DECISION
15 It is this last part of the decision regarding the consideration of what might happen to the applicant on his return to Sri Lanka that is challenged in the application for judicial review. The applicant submits that the Tribunal failed to make material findings of fact as to what might happen in the future to the applicant on his return to Sri Lanka. It did not give reasons as to why what might happen to the applicant would not amount to persecution, nor why such happenings would or would not be for a Convention reason. The findings made in respect of the past history of the applicant and his credibility, which are set out above, are not challenged in this application.
16 The respondent submitted that, although the Tribunal is obliged by s 430(1) to set out its findings on material questions of fact and to refer to the evidence or other material on which the findings of fact are based, the Tribunal's reasons for its decision and its findings are to be given a beneficial construction and are not be scrutinised in an overly critical way (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272).
17 The respondent argues that if one takes this beneficial approach, the Tribunal has implicitly, made the relevant findings which can be deduced by reading the Tribunal's reasons as a whole. This can be done without non-compliance with the legislation because one of the purposes of s 430(1) is to ensure that the Tribunal's reasoning process is explained and an unsuccessful applicant understands why he or she failed in the application. As this decision does fulfil that objective the absence of even material findings will not amount to legal error.
18 The respondent does not challenge the applicant's submission that the fact that the applicant is not a person who would face particular difficulties in Colombo is a material matter, nor that the assessment of these difficulties, as to prospects of persecution, is material. However, the respondent argues that the process of the Tribunal's reasoning is clear from the structure of the decision.
19 I do not accept this submitted conclusion. Even giving a beneficial reading to the decision, a reader could not, in my view, understand how the Tribunal came to the conclusions that it did on these issues. As the applicant submitted, the Tribunal did accept the country information which stated that individual Tamils may face difficulties but it did not then indicate in what circumstances such difficulties would be likely to occur. It merely stated that it had "already discussed" the individual circumstances of the applicant. However, on reading the decision the only relevant circumstance discussed but not accepted was the applicant's claim that he is of particular interest to the authorities. The Tribunal then concluded that the applicant would not fit into the category of people who would have difficulties. Its reasons do not state why this conclusion was reached.
20 The Tribunal also found that there would be some impact on the applicant of security measures in Colombo but did not state what this impact is or why it does not amount to Convention persecution. The country information, produced in full above, on which this conclusion is apparently based is capable of being interpreted in a number of ways. The Tribunal does not explain why it preferred the particular conclusion it came to in this case. The respondent argues that because the Tribunal found that the impact on the applicant of the security measures did not amount to persecution "it must have determined" that there was no real chance of the applicant being detained and tortured on the basis of his Tamil ethnicity. However, accepting from the country information reports of torture and mistreatment of Tamils in detention the Tribunal does not give any explanation of why it concluded there was no cause or connection between such mistreatment and the Tamil ethnicity of detainees.
21 It may be that the Tribunal had weighed up the effect of the policy and practices of the Sri Lankan government which were directed against abuses of this kind and concluded that these were successful enough to reduce the likelihood of serious mistreatment in custody and therefore concluded that there was no real chance of such mistreatment occurring to the applicant. The reasons for decision does not reveal such reasoning and it could not, in my view, even giving the reasons a beneficial construction be fairly inferred.
22 Once the Tribunal considered the country information in order to reach its decision on the general question of whether as a Tamil the applicant faced a real chance of persecution if returned to Sri Lanka, a number of material questions needed to be addressed:
(a) What was the likelihood of the applicant being detained in Colombo in a round-up or at a check-point because he is a Tamil?
(b) What was the likelihood of the applicant, if detained, being mistreated in custody in a manner serious enough to constitute persecution?
(c) If such serious mistreatment might occur would it be characterised as being inflicted for a Convention reason?
(d) Was there a real chance of such mistreatment for a Convention reason occurring?
No findings either explicit or implicit were made on any of these issues.
23 There has therefore been a substantial failure of the Tribunal to set out its findings and reasons for concluding that this applicant is not at risk of persecution in Colombo because he is a Tamil and the obligations imposed on the Tribunal by s 430 has not been met. I remit the matter to the Tribunal for determination according to law.
I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor.