FEDERAL COURT OF AUSTRALIA

Applicant P40/2003 v Refugee Review Tribunal [2005] FCAFC 107

MIGRATION – decision of Refugee Review Tribunal refusing protection visa – contents of country report considered by Tribunal not disclosed to appellant for comment – whether that failure amounted to jurisdictional error – appellant advised that information before the Department would be provided to the Tribunal – certain country information not provided – whether denial of opportunity to put best case and jurisdictional error

Migration Act 1958 (Cth)

P33/2003 v Refugee Review Tribunal [2004] FCA 474 referred to

Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 distinguished

Mahon v Air New Zealand [1984] AC 808 referred to

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 referred to

Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487; [2004] HCA 18 cited

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 cited

Stead v State Government Insurance Commission (1986) 161 CLR 141 cited

APPLICANT P40/2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and COMMONWEALTH OF AUSTRALIA

W 191 of 2004

MARSHALL, MANSFIELD & SIOPIS JJ

8 JUNE 2005

PERTH

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay to the second respondent her costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

the court

1                     This appeal is from a decision of French J given on 16 July 2004.  His Honour dismissed an application for prerogative relief, first sought in the High Court and then remitted to this Court for hearing and determination, in respect of a decision of the Refugee Review Tribunal (the Tribunal) given on 20 September 2000.

2                     The Tribunal affirmed a decision of a delegate of the second respondent of 20 April 2000 not to grant to the appellant a protection visa for which she had applied under the Migration Act 1958 (Cth) (the Act) on 27 January 2000, some six months after she entered Australia on 28 July 1999.

3                     The lengthy elapse of time between the Tribunal’s decision and the decision of French J is a consequence of the appellant, following the Tribunal’s decision, having initially applied to the High Court for prerogative relief as a party to a representative action.  The procedural history following the appellant’s joinder in that representative action is set out in P33/2003 v Refugee Review Tribunal [2004] FCA 474.  Following the decision of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 (Muin), the appellant filed a separate application in the High Court for an order nisi for constitutional writs on 17 June 2003.  It is that application which was remitted to this Court for hearing and determination.

4                     The background to the application before the Tribunal, including the appellant’s personal history, the grounds upon which she sought a protection visa, and the Tribunal’s reasons for decision are set out clearly in the reasons for judgment of the learned judge at first instance.  The following summary is taken almost entirely from his Honour’s reasons.

background

5                     The appellant is a citizen of Sri Lanka.  She is Singhalese, but has a Tamil first name.  She first came to Australia in January 1982 with her husband, a Sri Lankan sponsored Colombo Scheme student.  They remained until September 1984, whilst her husband completed his studies.  Their eldest daughter came with them.  While in Australia, on 17 February 1984, the appellant gave birth to another child, a daughter.  The daughter was subsequently registered as an Australian citizen.  Between 1987 and 1990 the appellant and her husband twice applied for visas to enter Australia from Sri Lanka but were refused.  Her husband visited Australia for a brief period from 18 to 29 June 1999 on a short term temporary visa.

6                     The appellant applied for a short term visitor visa on 8 July 1999.  She was granted that visa, and arrived in Australia with her Australian born daughter on 28 July 1999.  At the time she was employed as a project officer with the National Institute of Education at Maharagama.  She has degrees and diplomas in arts, journalism, education and creative writing.  On 27 January 2000, whilst still in Australia, the appellant lodged her application for a protection visa.

7                     She claimed that she would be persecuted because of her political opinions and activities if she returned to Sri Lanka.  In particular, she claimed to be a supporter of the United National Party (UNP) which was formerly in government in Sri Lanka, and that since the People’s Alliance Party (PA) came to power in 1994 she had been persecuted.  She said she had not been given promotion in her employment and had not been selected for overseas and local training due to her political associations.  She also said that her political associations led to her being refused leave in her employment.  She claimed that if she returned to Sri Lanka she would be subject to ‘disgrace, political victimisation, humiliation and persecution’ by her political opponents, as she had been in the past.  She said her support and electoral work for the UNP, including in (then) recent provincial council elections, and her association with UNP politicians had caused her to make enemies in her area.  Members and supporters of the PA had harassed her and caused damage to her property.  They had warned her not to have any dealings with the UNP.  The appellant also complained of having received telephoned anonymous death threats during the 1994 general election.  The appellant also said that her husband’s work as Press Commissioner for Sri Lanka involved him visiting Tamil areas, and that he had publicly expressed an unwillingness to treat all Tamils as terrorists.  That was said to have contributed to the aggressive behaviour towards the appellant and her family.  She said also that her Tamil name was or may have been a provocative factor in that behaviour.  The adverse behaviour was said to include a house robbery.  The appellant claimed that she could not rely on the police or the authorities for protection, and that her complaints to them fell on deaf ears.

8                     Following her application to the Tribunal for review of the delegate’s decision, the appellant was informed on 23 May 2000 that the Tribunal had sought from the Department a copy of its documents about her case.  On the same day, the Tribunal wrote to the Secretary of the Department seeking the documentation referred to in s 418(2) and (3) of the Act.  Thereafter, on 25 July 2000, the Tribunal again wrote to the appellant stating, inter alia:

‘The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.  You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims.  You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.’

9                     The appellant indicated that she wished to attend the hearing.  In addition, between 25 July 2000 and the hearing, various documents were submitted to the Tribunal on behalf of the appellant, including a letter from her husband with extensive enclosures and a submission apparently prepared with the assistance of her migration adviser.  The appellant also made a further written submission to the Tribunal following the hearing.

10                  In her written submissions to the Tribunal, the appellant expanded on her involvement with the UNP in the 1994 general election and presidential elections also held in that year.  She said she had been ‘disgraced, arrested and tortured’ whilst she was in Sri Lanka and that her fear of further arrest, torture and persecution compelled her to flee Sri Lanka.  Her written submissions discussed the concept of persecution under the Refugees Convention as amended by the Refugees Protocol (the Convention).  It addressed her claimed inability reasonably to relocate within Sri Lanka.  It referred to extensive country information concerning electoral violence in Sri Lanka in 1994.  It also referred to further country information concerning electoral violence in 1999 relating to regional elections, when it was said PA supporters had attacked UNP supporters.  That final submission culminated in the appellant claiming that, in the light of recent political violence unleashed by the PA government on the opposition UNP members and the recent political tension in Sri Lanka, the appellant faced a real chance of persecution if she were to return to Sri Lanka.  It claimed that she might be arrested and detained for an extended interrogation with the real risk of mistreatment, and possible torture and death.

11                  A hearing took place before the Tribunal on 5 September 2000.  The Tribunal told the appellant that it had considered the material that she had provided to the Department and the material that she had provided to the Tribunal.  The member indicated that he might discuss during the hearing information that he had regarding Sri Lanka, including information from sources such as the Australian Government, the United States Department of State, and non-government organisations or media.  He said:

‘If I consider that the information is particularly relevant to your situation I will discuss the information with you and give you the opportunity to comment on it.’

Certain of the information to which the appellant had referred in her written submissions included information from the United States Department of State, and from media, as well as from the Department of Foreign Affairs and Trade (DFAT).  The material specifically referred to by the Tribunal in the course of the hearing included the United States State Department Report on Sri Lanka which included the observation that:

‘… the UNP participates freely in elections and that although from time to time especially at election time there may be violence associated with the elections that generally UNP supporters are not attacked by the government and it supports [sic].’

the tribunal’s reasons

12                  The Tribunal, as is customary, began by referring briefly to the appellant’s background, the relevant provisions of the Act, and of the Convention, as well as High Court authority addressing the construction of Art 1A(2) of the Convention and the definition of ‘refugee’ and the concept of ‘persecution’.

