SZQXC v Minister for Immigration - [2012] FMCA 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 302

MIGRATION – Application to restrain the Minister from relying upon a report and recommendation of an Independent Merits Reviewer in respect of an Offshore Entry Person – Reviewer finding no Convention nexus with the specific harm claimed and feared by the applicant – Reviewer rejecting class claim made by the applicant – whether the Reviewer misconstrued or misapplied the test of persecution under the Convention considered.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5, 36, 46A, 477

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Minister for Immigration and Citizenship v MZYLE (No.2) [2011] FCA 1467
Minister for Immigration vSZQHH [2012] FCAFC 45
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZGHS v Minister for Immigration [2007] FCA 1572
SZLWVv Minister for Immigration [2008] FMCA 1022
SZQDZ v Minister for Immigration [2012] FCAFC 26

Applicant:

SZQXC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

DEAN LETCHER QC IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

File Number:

SYG 2745 of 2011

Judgment of:

Driver FM

Hearing date:

12 April 2012

Delivered at:

Sydney

Delivered on:

12 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr J Gormly

Solicitors for the Applicant:

Turner Coulson Immigration Lawyers

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2745 of 2011

SZQXC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

DEAN LETCHER QC IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to restrain the Minister from relying upon a report and recommendation of an Independent Merits Reviewer (“the Reviewer”) in respect of the claims of an offshore entry person under the Refugees Convention. The report and recommendation was made on 12 August 2011 and communicated to the applicant by letter dated 15 August 2011. The following statement of background facts relating to the claimant’s claims of persecution and the findings of the Reviewer is derived from the parties’ submissions.
The applicant is an Afghan national of Hazara ethnicity and Shi’a religion. He is 40 years old. He is married with eight children. His wife and children live in Pakistan.

