), his return as a failed asylum seeker, and these factors cumulatively. The Tribunal explained that he claimed to be affected “by a number of risk factors which, singularly and cumulatively, heighten his risks of harm in the reasonably foreseeable future.”

2.2    The Tribunal’s decision

6    The Tribunal accepted that the appellant was of Tamil ethnicity. It also accepted much of the appellant’s evidence about past events including that:

a)    his sister was forcibly recruited to the LTTE and killed;

b)    his brother was forcibly detained by the Sri Lankan authorities and questioned in or about 2006 for suspected LTTE involvement;

c)    the appellant acquired wounds in 2007 and 2009 from shrapnel/a bullet when going about his daily life and he retains visible scars from those wounds;

d)    his family had relocated to an LTTE controlled area during the war; and

e)    during his stay at a Sri Lankan Army (SLA) camp in 2009, the appellant was strip-searched for weapons and questioned by the SLA about his scars and his family links to the LTTE, his family was required to identify whether they are a family with any LTTE links, and his family willingly disclosed to the SLA on their entry into the camp that the appellant’s sister had died during her forced recruitment to the LTTE.

7    The Tribunal also gave the appellant the benefit of the doubt in proceeding on the assumption that the authorities have inquired regarding his whereabouts since he left Sri Lanka.

8    However, the Tribunal was not satisfied that, when the appellant left Sri Lanka for Australia in late 2011, he had an adverse profile with the Sri Lankan authorities, or that any of his claims gave rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future (Tribunal reasons at [13] and [28]).

9    The Tribunal found that there was no evidence that the appellant, or any of his family members, have maintained an adverse profile or have experienced any harm in Sri Lanka as a result of any imputed LTTE connections. In this regard, the Tribunal accepted among other things the appellant’s evidence that the only consequence of disclosing that the death of the appellant’s sister occurred in the course of her recruitment to the LTTE was that the family were questioned about whether his sister had willingly joined the LTTE or was forced. The Tribunal also had regard to the absence of any demonstrated adverse attention directed to the family since their release from the SLA camp in 2009.

10    The Tribunal also accepted that, as a failed asylum seeker, the appellant was likely to go through a process in Sri Lanka which will bring him into contact with the Sri Lankan authorities upon his return to that country. However, it was not satisfied on the evidence that being a returned failed asylum seeker imputes him with any particular political opinion, even when considered cumulatively with his personal and family profile; nor that being a returned and undocumented Tamil failed asylum seeker, singularly or in combination with his personal and family profile, would give rise to a real chance of serious harm (Tribunal reasons at [37] and [48] respectively).

11    For these reasons the Tribunal was not satisfied that the appellant met the refugee criterion under s 36(2)(a) of the Act (Tribunal reasons at [48] and [51]). Nor, for the same reasons, was the Tribunal satisfied that there were substantial grounds for believing that the appellant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under section 36(2)(aa) of the Act (Tribunal reasons at [49]-[50] and [52]).

3.    CONSIDERATION

3.1    Relevant principles: claims to fear persecution for a Refugees Convention reason

12    In conducting its review, the Tribunal is required to consider whether the applicant is “… a non-citizen in Australia in respect of whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol” (ss 36(2)(a) and 415 of the Act). This requires, subject to various qualifications in the Act, that the Tribunal be satisfied that the applicant is a refugee as defined in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Convention), namely, a person who (relevantly):

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…

(Emphasis added.)

13    If so satisfied, the Tribunal must grant the visa under s 65 of the Act. There was no issue between the parties as to the applicable principles by which the Tribunal was to undertake that task.

14    First, a determination of whether a (subjective) fear is (objectively) “well-founded” requires the Tribunal to assess what will occur in the future. A fear is “well-founded” when there is “a real substantial basis for it”, even though the chance of the fear eventuating is less than 50 per cent: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) at 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Conversely, a fear of persecution is not well-founded “if it is merely assumed or if it is mere speculation”: ibid.

15    Secondly, the requirement under s 414 of the Act to “review” the decision requires that the Tribunal consider the applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

16    Thirdly, as I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] in determining whether a claim has been made attracting the obligation to consider it:

A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]).

(Abbreviations omitted.)

17    In the fourth place, the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], “[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant...”.