13                  It then set out the appellant’s claims and the evidence.  It referred to a departmental file which included the original protection visa application and the supporting written submissions then made by the appellant.  It referred to the evidence of the appellant and of the witness who had given oral evidence to the Tribunal.  It referred at some length to independent country information, including the 1999 Country Reports on Human Rights Practices released by the Bureau of Democracy, Human Rights and Labor of the US Department of State dated 25 February 2000.  That document provided an overview of recent Sri Lankan political and electoral history.  That report included information concerning the violence which marked the period prior to the December 1994 presidential elections in which several persons were killed and during which there was an unsuccessful assassination attempt on the President.  It referred to the LTTE insurgency.  It noted that the government generally in Sri Lanka respected the human rights of its citizens in areas not affected by the insurgency.  The report also observed that citizens have the constitutional right to change their government through periodic multi-party elections, as demonstrated in 1994 when the PA coalition ended the 17 year rule of the UNP.  It described those elections as ‘generally free and fair but … marred by voting irregularities and violence’.  Passages from that report addressing those matters were quoted by the Tribunal.

14                  The Tribunal also referred to Country Information Report CX.29237 of 20 February 1998 from DFAT in which it was said that the influence of the UNP in local politics had waned since the 1997 local government elections as it had lost many of the councils it previously held.  The report noted that the UNP had won the most important local council in Sri Lanka which was the Colombo Municipal Council.  In opposition, the UNP was said to continue to have political influence, having 95 of the 225 seats in the National Parliament.

15                  The Tribunal then turned to its ‘findings and reasons’.  As French J pointed out, its reasons focused largely upon the credibility of the appellant’s claims.  It accepted her evidence as to her background, and that her husband occupied the office of Press Commissioner of Sri Lanka, and that she had two Sri Lankan daughters currently living there with him.

16                  The Tribunal also accepted that the appellant had suffered some discrimination in her employment with the National Institute of Education, relating to her lack of paid scholarships for overseas study and training courses in Sri Lanka, because of her support of the UNP.  It noted that she had been employed in that job for some time and had retained that position until she failed to return to Sri Lanka when her leave finished whilst she was in Australia, and that she was unsuccessful in her application for further leave.  It noted a letter from the Assistant Director General of the Institute dated 9 July 1999 to the effect that she would be able to hold the same position on return to her country.  It concluded that the discrimination which she had suffered in her employment did not constitute persecution because it was ‘not of sufficient seriousness’.  It said there was insufficient material available to it to determine whether the failure to grant the last leave application constituted discrimination for reason of her political opinion, or to determine whether the appellant’s failure to obtain promotions or further leave was the result of discrimination because of her political opinion.

17                  The appellant had claimed before the Tribunal that she had not intended to remain in Australia after the expiry of her visitor’s visa.  The Tribunal did not accept that.  It did not find it credible that a person of the appellant’s education and intelligence, who had previously travelled to and resided in Australia, would not be aware of the visa procedures in Australia or how to obtain advice about them, and would not be aware of the procedures to apply for protection from Australia whilst in Sri Lanka.  It also had regard to the fact that the appellant had originally attempted to get a year’s leave when she wanted to come to Australia, and to her inability to explain in a cogent way what she intended to do when her visitor visa expired.

18                  The Tribunal regarded as significant that the appellant had left her two non-Australian daughters and her husband in Sri Lanka when assessing her claimed fears.  That was particularly so (it said) when the appellant’s evidence indicated that her husband was the primary focus of threats because of his visits to Tamil areas and his unwillingness to label all Tamils as terrorists.

19                  The Tribunal then addressed the appellant’s other claims.

20                  It accepted that female occupants of a house in the vicinity of the appellant’s house had been raped and murdered whilst the appellant and her family were away, and that the appellant’s house itself was burgled during that period.  It did not identify any material connecting those incidents, nor any material connecting either of those incidents with the political views of either of the households.  Moreover, it noted that the police were able to recover some of the goods stolen from the appellant’s house, and regarded that as evidence of the fact that the police investigated the robbery.  There followed one paragraph in the Tribunal’s reasons which attracted particular attention.  It said:

‘The above information in CX29237 shows that the UNP still has influence.  This and the Applicant’s husband’s prominent position would ensure that they as Sinhalese would receive State protection.’

21                  The Tribunal found also that there was no information before it to show that the appellant’s Tamil Christian name would cause or contribute to any serious harm being suffered by her.