The applicant arrived in Australia at Christmas Island as an offshore entrant on 23 February 2010. By virtue of ss.5 and 46A of the Migration Act1958 (Cth) (“the Migration Act”), the applicant was deemed to be an offshore entry person and was prohibited from making a valid application for a protection visa unless permitted to do so by the Minister. He is now detained at Melbourne Immigration Transit Accommodation.
On 16 March 2010 a delegate of the Minister interviewed the applicant at Christmas Island immigration detention centre with the assistance of a Hazaragi interpreter[1].
[1] Court Book (“CB”) CB 6-31
On 25 April 2010 the applicant submitted claims for protection as a refugee together with a request that the claims be assessed by the Refugee Status Assessment process (“RSA”). These claims included that the applicant feared persecution from the Taliban because the leader of the village had reported the applicant had been “talking to a girl”.[2] The applicant would later expand on this claim to the Reviewer who would reject it as not convention related.
[2] CB 81
In particular, the applicant claimed that:[3]
a)he is an ethnic Hazara and a Shi’a Muslim;
b)in or about 1997, he refused to work for the village chief, who falsely accused the applicant of having a relationship with an unmarried girl and reported him to the Taliban;
c)he and his brother were subsequently shot at by the Taliban;
d)he then fled Afghanistan, and lived in Pakistan and Iran before coming to Australia; and
e)during his time outside of Afghanistan, the applicant's brother had disappeared.
[3] CB 80-81
On 21 May 2010 the applicant’s advisors provided the Refugee Status Assessor (“the Assessor”) with a report by Professor Maley dated 20 May 2010.
The On 17 August 2010 the Assessor found the applicant did not meet the definition of a refugee in Article 1A of the Refugees Convention.[4] The Assessor recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and that the Minister not lift the bar on the applicant making a valid application for a protection visa[5]. The applicant was notified of this recommendation by letter dated 17 August 2010[6].
[4] CB 95-108
[5] CB 95-108
[6] CB 88-89
The Assessor considered but did not accept the applicant’s general claim of fear of persecution as a Hazara Shi’a.
On 17 August 2010 the applicant applied for review of the RSA and on 3 September 2011 forwarded submissions to the Reviewer.[7]
[7] CB 116-171
On 3 September 2010, the applicant's solicitor provided written submissions to the Reviewer in support of the applicant's claims[8]. Those submissions repeated the applicant's claim that he feared persecution from the Taliban in Afghanistan based on his ethnicity (Hazara) and religion (Muslim Shi'a)[9]. The submissions alleged that the Afghan authorities cannot provide protection for ethnic Hazaras[10].
[8] CB 115-171
[9] CB 116-117
[10] CB 116-117
On 18 January 2011 the Reviewer conducted an interview with the applicant.[11]
[11] CB 175
During the interview, the applicant advanced the following further claims:
a)in or about 1996, despite being married, he had formed a sexual relationship with the unmarried niece of the village chief; and
b)the village chief, who had an alliance with the Taliban, vowed vengeance against the applicant and arranged for the Taliban to kill him to restore family honour.
On 12 August 2011, the Reviewer affirmed the RSA officer's recommendation that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention and that that Minister not lift the bar on the applicant making a valid protection visa application[12]. The Reviewer notified the applicant of that recommendation by letter dated 15 August 2011[13].
[12] CB 175-182
[13] CB 173-174
The Reviewer found that “although life for Hazara may be difficult in both Afghanistan and Pakistan, the harm the claimant refers to arises from within his own racial and social group for purely personal reasons and not by reason of any of the Refugee Convention reasons for affording him protection by Australia”[14].
[14] CB 181, [25]
The Reviewer found that:
a)the Reviewer could not be satisfied that there was general and systematic persecution of Hazara in Afghanistan by the Taliban or any other force[15];
b)the applicant had been targeted by the village chief's family, not by the Taliban[16]; and
c)the Reviewer concluded that the applicant was not a person of political and social significance so that the Taliban would not be interested in him or his brother[17].
[15] CB 181, [25]
[16] CB 181, [25]
[17] CB 181, [26]
The Reviewer accordingly concluded that:
... the headman's opinion of the claimant's personal unsuitability rather than the adultery or membership of any particular social grouping coupled with the feeling of family disgrace was the essential reason for the claimant's possible harm[18].
I find that the essential and significant reasons for the claimant's feared harm has nothing to do with Convention reasons and are related to feelings of family disgrace and vengeance by the family members of the girl concerned. I find the claimant … does not meet the criteria for a protection visa set out in s.36(2) of the Migration Act 1958[19].
[18] CB 182, [27]
[19] CB 182, [28]
The Reviewer therefore recommended that the applicant not be recognised as a person to whom Australia has protection obligations under the Refugees Convention[20].
[20] CB 182
These proceedings began with an application for review filed on 1 December 2011. I gave directions in relation to the matter on 21 December 2011, which envisaged a need to consider granting an extension of time for the application, pursuant to s.477(2) of the Migration Act. I accept, however, the applicant’s submission that that consideration is unnecessary, having regard to the decision of the Full Federal Court in SZQDZ v Minister for Immigration [21], in particular at [27] and [49].
[21] [2012] FCAFC 26
The application contains two grounds:
1. The Reviewer failed to ask the correct question and as a result did not assess the applicant to have a well founded fear of persecution by reference to the reasonably foreseeable future in addition to the immediate future.
2. The Reviewer failed to consider whether the inability of the Afghan authorities to provide the applicant protection in respect of the harm from the family of the village headman was for a convention purpose.
