CONSIDERATION
52 It is convenient to deal first with the contention that the Tribunal erred in finding that the appellant's claim to have been beaten by Sri Lankan authorities while at a market with his friends had not previously been raised.
53 The allegation was made in a context where, as the Tribunal noted, the appellant had claimed, in the course of his oral submissions before the Tribunal, to have suffered abuse in Sri Lanka. The Tribunal asked the appellant to provide details. It was in the context of that invitation that the appellant alleged that he had been beaten at a market while with his friends and that such beatings were a "common occurrence" (the market claim). The material relied upon by the appellant does not support the proposition that he raised this particular allegation in support of his application for a visa. Accordingly, the Tribunal did not err in finding that the market claim had not in fact been raised previously. The passage of the reasons relied upon by the appellant is clearly confined in its language to the market claim, made as it was in response to the Tribunal's invitation to him to provide details of a more generalised claim of abuse. The passage does not, in and of itself, support an inference that the Tribunal erroneously proceeded on the basis that the appellant had not made any other claim to have been beaten by the Sri Lankan authorities in 2002.
54 As I have mentioned, the 2002 incident was raised in the appellant's entry interview and further details of it were given in the letter of 27 April 2014. The Tribunal expressly referred to the letter and to the entry interview in its reasons. On a fair reading of the Tribunal's reasons as a whole, I am nonetheless satisfied that although the Tribunal made reference to the material in which the incident was recounted, it has not consciously engaged with the claim and has not made any findings concerning it. To the contrary, this express statement in the Tribunal's reasons clearly suggests that the Tribunal made an incorrect evaluation of the facts that the appellant had alleged (at [181]):
… he makes no claims to have come to the adverse attention of the authorities as an LTTE suspect, at any time through the conflict.
55 That statement is plainly an inaccurate evaluation of the facts upon which the appellant relied especially in connection with the Refugee Criterion and his alleged imputed political opinion. The facts asserted by the appellant in relation to the 2002 incident clearly amount to an allegation that he had in fact come to the attention of the Sri Lankan authorities as an LTTE suspect during the period of the conflict to which the Tribunal referred.
56 For the Minister it is argued that the inference should not be drawn that the Tribunal ignored the claim about the 2002 incident. It is submitted that the Tribunal's reasons support an inference that it had concluded the claimed events so significantly predated the 2007 incident that the claim was either subsumed in the generality of the Tribunal's other findings, or otherwise regarded by the Tribunal as unimportant. The Minister points to the Tribunal's unchallenged findings (based on country information) that the civil conflict in Sri Lanka ended in 2009 and that the appellant resided in an area situated a considerable distance from LTTE strongholds. It is further submitted that the Tribunal's rejection of more recent incidents was fairly based upon credibility findings open to it and that its focus remained, properly, on the situation in Sri Lanka as it affected Tamils after the conflict ended in 2009. In the context of a claim by a young Tamil man alleging risk of harm because of ethnicity and political opinion, the Minister submits, events prior to 2009 "would have been of far less relevance".
57 As a matter of principle, it is to be accepted that a claim may be implicitly dealt with at a greater level of generality, or otherwise rendered unnecessary to determine because of the significance of other findings: WAEE at [47]. However, a conclusion that a particular claim falls within those accepted principles should not be drawn in cases, such as the present, where the Tribunal has expressly stated that no claim of the relevant kind was made at all.
58 In the context of the appellant's claims as a whole, the question of whether the appellant had, in the course of the conflict, come to the attention of Sri Lankan authorities as a suspected LTTE sympathiser was a significant issue. It legitimately bore on the question of whether the 2007 incident had occurred as the appellant had claimed, and it was plainly relevant to the Tribunal's assessment of whether the appellant's claimed subjective fear of persecution was objectively well founded. If the claim concerning the 2002 incident was actively engaged with and accepted, it would legitimately weigh against the Tribunal's finding (made on the basis of country information) that the area in which the appellant resided was far from the heart of the conflict so as not to expose him to suspicion or harm.