22                  It also did not accept her claims that she had been harassed and had suffered property damage caused by PA supporters because of her UNP support.  It specifically did not accept her claim that she had been tortured whilst in Sri Lanka.  It noted that that claim was not made until after the hearing before the Tribunal, and had not been mentioned in her husband’s letter of 10 August 2000 to the Tribunal in support of her claim or in a subsequent letter dated September 2000. 

23                  A witness at the hearing before the Tribunal said that her husband had told the witness that he did not want the appellant to return to Sri Lanka because of the war torn situation there.  The Tribunal preferred that evidence as the explanation for the appellant’s reluctance to return to Sri Lanka, and her desire to remain in Australia, rather than her claim to fear persecution by reason of her association with the UNP or because of her husband’s activities as Press Commissioner for Sri Lanka.  It then said:

‘The Tribunal accepts that the Applicant’s family received threats by telephone following her husband being perceived as being soft on Tamils.  The war torn situation described in the US Report is certain to polarise emotions and no doubt some Sinhalese are very anti-Tamil because of the rising death toll and terrorist bombings carried out by the LTTE.  Someone as prominent as the Applicant’s husband would attract criticism for comments and actions seen as pro-Tamil.  However, the Tribunal notes that he has remained with two of his daughters.  The Tribunal notes that prominent people in any country receive threats.  The Tribunal finds that anonymous threats are not serious enough to constitute persecution.’

24                  The Tribunal accepted that the appellant and her family may have concerns for their welfare because of the war torn situation and violent incidents such as the rape of people in their area.  It understood that they may wish to establish a foothold in Australia and re-assess the situation in Sri Lanka from time to time.  However, having regard to all the circumstances, including the appellant’s delay in applying for a protection visa, and the fact that her husband and two Sri Lankan daughters remained in Sri Lanka, the Tribunal concluded that the appellant did not have a well-founded fear of being persecuted for a Convention reason if she were to return to Sri Lanka.

the judgment at first instance

25                  The learned judge at first instance referred at some length to evidentiary material adduced on the hearing.  It included part of the transcript of the hearing before the Tribunal, and country information documents taken from Part B of the reasons of the delegate for the decision first refusing the appellant a protection visa.  Part B of the reasons listed the documentary evidence before the delegate at the time.  It comprised some 12 items including the departmental file and a number of reports and articles about Sri Lanka. 

26                  Counsel for the appellant tendered a copy of documents on the departmental file and the Tribunal file before his Honour for the purpose of establishing that the Part B country information documents were not on the Tribunal file.  His Honour found (as was accepted by the respondent) that copies of the Part B documents comprising country information (items 4-12) were not provided to the Tribunal by the Secretary of the Department.  French J found, however, that they were described with sufficient particularity in the delegate’s reasons that they could have been requested from a library or obtained from an accessible computer database.  The documents of DFAT with a ‘CX’ number were accessible through the Tribunal database known as CISNET.  The Tribunal also has an inter-library loan facility with the second respondent’s department.

27                  His Honour then noted the appellant’s evidence in her affidavit of 17 June 2003 that she was misled by the Tribunal’s letter of 25 July 2000 into believing that the Tribunal had considered all the evidence, including the Part B documents listed in the delegate’s reasons.  She further said that, had she known that the Tribunal had not considered all that information, she would have drawn that material to the Tribunal’s attention.  His Honour observed:

‘It was the case, however, as appeared from the applicant’s affidavit of 4 February, that she was not aware of the contents of the documents before the delegate when he made his decision to refuse the application for a protection visa.  She was given notice of those documents in the delegate’s reasons for decision.  She disclosed an ability, through her migration advisor, to access country information documents of that character by referring to a number of such documents in her own written submissions to the Tribunal.’

28                  Counsel for the appellant maintained on appeal three grounds for finding why the Tribunal had committed jurisdictional error, and contended that the learned judge at first instance had erred in failing to find jurisdictional error in those respects.  They were:

1.                  a want of procedural fairness in not providing to the appellant for response the document identified as CX29237;

2.                  an error of law as to what may constitute persecution for the purposes of the Convention; and

3.                  a want of procedural fairness by misleading the appellant that the Tribunal had considered all the Part B documents, when it did not, and so depriving the appellant of the opportunity to put her best case to the Tribunal by reference to those documents.