Only the first ground was pressed. Essentially the applicant contends that the Reviewer erred in failing to consider the risk of harm faced by the applicant in the reasonably foreseeable future in Afghanistan as a Hazara Shi’a. To put it another way, the assertion is that the Reviewer failed to make a forward-looking assessment as to the risk of harm faced by the applicant by reason of his ethnicity and religion.
I received as evidence the court book filed on 31 January 2012 and the affidavit of Sue Archer filed on 23 February 2012, to which is attached a transcript of the hearing conducted by the Reviewer.
The applicant submits in particular as follows:
The Reviewer’s treatment of the applicant’s generic claim of fear of persecution as an Hazara Shia demonstrates a failure to assess the claim by reference to any “possibilities of future persecution, and to the reasonable foreseeable and not merely the immediate future”: per Allsop J in SZGHS v Minister for Immigration[22].
[22] [2007] FCA 1572 at [2]
The general claim to the Reviewer
The applicant’s first claimed fear of persecution as an Hazara Shia in the Entry Interview which recorded the applicant’s claims as follows:
I am Hazara + Shia + the Pashtuns will kill me if back; They (the Taliban) are killing in the name of Hazara and Shia in Pakistan too[23].
[23] CB 24
Taliban kill people if catch them. Who? Hazara. Other reasons? No B/c Taliban…Taliban is still there + would kill me + my family b/c we are Hazara Shia[24].
[24] CB 26
[Client gave examples of people who have been killed who were Hazara – didn’t personally know any of them][25].
[25] CB 28
The applicant’s statement of claims to the RSA includes the claim that “Pashtuns have been killing Hazaras and Shias for a long time”[26].
The report of Professor Maley of 20 May 2010 provided by the applicant’s advisors to the RSA includes a temporal analysis of the position of the Hazara into the reasonably foreseeable future:
The report warns of the drawing of premature conclusions about the Afghan situation[27].
The report claims “the general situation in Afghanistan remains profoundly threatening”[28] and that “There is little reason to be confident that the general situation in Afghanistan will take a turn for the better in the foreseeable future”[29].
The report contradicts a joint media release of the Australian Minister that “The Taliban’s fall, durable security in parts of the country, and constitutional and legal reform to protect minorities rights have improved the circumstances of Afghanistan’s minorities, including Afghan Hazaras”[30]. In response Professor Maley asserts “Unfortunately the limited capacity of the Afghan state means that constitutional and legal reform to protect minorities’ rights are meaningless for most Afghans, the Taliban remain active, and the reference to “durable security” is contradicted by the most recent Australian travel advice noted earlier”[31].
The report notes “ …the broader underlying point – that apparent improvements in a situation may be neither meaningful nor sustainable – is an important one to keep in mind, and is directly relevant to the present situation in Afghanistan[32].
The applicant’s written submissions to the IMR on the general claim specifically refer to the reviewer’s obligation to consider the applicant’s claims “in relation to ‘the reasonably foreseeable future’ ”[33].
At the IMR interview the applicant claimed:
The situation for Hazaras has not improved in Afghanistan and those who report that says it’s better that they are the ones who work with the Government, and they say for their own benefit and Hazaras were being killed since Abdul Rahman until now the Taliban are still in power:[34].
[26] CB 81
[27] CB 83, [1]
[28] CB 83, [2]
[29] CB 84, [5]
[30] CB 84, [6]
[31] CB 84, [6]
[32] CB 86, [12]
[33] CB 120
[34] Transcript, (“TR”) 20.19
I believe Hazaras still get killed on the road and everywhere else[35].
The general claim was made independently of the individual claim relating to the village leader’s family’s response to his relationship with the leader’s daughter.
The IMR report
In his report the Reviewer made no finding on and apparently gave no consideration to the general claim into the reasonably foreseeable future.
[35] TR 22.1
The Reviewer’s conclusion on the general claim relates only to the immediate future:
On the country material discussed with the claimant above and the other material provided by the claimant I do not believe there is a general and systematic persecution of Hazara in Afghanistan by the Taliban or by any other force[36].
The IMR report did not express that its findings were in respect of the immediately foreseeable future, nor did it recite the applicable law with specific reference to the reasonably foreseeable future[37].
The Reviewer did not advert to the relevant temporality of the applicant’s claims throughout the IMR interview, nor did he put any issue on the temporality of the claims or the substance of any adverse country information relevant to this matter to the applicant in the course of the interview. The IMR report instead focussed on the individual claims of the applicant as if they subsumed the general claim.
The Reviewer’s findings on the individual claims did not subsume the general claim, nor did the reviewer reject any factual premise of the general claim; he accepted that the applicant was a Hazara Shia[38].
A positive finding on the general claim would have been dispositive of the review, including the issues of safe home district.
The statements of the law in the IMR report and the final general finding at [28] that the applicant “does not meet the criteria for a protection visa set out in s. 36(2) Migration Act 1958” cannot be said to include the temporal aspect of the general claim because there is no reference to it.
As Allsop J said in SZGHS v Minister for Immigration [39]at [3]:
The Tribunal may be taken to have directed itself in respect of these matters uncontroversially in its template introduction. That does not, however, immunise its reasons from scrutiny or from a conclusion that, notwithstanding assertions in its reasons, its approach demonstrates a failure to employ the correct approach (which it has otherwise correctly stated to bind it).
[36] CB 181, [25]
[37] CB 175-177
[38] Applicant WAEE v MIMIA (2003) 75 ALD 630, [2003] FCAFC 184 at [47]:
[39] [2007] FCA 1572