18    Finally, as the Court below held at [48]-[49], in forming an opinion as to whether there is a real chance of persecution for a Convention reason, past events may assist in assessing what is likely to occur in the future. As the joint judgment held in Guo at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.” Thus, in the context of applying the definition of a refugee in the Convention, the joint judgment held at 575:

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

3.2    Ground three: alleged failure to consider fear of extortion if returned

3.2.1    The issue

19    There is no issue that the appellant fairly raised the claim (or “integer of the claim” as described by the Minister) to fear extortion if returned to Sri Lanka. Specifically in the migration agent’s written submissions to the Tribunal dated 27 February 2013, the agent submitted that:

Furthermore, in order to conclude such investigations at the airport, [the appellant] may be asked to pay a bribe. We submit that this would not be a legitimate fine, and may well amount to extortion. A March 2008 RRT Research response found that:

In fact rather than being supported on return, returning asylum seekers may instead be vulnerable to corrupt immigration officials or criminals. Hotham Mission has heard of at least two incidences wherein people returning were cornered into paying bribe money to immigration officials in order to pass through the airport unhindered. Abductions for ransom of wealthy business people are occurring nationwide, so people returning from overseas may be a target, as it will be assumed that they have money.

(Emphasis in the original, footnotes omitted.)

20    There was no suggestion by the Minister that the claim had not been fairly raised on the material before the Tribunal and therefore that there was no obligation upon the Tribunal to consider the claim.

21    Nor did the Minister dispute that extortion could amount to persecution as defined in s 91R of the Act provided that it involved sufficiently significant economic hardship. Furthermore, no issue was taken with the appellant’s submission that extortion, as opposed to bribery, may involve a threat of harm. The potential seriousness of that harm was said, by the appellant, to be supported by the reference in the passage cited above to abduction. In this regard, subs 91R(1) and (2) defined “persecution” at the time of the Tribunal’s decision in the following terms:

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(Emphasis added.)

22    Nor was it in issue between the parties that the Tribunal did not at any point expressly consider the extortion claim. However, the Tribunal concluded at [48] of its reasons that:

On balance, while the Tribunal accepts that the applicant will, as a returnee to Sri Lanka, go through a process which will bring him into contact with the Sri Lankan authorities, the Tribunal is not satisfied, on the evidence before it, that being a returned Tamil failed asylum seeker who is also undocumented, singularly or in combination with what is accepted of the balance of the applicant’s personal and family profile, would give rise to differential treatment for a Convention reason, or that the process he faces on returning to Sri Lanka as a failed asylum seeker involves, amounts to, reveals or gives rise to a real chance of serious harm, either at the airport in Sri Lanka or on the applicant’s return to his home …, or at any point in the reasonably foreseeable future in Sri Lanka. The Tribunal notes the UK Home Office observations that two of thirteen reported returnees “alleged” that they suffered mistreatment, however the evidence before it is unclear as to the veracity of testing of such allegations as well as the reason or reasons for any mistreatment suffered in the alleged cases, making such alleged cases of little assistance in assessing the risk of harm faced by a returned Tamil failed asylum seeker in the applicant’s circumstances. On balance, based on the totality of the evidence before it, the Tribunal is not satisfied that the evidence reveals a real chance of persecution involving serious harm for the essential and significant reason of the applicant’s membership of a particular social group characterised by his return to Sri Lanka as a Tamil failed asylum seeker, either singularly or cumulatively, in the reasonably foreseeable future.

(Cross-references omitted.)

23    The Minister submitted below that, while the Tribunal did not specifically mention the matter of “extortion” in its reasons, the references to the written submissions put on behalf of the appellant in the Tribunal’s reasons, the country information referred to in them, and the link in the written submissions between those characteristics and what would likely happen at the airport, meant that the Tribunal acknowledged the matter of extortion, albeit in a general, but sufficient, way (reasons of the Court below at [60]). These submissions were accepted by the Court below which held that:

62.    ….The Tribunal’s reference to the written submissions, the specific reference to the characteristics of the risk profiles in those submissions, and, importantly, the link in those submissions, to what would likely happen to the applicant, who possessed some of these characteristics, at the airport (“may be asked to pay a bribe”), is a sufficient basis to say that the Tribunal considered the applicant’s claim as to extortion. Further, that it did so in a manner consistent with the extent of that claim, as it was put in the written submissions.

