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.