In relation to this ground, the Minister makes two contentions. The first is that the applicant did not in truth make a generic claim of class persecution as a Hazara Shi’a, because the applicant’s particular claims were intertwined with it. Secondly, the Minister contends that it may be inferred from the Reviewer’s report and recommendation that he did consider the applicant’s risk of harm in the foreseeable future in Afghanistan because of his ethnicity and religion.
In particular, the Minister submits:
Ground 1 of the application alleges that the Reviewer “failed to ask the correct question and as a result did not assess the applicant to have a well founded fear of persecution by reference to the reasonably foreseeable future in addition to the immediate future'”.
This ground relates to the Reviewer's finding at [25] of the Reviewer's decision that:
On the country material discussed with the claimant above and the other material provided by the claimant I do not believe there is a general and systematic persecution of Hazara in Afghanistan by the Taliban or any other force [181].[40]
[40] Applicant's written submissions, [26]
The applicant alleges that the Reviewer's decision “focussed on the individual claims of the applicant as if they subsumed the general claim”.[41] In the Minister’s submission, this is a reflection of the way in which the applicant put his claim.
[41] Applicant's written submissions, [28]
Although submissions prepared on behalf of the applicant suggested that he faced persecution for reasons of his ethnicity and/or race generally[42], the claim advanced by the applicant himself was focussed on his alleged fear from a particular person, arising from a particular incident which occurred 13 years before the applicant came to Australia[43].
[42] CB 116-117
[43] CB 80-81; CB 177-180, [4]-[21]; Annexure A to the affidavit of Sue Archer, pages 11-12, 14-16; 20
In these circumstances, it was open to the Reviewer to take the view, as it did, that: “The actual evidence of Taliban involvement with the claimant is no more than his unsubstantiated statement. In fact, the details point to family hostility rather than Taliban political hostility”[44].
[44] CB 179, [11]
Similarly, it was open to the Reviewer to conclude that:
I did not consider that the claimant's fears had a basis in any Convention reason. It appeared from the interview that it was not Taliban activists but the headman's sons who sought revenge or punishment of the claimant for the personal disgrace brought on their family by his actions. It was what he referred to as his "unforgettable crime" and their personal reaction to it that lead to the harm that he feared then and says he fears in the future. I do not consider that the harm the claimant said he feared had a basis in any Convention reason[45] [emphasis added].
[45] CB 179-180, [14]
These conclusions led the Reviewer to find that:
... the harm the claimant refers to arises from within his own racial and social group for purely personal reasons and not by reason of any of the Refugee Convention reasons ...[46];
[46] CB 181, [25]
... the headman's opinion of the claimant's personal unsuitability rather than the adultery or membership of any particular social grouping coupled with the feeling of family disgrace was the essential reason for the claimant's possible harm[47]; and
[47] CB 182, [27]
I find that the essential and significant reasons for the claimant's feared harm has nothing to do with Convention reasons and are related to feelings of family disgrace and vengeance by the family members of the girl concerned[48].
[48] CB 182, [ 28]
The Minister submits that the Reviewer understood that the applicant based his claim for a protection visa on the basis that he faced a risk of harm from the Taliban, either because of his ethnicity or religion[49]. However, Minister submits that;
[49] CB 177, [1]
a) the conclusions and findings set out in [21]-[23] above show that the Reviewer did not accept that the applicant faced a risk of harm on either or both of those bases at all, but rather found that the applicant's claimed fear was personally motivated; and
b) in those circumstances, there was no need for the Reviewer to consider whether the applicant might face persecution on one or both of those bases in the reasonably foreseeable future because it did not accept that the applicant's fear related to those Convention grounds.
In any event, the Reviewer did address the claim that Hazaras are persecuted on a general basis by the Taliban, but found that there is no “general and systemic persecution of Hazara in Afghanistan by the Taliban or any other force”[50]. The Minister submits that there is nothing in these words to suggest that the Reviewer had limited himself to the immediate future, as:
[50] CB 181, [25]
i) the Reviewer had stated that he had regard to the harm “that [the applicant] feared then and says he fears in the future”[51]; and
ii) the Reviewer had put to the applicant that country information showed that conditions for Hazaras in Ghazni had changed “significantly for the better since 1997”; and
iii) there was no evidence relied on by the applicant that conditions for the Hazaras were likely to worsen in the reasonably foreseeable future.
In this context, it is to be remembered that the Reviewer's reasons are “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”[52]. The Reviewer's reasons are meant to inform and are “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”[53]. This approach has also been followed in considering the reasons of IMR recommendations:
It is necessary to approach the construction of the reviewer's reasons fairly and not pedantically. Minor errors of expression should not be used to mischaracterise the general effect of the reasons. The reasons should not be approached with the aim of finding error (Minister for Immigration and Citizenship v MZYLE (No 2))[54].
Accordingly, the Minister submits that the fact that the second respondent did not use the expression “reasonably foreseeable future” in his reasons does not support the applicant's claim that the Reviewer failed correctly to apply the test for assessing the applicant's claimed well-founded fear of persecution for a Convention reason.
[51] CB 179-180, [14]
[52] Collector of Customs v Pozzolanic (1993) 43 FCR 280 at [287]
[53] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
[54] [2011] FCA 1467 at [18]