There was a further ground of jurisdictional error argued before the learned judge at first instance, relating to the requirements of ss 418(3) and 424 of the Act, but it was not pursued on the appeal and it is not necessary to refer to it further.

29                  His Honour found that there was no procedural unfairness by the non-disclosure to the appellant, for her comment, of the contents of CX29237.  His Honour noted that the information contained in that document was not new and apparently was not controversial.  He noted that the appellant did not give any evidence indicating what, if anything, she could have put in opposition to the Tribunal’s reliance upon that document.  In addition, he observed that the appellant’s claim of persecution was put fully to the Tribunal in written submissions and in her oral evidence.  He did not think the Tribunal’s findings and reasons indicated that its reference to the ongoing influence of the UNP in national and municipal politics (apparently based upon information in CX 29237) played a major part in its decision to reject the appellant’s claims, but rather the rejection flowed:

‘ … from the Tribunal’s characterisation of some of the conduct complained of as non-persecutory and its non-acceptance that other aspects had occurred.’

Consequently, his Honour found that the ground of procedural unfairness failed. 

30                  The Tribunal was not found by his Honour to have adopted an erroneous test of persecution for the purposes of the definition of ‘refugee’ in Art 1A(2) of the Convention.  There were two respects or elements of the Tribunal’s reasons which his Honour was asked to address.  The first concerned its comment that the discrimination of the kind suffered by the appellant in her employment did not constitute persecution ‘because it is not of sufficient seriousness’.  In that regard, his Honour noted that the observation was made only in respect of the discrimination which was found, namely the lack of paid scholarships for overseas study and training courses in Sri Lanka in her employment.  The Tribunal was not satisfied that the appellant was discriminated against in her employment in other ways.  As the observation related only to the discrimination relating to the lack of paid scholarships, his Honour did not regard that as reflecting an error of law on the part of the Tribunal.  Secondly, his Honour was asked to find that the Tribunal’s conclusion that there was no information before it to show the appellant’s Tamil name would cause or contribute to any ‘serious harm’ being suffered by her also indicated an excessively high threshold test for persecution.  His Honour did not accept that, but regarded it as a factual conclusion about the effects of the appellant’s Tamil Christian name.  In its context, he did not regard that as disclosing any error of law or jurisdictional error on the part of the Tribunal.

31                  The third contention did not succeed at first instance for two reasons.  The first was that the Tribunal’s decision turned upon its view of the characterisation and in parts the credibility of the appellant’s claims and evidence, so that any general country information could have made no difference to its conclusion.  The second was that, even assuming the Tribunal did not have regard to any information in the Part B documents, that most favourable to (i.e. confirmatory of) the appellant’s claims was about victimisation of UNP supporters and other persons (including PA supporters in election-related violence).  The Tribunal in its reasons had accepted that election-related violence occurred.  Consequently, his Honour said:

‘There was nothing in the material which was able to be pointed to as capable of reinforcing the credibility of the applicant on the critical areas in which the Tribunal found against her or otherwise reasonably capable of leading to a different outcome.  In essence, in my opinion, the defect process in this case is formal rather than substantive.  It could not have affected the outcome.’

consideration

32                  Clearly, the Tribunal could not make an adverse finding relevant to the appellant’s interests without the appellant being informed of the risk of such a finding, or unless the risk was clearly apparent.  The appellant was also entitled to an opportunity to adduce evidence or to make submissions concerning that potential adverse finding.  See generally Mahon v Air New Zealand [1984] AC 808 at 820-821.  As Gaudron and Gummow JJ pointed out in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 109, [60] the practical content of the obligation is controlled by the relevant statutory context and the circumstances of the particular case.  Counsel for the appellant did not join issue with the observation of the learned judge at first instance at [27] that unfairness which amounts to jurisdictional error is not merely some formal defect in process, but one which ‘has gone wrong and has given rise to a substantive defect which could have affected the decision taken’.