63.    The Tribunal did give “conscious consideration” to the applicant’s claim as required by the authorities. It is important to note the matter of the possible “bribe/extortion” was raised in the written submissions in the context of what may happen to the applicant at the airport on arrival. That is, in light of certain characteristics that he had, and how this heightened the risk profile.

64.    As stated above, the representative’s written submissions claimed the applicant had certain characteristics, and that these would lead to a heightened risk profile, and, as a result, the applicant would be detained for questioning at the airport, and during the questioning (see “…in order to conclude such investigation at the airport…” and he “may be asked to pay a bribe…”).

65.    When [48] is fairly read in context, therefore, the findings relating to what would occur at the airport, and the conclusion that this would not give rise to serious harm, includes the claims in the written submissions, and, relevantly, the possibility of the expectation of the payment of a bribe. The reference to “…a range of independent sources addressing the treatment of returnees to Sri Lanka, including failed asylum seekers” in [41], and that this range of sources was as presented in the representative’s submissions, therefore, on balance, includes an acknowledgment to the reference in those submissions to the independent country report, concerning the matter of bribery and extortion.

(Court book references omitted.)

3.2.2    Did the Tribunal fail to consider the extortion claim?

24    The Minister submitted that in determining whether the reasons disclosed a consideration of all of the claims and their integers, the process of interpreting the reasons should be approached in the following manner:

1.    The applicant bears the onus of proof in determining whether a piece of evidence has in fact been ignored by a Tribunal: MZYTS at [53]; SZSRS [Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67] at [27] and [43].

2.    The requirement on the Tribunal in s 430 of the Act to set out its findings on the questions of fact it considers to be material, together with the evidence and other material on which those findings were based, entitles the court to infer that any matter not mentioned in the reasons was not considered by the Tribunal to be material to its review: MZYTS at [49]; SZSRS at [33].

3.    However, while that inference is open, the fact that a matter is not referred to in the Tribunal's reasons does not necessarily mean the matter was not considered. The issue is whether the evidence omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material: SZSRS at [34]. Where a matter is particularly important to the applicant's claims or the way in which the Tribunal reasoned towards its conclusions, one would expect it to be mentioned in the reasons and its absence is highly indicative of it having been overlooked: ibid at [44].

25    No issue was taken with the propositions in paragraphs 1 and 2 above, nor that considerations such as those in paragraph 3 provide guidance in the task of interpreting a decision of the Tribunal. Nonetheless, ultimately the question involves a matter of commonsense and a realistic approach. As Allsop J held in Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] in summarising the High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2:

…a beneficial construction should be given to the way Tribunals… express themselves, and a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying.

Beneficial construction does not mean that the words are construed as meaning something other than what they, in a plain and commonsense way, must be intended to mean. It is the combing through of the reasons with a finely attuned antenna for error that is impermissible.

26    In submitting that it was properly to be inferred that the Tribunal had dealt with the claim, counsel for the Minister relied upon the following matters:

a)    the Tribunal’s reference to the written submissions where the claim was made at [41] of its reasons, notwithstanding that it did not expressly refer to the extortion claim;

b)    the consideration that, without more, the claim to fear extortion would not amount to a claim to fear persecution and therefore was not a matter which might have attracted the same level of consideration as a stronger claim; and

c)    the Tribunal’s consideration of the issue was absorbed into its findings on issues of greater generality, particularly in the context of the detailed and careful statement of reasons given by the Tribunal.

27    In support of his submission that the Tribunal’s reasons should be understood as having included consideration of the extortion claim, the Minister relied upon WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47] where the Court (French, Sackville and Hely JJ) held that:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

28    I do not, however, consider that this is a case where findings on a particular matter have been subsumed into findings of greater generality. The Tribunal’s reasons made no mention at all of the extortion claim. Nor, while detailed consideration is given to country information regarding the screening process through which the appellant is likely to be required to pass if returned to Sri Lanka, including questioning, detention, and the possibility of torture, no mention is made of extortion. Equally while the Tribunal’s reasons refer to the country information which included information about extortion claims, those parts of that material which deal with extortion claims are not quoted or referred to. In this regard, the Minister rightly did not submit that I should infer that the Tribunal had considered this aspect of the appellant’s claims because some of the materials referred to by the Tribunal included a consideration of corruption and extortion. Nor in that context do I consider that generalised references to the “process” which the appellant would face on arrival in Sri Lanka, if returned, in the conclusion at [48] of the Tribunal’s reasons are sufficient to suggest a consideration of the claim to fear extortion. In these circumstances, there is simply no foothold in the reasons, in my view, for an inference that there was an active consideration of the issue in accordance with the authorities referred to at [15]-[17] above. Notwithstanding the otherwise careful reasons prepared by the Tribunal, the only inference available is that the claim was overlooked. As Stone J held in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26], while the reasons of the Tribunal should be construed in a beneficial sense, this means only that they should not be over-zealously scrutinised with an eye attuned to error and “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.”