Consideration

The Reviewer’s report and recommendation is unusual in that it does not follow the template style normally found in decisions of the Refugee Review Tribunal, which is commonly also adopted by Independent Merits Reviewers. That does not of itself point to any error. This particular Reviewer’s report and recommendation follows an individualistic style, which, in my view, reflects the confidence of legal training and experience and is refreshing, in that it is concise and for the most part clear, and undoubtedly reflects the Reviewer’s own thoughts.
The report is imperfect in that it contains findings in advance of the section of the report headed Findings and Reasons[55]. However such drafting defects do not support an assertion of legal error.
[55] CB 181
I accept the general legal principles relied upon by the applicant and supported by reference to the decision of the Federal Court in SZGHS v Minister for Immigration[56] and this Court in SZLWVv Minister for Immigration[57]. I accept that the applicant made a generic claim of a fear of harm by reference to his ethnicity and religion. The general claim was initially made in his original written claims.[58] They were repeated at the hearing conducted by the Reviewer[59].
[56] [2007] FCA 1572
[57] [2008] FMCA 1022
[58] at CB 24. They are repeated in further written claims reproduced at CB 81
[59] TR 20. 9
The generic claim was also supported by the applicant’s advisor in a submission.[60] There was further reference to the generic claim[61], and the risk of future harm arising from attempts by the Taliban to expand its influence into Hazara-dominated areas.
[60] reproduced from CB 116, and especially at page 119
[61] at CB 137
I reject the contention, to the extent it is made, that the applicant’s generic claim was in some way subsumed within his specific claim. It does appear that both the applicant and the Reviewer, in light of the issues explored at the hearing, focused upon the applicant’s particular fear of harm from the family of the headman of his village. However, at no stage did the applicant abandon his generic claim of the fear of harm based simply on his ethnicity and religion.
The Reviewer’s reasons make clear that the Reviewer was aware of the task that he had to perform. He referred to the relevant law applicable, including a reference to decided court cases[62]. In [2] of his reasons, the Reviewer records having regard to a number of documents, including the opinion of Professor Maley, who points to the uncertain position of the Hazara minority in Afghanistan.
[62] at CB 176 and 177
At [10] of his reasons[63], the Reviewer referred to the agent’s submission of 3 September 2010, which put general propositions supportive of the generic claim.
[63] CB 179
The Reviewer found that the particular claims made by the applicant did not have a Convention nexus. The Reviewer recognised, however, that the applicant’s generic claim did have a Convention nexus; he simply did not accept it. At [25] of his reasons[64], the Reviewer says:
On the material set out above[65] –
I find that although life for Hazara may be difficult in both Afghanistan and in Pakistan, the harm the claimant refers to arises from his own racial and social group for purely personal reasons, and not of any refugee convention reasons for affording him protection by Australia. On the country material discussed with the claimant above and the other material provided by the claimant, I do not believe that there is a general and systemic persecution of Hazara in Afghanistan by the Taliban or any other force.
[64] CB 181
[65] Which included [22] of his report, concerning the general situation of Hazaras in Afghanistan
The Reviewer then goes on to discuss the applicant’s particular claims of harm from the village headman and his family, which he found lacked a Convention nexus. There was no express finding by the Reviewer that the applicant did not face a well-founded fear of harm because of his ethnicity or religion in Afghanistan in the reasonably foreseeable future.
In my view, however, the Reviewer’s report as a whole, when read with the material before the Reviewer, and the transcript of the hearing conducted by him, supports the inference that the Reviewer understood the task that he had to perform and formed the view that he preferred the country information pointing to an improvement in the position of the Hazara minority in Afghanistan to the information advanced by the applicant, which pointed to risk and uncertainty.
That assessment by the Reviewer may of course be wrong, but that goes to the merits of the report and not the legal validity of it.
The Full Federal Court recently held by majority in Minister for Immigration vSZQHH[66] that the use of a template to deal with the template claim concerning the class of Hazara Shi’as in Afghanistan did not point to an apprehension of bias, and it may be inferred that the use of such a template does not necessarily point to other legal error.
[66] [2012] FCAFC 45
Likewise, in my view, the failure to follow a formulaic form of reasoning does not point to error. One needs to read the decision of a decision-maker fairly and completely in order to determine whether the failure to use express words to reach a necessarily conclusion indicates a failure to make a necessary assessment. That assessment may be inferred from a decision-maker’s reasoning as a whole, and that is the conclusion I draw in this case.
It follows that I find that the applicant has failed to demonstrate that the report and recommendation of this Reviewer was affected by legal error.
I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. Counsel for the applicant did not wish to make any submission on that issue. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 20 April 2012

“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.”