33                  Near the commencement of the hearing, the Tribunal told the appellant it may discuss with her information about Sri Lanka from sources such as the US Department of State and DFAT, and that if it considered the information was ‘particularly relevant’ to the appellant she would have the opportunity to comment on it.  During the hearing, the Tribunal referred for comment to the US Department of State Report as indicating Sri Lanka has periodic multi-party elections, including in January 1999 when the UNP party won a significant number of seats, and that the UNP party participates freely in those elections.  It also noted there is material showing election-related violence, but that more generally UNP supporters are not attacked by the PA party and its supporters.  It did not expressly refer to CX29237 during the hearing.

34                  Part of CX29237 was quoted in the Tribunal’s reasons dealing with the waning of UNP influence in local politics (to February 1998) because of loss of control of many local councils, although it retained control of the most important local council the Colombo Municipal Council, and with it having 41% of the vote and 95 of the 225 seats in the National Parliament.  CX29237 was not a document of which the appellant had specific notice.

35                  Counsel for the appellant contended that the appellant should have been given the opportunity to comment upon CX29237 specifically, or upon the specific information it contained about UNP’s seats in the National Parliament and its control of the Colombo Municipal Council.  The appellant deposes to believing that the authorities would not be able to protect her from PA supporters, and had she known about CX29237 she ‘would have made inquiries and requested my then migration agent to undertake research in support of my belief’.  She complained she had not had the opportunity to do so.

36                  In the particular circumstances, in our view, the appellant’s contention must fail.  The Tribunal’s reasons indicate that the appellant’s claim failed in part because certain politically motivated discrimination in her employment did not amount to persecution, in part because certain conduct which had occurred and which might occur in the future adverse to her was not politically motivated, in part because the appellant’s claims of past adverse politically motivated consequences experienced by her were not accepted, and because the past adverse politically motivated consequences which had occurred (the anonymous threats) did not in the circumstances amount to persecution.  The appellant has not sought on appeal to challenge that last-mentioned conclusion.  The Tribunal positively found the appellant wanted to remain in Australia not because of her expressed fears of politically motivated persecution, but because of the war torn situation in Sri Lanka.

37                  The Tribunal’s reference to CX29237 immediately followed its finding that the past acts of house robbery and neighbourhood violence were not politically motivated.  In effect, in addition to remarking that the police had responded to the house robbery, it drew from CX29237 that the UNP still has influence, and that together with her husband’s status and that they were both Sinhalese would mean they would still receive State protection.  That was a subsidiary or supplementary finding.  Without it, the Tribunal’s decision would have been the same.  The appellant set out to satisfy the Tribunal that the neighbourhood violence was state approved and politically motivated.  It did not find that.  More broadly, she feared ‘political violence unleashed by the PA government’.  The Tribunal did not accept that.  The appellant did not set out to satisfy the Tribunal that she was vulnerable to non-State politically motivated violence in circumstances where the State would not take reasonable measures to protect her, or could not provide a reasonably effective and impartial police force, which did not meet the standards of protection required by international standards:  Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487; [2004] HCA 18.

38                  The Tribunal drew from CX29237 simply that ‘the UNP still has influence’.  Counsel for the appellant did not contend that the appellant should have had drawn to her attention that proposition, but only the specific facts in CX29237 in the two respects mentioned above.  As the learned judge at first instance found, both the general conclusion and the specific facts were neither new nor apparently controversial.  They would be matters of public knowledge.  There was, and is, nothing to suggest that the appellant could or would gainsay them.

39                  In addition, it is clear that following the hearing on 5 September 2000 the appellant regarded the willingness of the Sri Lankan authorities to protect her from serious harm to be an issue.  Her post-hearing submissions specifically identified the issue, although they then reverted to the assertion that the source of her claimed fear was in fact violence sponsored by the ruling PA authorities.

40                  There is little in the second matter argued.  The Tribunal correctly referred to the High Court decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 as explaining the extent of the threat of harm or interference with rights which may amount to persecution.  In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 McHugh J at 21, [65] said that discriminatory conduct will ordinarily amount to persecution if it is:

‘so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.’