3.3    Ground two: alleged failure to consider the risks by reason of his scars in the context of dealing with the returned asylum seeker claims

29    The appellant claimed in his entry interview that he had received wounds in 2007 and 2009. That claim was repeated in his statement to the Department which accompanied his application for a protection visa where he stated, in support of his fear of being suspected of having links with the LTTE, that:

42.    My fear is increased by the fact that I carry two scars on my body. I know that people who carry scars are perceived to have been members of the LTTE. If I am detained by the forces and am stripped, they will see my scars and may as a result see me as a LTTE. I could be subject to detention, tortured and could even be killed.

43.    Often I have to work late at the shop. Then I would often experience more hardships at the checkpoints. They usually would conduct a full body check and interrogate me for about half an hour. They would as [sic] where I have been and would threaten me constantly.

30    In the post-hearing submissions from the appellant’s solicitor and migration agent, reference was also made to a UK report highlighting that one of the factors increasing the risk of torture if returned to Sri Lanka is scarring, namely:

In the 2012 UK Operational Guidance Note for Sri Lanka, which cites the English case of NA v United Kingdom ECHR (2008), the Court found that the following risk factors would increase the likelihood that someone would be detained at the airport:

1.    Tamil ethnicity

2.    Previous record as a suspected or actual LTTE member or supporter

…

7.    The presence of scarring

…

9.    Illegal departure from Sri Lanka

31    The Tribunal referred at [30] of its reasons to the appellant’s claim to face “a real chance of serious harm at the hands of the Sri Lankan authorities in connection with his imputed links to the LTTE, which he claims are imputed to him for the following reasons, singularly and cumulatively: his Tamil race; … having scars on his body;… and his application for asylum”. As earlier mentioned, the Tribunal also accepted that the scars existed, that they were the result of wounds inflicted in 2007 and 2009, and that the scars were visible. Specifically in the context of considering the claim generally to fear persecution by reason of imputed political opinion, the Tribunal found at [34] that:

Regarding his scars, the Tribunal accepts that the applicant has the scars claimed, however, as reasoned in paragraph 22 above, the applicant’s evidence indicates that he has been questioned by the Sri Lankan authorities in connection with these scars in the past and that no adverse consequences amounting to serious or significant harm flowed from the Sri Lankan authorities awareness of those scars. The applicant told the Tribunal that he explained to the Sri Lankan authorities the circumstances in which he acquired those scars. His evidence suggests to the Tribunal that his explanations have been accepted by the Sri Lankan authorities and that he has not been imputed with any particular political opinion in connection with those scars. The Tribunal is not satisfied, on the evidence before it, that the applicant’s scars, singularly or cumulatively, will impute him with any political opinion in support of or linked to the LTTE or opposed to the Sri Lankan Government in the reasonably foreseeable future, or they otherwise give rise to a real chance of serious harm in the reasonably foreseeable future.

32    The appellant submitted, however, that in this part of its reasons, the Tribunal was not considering the scars in the context of the returned asylum seeker claim but generally. When the Tribunal came to consider the returned asylum seeker claim and reach its conclusions at [48], the appellant submitted that there was no express consideration of that claim in the context of the added risks posed by the existence of his scars.

33    I do not accept that fairly read the Tribunal’s reasons suggest that it failed to consider the appellant’s failed asylum seeker claim having regard to the increased risk posed by his scars. As the Minister submitted, I should read the reasons as a whole and, in particular, bearing in mind the sequential order in which the Tribunal dealt with the various claims and their integers. Thus, having already referred in some detail to the scarring as a risk factor together with other factors and alone in the context of the general claim to fear persecution by reason of imputed political opinion, sensibly read I understand the reference at [48] of the Tribunal’s reasons to “personal and family profile” to include a consideration of the added risks posed by his scarring. I also accept the Minister’s submission that this inference is supported by the fact that the context where scarring as a risk factor had been considered in more detail earlier in the reasons was analogous in that the Tribunal had also found that, upon coming to the authorities’ attention, his explanation for his scars had been accepted and had not led the authorities to impute a political opinion to him sympathetic to the LTTE. In this regard, the Tribunal’s reasoning discloses a proper and unexceptional consideration of evidence as to what occurred in the past as a part of its assessment of what may occur in the future: see above at [18].