59 It may be that if the Tribunal determined the claim it might have been open to it to reject the claim on the facts or otherwise to afford the incident little weight because of its distance in time from the more recent claimed incidents. But there is nothing in the reasons to suggest that the Tribunal engaged in any such process of reasoning. In light of the Tribunal's express statement extracted at [55] above, it should not be inferred that the Tribunal consciously engaged with and dealt with the claim, whether at a greater level of generality or at all.
60 It cannot be said that the outcome of the Tribunal's review could not have been different had it consciously engaged with and dealt with the appellant's claim concerning the 2002 incident, as it was obliged to do. It is to be borne in mind that the Tribunal accepted that the appellant's elbow was broken by naval officers in 2007, and yet the Tribunal did not consider the attack to have been as "intense" as the appellant had claimed, and, importantly, it did not accept that the attack was politically motivated. The Tribunal's diminution of the seriousness of the attack and its assessment of the motivations for it are both affected by its failure to engage with the appellant's claim to have previously been detained and beaten as an LTTE sympathiser. Moreover, had the Tribunal considered and determined the factual allegations concerning the 2002 incident, it may well have afforded less weight to country information suggesting that the area in which the appellant resided was removed geographically from LTTE strongholds and the area of the conflict. In short, it is not for the Minister to say that the 2002 incident was of little or no relevance: assessments of relevance and weight form an essential part of the Tribunal's statutory task which, for the reasons given, it has constructively failed to perform.
61 I am satisfied that the failure to engage with and determine the allegations concerning the 2002 incident constitutes a jurisdictional error in accordance with the authorities summarised earlier in these reasons. It matters not whether the allegation is conceived of as a "claim" or a "component of a claim" or otherwise labelled. As a matter of substance, the allegation was one that, if accepted, bore critically on the remaining issues the Tribunal was tasked to decide.
62 In his additional ground of appeal, the appellant contends that the Tribunal failed to apprehend that he had made a claim to have suffered harassment by Sri Lankan naval officers on multiple occasions. This ground should be rejected. Unlike the 2002 incident, the claim to have suffered "multiple harassments" by the Sri Lankan navy was expressly adverted to in the Tribunal's reasons. The Tribunal set out in its reasons the content of the appellant's statutory declaration. Viewed objectively, the 2007 incident was the most serious and specific of the claims of harassment by the Sri Lankan navy that the appellant had made. Whilst he had claimed that the harassing conduct was ongoing, the factual particulars given were, apart from the 2007 incident, sparse. The appellant's claim concerning the 2008 threat, although raised in the appellant's entry interview, was not advanced by the appellant before the Tribunal when asked to give examples of ongoing abuse beyond 2007.
63 It is true that in the latter part of the Tribunal's reasons the Tribunal refers to there being a "single" incident of harassment by the Sri Lankan navy, however that language is to be read in the context of the Tribunal having already made specific reference to the fact that the delegate had accepted the possibility that the appellant had also been questioned by the Sri Lankan naval authorities in 2010. Read fairly, the reasons of the Tribunal indicate that the 2007 incident was regarded by the Tribunal as the only claimed incident in which "serious harm" had in fact been inflicted on the appellant, allegedly by reason of his race. Having rejected the claim that the 2007 incident was motivated by a Convention reason, it was, I am satisfied, unnecessary for the Tribunal to consider whether the other claims of harassment (whether particularised or not) were similarly motivated. These conclusions are, however, somewhat academic as the Tribunal's reasoning in respect of the 2007 incident is affected by jurisdictional error in the manner I have explained. The orders of the primary judge should be set aside and, in substitution, orders made for the remittal of the matter to the Tribunal, differently constituted, so that the whole of the appellant's claims may be reconsidered in accordance with these reasons.
64 Before concluding, I should acknowledge that the appellant sought to have the final determination of the appeal delayed pending the delivery of judgment in the High Court on appeal from a judgment of this Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (Kenny, Buchanan and Nicholas JJ). The High Court dismissed that appeal on 6 September 2017; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936. The judgment does not assist the appellant. Having determined to allow the appeal for the reasons given above, I do not consider it necessary or appropriate to delay the final disposition of the appeal for the purposes of hearing submissions from the parties on the question.
65 I will hear the parties as to costs.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.