41                  The Tribunal is not shown to have misunderstood, or to have misapplied, that test in considering the significance of the past or prospective adverse politically motivated conduct which it accepted the appellant had been or might be exposed to in Sri Lanka.  It applied an evaluative judgment to that question, and is not shown to have reached a view not reasonably open on the facts:  cf Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 per Heerey J at 69-70,[3] and per Marshall and Dowsett JJ at 87, [53].

42                  The other criticism proffered of the Tribunal’s reasoning on ground two was an alleged failure to ask whether the conduct which the appellant had experienced or which she feared was of ‘some significant detriment or disadvantage’.  It was contended that the Tribunal erred by asking only whether the conduct involved ‘some serious punishment or penalty’.  This facet of the contention was not put at first instance.  The Tribunal’s reasons, fairly understood, do not involve a too narrow perception of what may constitute persecution, or a failure to apply the proper meaning of that concept.  Its use of the words ‘serious harm’ in context does not indicate that it excluded the possibility that some significant detriment or disadvantage different from physical harm might constitute persecution.  Its consideration of the significance of the accepted discrimination in employment indicates that.  It also shows that the Tribunal was alert to the possibility that certain types of discrimination may amount to persecution.

43                  The final ground of appeal sought to bring the appellant’s claim within the umbrella of the High Court decision in Muin.  Counsel contended that the Tribunal conducted its review without considering the Part B documents, contrary to what it had led the appellant to believe by its letter of 25 July 2000, and that had the appellant been properly informed she would have drawn the Part B documents to the Tribunal’s attention.  Her affidavit of 17 June 2003 to that effect was not challenged by cross-examination.  Hence, it was argued, the appellant was deprived of the opportunity to put her best case to the Tribunal and so deprived of the possibility of a successful outcome.

44                  The facts of the present case are different from the facts in Muin.  In Muin, it was agreed that Mr Muin had believed that the Tribunal had received the Part B documents, including country reports favourable to his claim.  The second respondent does not accept that the appellant had a similar belief.  It was further agreed in Muin that the Tribunal had not considered the material in the Part B documents.  The second respondent does not accept that to be the case in this matter.  It was further agreed in Muin that Mr Muin had been misled into believing that it was unnecessary for him to draw to the Tribunal’s attention the favourable material in the Part B documents, and that he would have tendered further material in support of his claims and made further submissions based on the content of the Part B documents.  The second respondent disputes that the appellant established those matters at first instance.

45                  The appellant is clearly not in the same position as the visa applicant in Muin.  Her evidence goes no further than showing a belief that the Part B documents were before the Tribunal, and she would have asked it to look at that material.  She did not claim to have known of the content of the Part B material, and to have refrained from referring to features of it by reason of the letter of 25 July 2000 or from adducing further material.  In fact, the appellant’s submissions to the Tribunal included reference to a number of other sources of information about the political situation in Sri Lanka.  She was clearly not inhibited from adducing material by any understanding of the contents of the Part B material, or that there was no need to do so.

46                  More importantly, the two matters referred to by the learned judge at first instance indicate that the appellant was not deprived of procedural fairness in any way which could have affected the outcome of her claim.  The first is that the Tribunal’s decision did not turn on any content of the independent country information, such that reference to the Part B material (assuming it was not seen by the Tribunal) could have made any difference.  In relevant respects it turned upon particular matters affecting the credibility of her particular claims, in the context of the largely uncontested background of events in Sri Lanka.  The second is that the favourable aspects of the Part B material as identified by counsel for the appellant were accepted by the Tribunal (assuming the Tribunal did not see the Part B material, from other reference material) in any event.  At first instance, his Honour described the favourable Part B material as showing election-related violence against UNP supporters and other persons including PA supporters (and an attempted assassination of the PA President).  On appeal, counsel referred to particular passages of the Part B material, but those references did not descend beyond general matters consistent with that picture.

47                  We agree with the learned judge at first instance that any defect in the process in this matter is formal rather than substantive, and could not have affected the outcome of the Tribunal’s decision:  cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.

48                  For those reasons, we consider the appeal should be dismissed.  The appellant should pay to the second respondent her costs of the appeal.

Associate:

Dated:              2 June 2005