3.4    Ground one: alleged failure to consider fear of persecution by torture on arrival in the clearance process for entry in determining whether the appellant was a LTTE supporter

34    Finally, the appellant contends that the Tribunal omitted to deal with the question of whether the appellant had a well-founded fear of persecution from the Sri Lankan authorities in the process of their interrogation and consideration of whether he was a person of concern to the them. In this regard, the appellant relies upon the decision of SZQPA v Minister for Immigration & Anor [2012] FMCA 123 at [29] where Driver FM (as his Honour then was) held that the Reviewer had erred in focusing upon the likely “outcome” of the possible detention and interrogation of the applicant on return to Sri Lanka, rather than “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” (emphasis added). Equally here, the appellant contended that there was evidence supporting a claim that the interrogation itself could involve torture, which had not been considered by the Tribunal, relying upon a Human Rights Watch Report stating that arbitrary arrest and torture can occur on return to Sri Lanka.

35    It is true that, in considering whether the appellant had a fear of persecution on the grounds of imputed political opinion, no express consideration is given to the process to which the appellant may be subjected on his return in convincing the authorities that he was not an LTTE sympathiser. Specifically at [37] the Tribunal stated:

While the Tribunal accepts that, as a failed asylum seeker, the applicant will still go through a process in Sri Lanka which will bring him into contact with the Sri Lankan authorities, the Tribunal is not satisfied that being a returned failed Tamil asylum seeker imputes him with any particular political opinion, even when considered cumulatively with what is accepted of the balance of his personal and family profile in Sri Lanka. Nor is the Tribunal satisfied that the process he would go through as a failed asylum seeker in Sri Lanka would reveal him to have any actual or imputed sympathies towards the LTTE, despite his sister being known to have died as a forced recruit to the LTTE, and despite what is accepted of the balance of the applicant’s personal and family circumstances, as detailed in the balance of the Tribunal’s considerations.

36    However, the Minister submitted that it was properly to be inferred that the generalised finding at [48] in dealing with his failed asylum seeker claim as to the risks he might face at the airport if returned, embraced a consideration of the risks he might face in the process of determining whether he was a person of interest. I accept that submission. I note that this construction also receives some support from the consideration of country information at [45] of the Tribunal’s reasons, namely:

The Tribunal is mindful that a number of human rights groups have provided alternative information regarding the treatment of returnees to Sri Lanka, including failed Tamil asylum seekers, suggesting that they are at risk of serious or significant harm on their return for reason of having sought asylum abroad.10 The Tribunal also notes that similar views have been expressed by reputable organisations including Amnesty International, Human Rights Watch (HRW) and Freedom from Torture.

37    In this regard, footnote 10 to the penultimate sentence elaborated upon the risks of serious harm including torture immediately on return, stating that:

According to Tamils Against Genocide, “failed asylum seekers are at risk of persecution upon return simply by virtue of the fact that they sought asylum abroad and also because of imputed political opinion regarding involvement with or sympathy for the LTTE” The group’s May 2012 report on the treatment of failed asylum seekers cited reports from Human Rights Watch, the UK Home Office, Amnesty International, as well as media and other reporting, purportedly providing evidence that “failed asylum seekers are at a heightened risk of torture and arbitrary detention immediately upon return simply on the basis of their status as failed asylum seekers”: Tamils Against Genocide 2012, Treatment of Failed Asylum Seekers: An Overview of the Persecution Faced by Failed Asylum Seekers Returning to Sri Lanka, TamilNet, May

<http://www.tamilnet.com/img/publish/2012/05/Failed_Asylum_Seekers_SL_May_2012.pdf.>

(Emphasis added.)

38    It follows in my view that the appellant has not established that the Tribunal failed to consider his fear of persecution during the process by which the authorities may assess whether he is a person of interest.

4.    CONCLUSION

39    For the reasons set out above, the appeal is allowed with costs.

Associate:

Dated:    5 June 2015