FEDERAL COURT OF AUSTRALIA

MZZNK v Minister for Immigration and Border Protection [2015] FCA 217

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to his appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant has appealed the judgment of her Honour Judge Riley of the Federal Circuit Court of Australia handed down on 7 October 2014. Her Honour had before her an application for judicial review of a decision made by the second respondent (the Tribunal) on 14 June 2013, wherein the Tribunal had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Protection (Class XA) visa (the visa).

2    The appellant appeared before me with the assistance of an interpreter. The Minister was represented by counsel; the Tribunal filed a submitting appearance.

3    The appellant has advanced eighteen grounds of appeal. Despite the reservations that I have as to one aspect of the Tribunal’s fact finding process that I will elaborate on shortly, no ground has been made good. Accordingly, the appeal will be dismissed.

I:    Background to the Tribunal’s decision

4    The appellant is a citizen of Sri Lanka and 43 years of age. He arrived in Australia on 3 May 2011 as a crewmember on a ship that arrived at the Port of Fremantle, WA.

5    On 16 June 2011, his then migration agent wrote to the then Department of Immigration and Citizenship enclosing an application for the visa. In that application he set out details of his employment, most of which involved work from time to time on various ships during the period 1998-2011 in the role, for the most part, as a cleaner. As part of the visa application, he attached a statement described as “Submission of Claims”, which consisted of 4 single line typed pages signed by him and dated 16 June 2011. Principally, the appellant claimed to have a well-founded fear of persecution if he was returned to Sri Lanka. He said that he had witnessed two murders and that he had been and would continue to be threatened both by the perpetrator not to give information to the police and by the victims’ families to give information to the police. The murders apparently took place in 2004. The appellant explained this at the time in the following terms:

On the 17th of August 2004, when I went to collect my wages to the businessman's house, I was sitting on a tyre in the garden waiting for him to come, a person whose name was "Ranjith Lankadewa" known to the businessman's son "Vijaya Vishvanath Wickramasinghe" known as "Loku Raththa" came and was having a conversation together. There was another person by the name of Liyanage Samantha Priyadharshana known in the village by the nickname of "Suddha" who joined the conversation. One of the sons "Upali Sanath Wickramasinghe" lived across the road and he was changing a tyre on a truck.

There was a big white car that came speeding down the road with about 4 people and two of them got down and came dashing out with guns and shooting at "Wijaya". The other son "Upali" who was on the other side of the road came running towards the shooters with the wheelbase to hit them when he too were shot at and the gunman got into the car and drove away towards the Colombo direction. In this shooting "Lankadewa" and "Suddha" was also shot at in the incident. "Wijaya" was killed instantly and "Upali" died in the hospital. "Lankadewa" and "Suddha" was injured. I was terrified to have experience such a grusum incident and was shaking with fear. I didn't know what to do. Whilst villagers came rushing from all over and the police were called, I was speechless and got to my home as quickly as possible.

It was well known in the village that this organised murder was carried out by Manoj Silva, but there was no one to give evidence against him or indicate anyone of his association as they didn't want to end up like those who were killed.

The police and the Yasapala family was looking for anyone who could give evidence whilst I kept silence as I feared the worse and also, although I saw in a flash what happened, I cannot identify anyone or say who they are as I actually don't know. Also, I was so shocked, it was all like a nightmare and I cannot come to terms with going back to the remembering of this incident as it scared me for life.

6    The appellant concluded his statement in the following terms:

I left Sri Lanka because I have no other alternative. I fear to return back as I fear for my life and my children's lives. I have been suffering at the hands of these two parties owing to something I cannot have any control of. I will definitely be killed if I go back. I know for sure that there is no way the authorities can protect me as I have been there and seen how the authorities were unable to protect people who had money, power and influence in the authorities and still lost 3 sons as revenge attacks. I am just a simple man with nothing. Let alone have money, I was not able to secure a job in Sri Lanka due to the harassment I faced. I have only been able to work on vessels which the only option I had and was eventually coming to an end because the last vessel I worked on was to be sold over and I was sure that I couldn't stay away and that after what happened in January last year (Slit my wrist) I was not going to take a chance on losing my children. I am fully aware that these people have no hearts and are very well capable of committing any sort of crime and getting away because they hold the power, money and the influence in the underworld.

I am not willing to return back and I beg that my claims are given humane consideration and give me the opportunity to bring my family here to live with me.

Please note that I intend to provide further evidence in relation to the credibility of my claims. I did not prepare for this but I took the opportunity and stayed here in Australia as it was going to be my last voyage.

7    No other basis was contained in this statement supporting his claim for protection. As is apparent, his wife and children have remained in Sri Lanka.

8    Subsequently the appellant submitted further documents to the Minister including a letter dated 14 November 2011 purportedly from a member of the Southern Provincial Council and Chief Organiser of the United National Party (the then opposition party) Rathgama Electorate, Sri Lanka that the appellant was well known to him in the last 10 years and that the appellant was a strong supporter of the United National Party (UNP) and had actively engaged in election campaigns being the 2009 Provincial Council election (Southern Provincial), 2010 Presidential election and 2010 Parliamentary election. The letter also said that on “[s]everal occasions [the appellant] informed me that he received severe threats including death threat from the government supporters during and after the election period”. The appellant also submitted material by way of translated newspaper articles that appeared to support the proposition that two murders had occurred in the appellant’s then location in 2004. But they did not speak to whether the appellant witnessed the murders or whether thereafter he had been threatened in the manner asserted.

9    On 5 June 2012, the delegate of the Minister refused the visa application.

10    On 19 June 2012, the appellant filed with the Tribunal through his then solicitors who had been retained, an application for review of the decision to refuse the visa. On 5 December 2012, the appellant was invited to appear before the Tribunal on 5 February 2013, with an interpreter in Sinhala to be provided.

11    Before the hearing, the appellant provided to the Tribunal various materials including:

    a letter dated 17 January 2013 purportedly from the Chairman of the Provincial Council of the UNP asserting that the appellant had been a member of the UNP for “a long period of time”;

    more material seeking to demonstrate that the murders had occurred; and

    a letter dated 25 August 2012 from a person describing himself as a “Former Urben Council Member” asserting that the appellant was “an active member of the youth front” of the UNP and that “[i]n 2004 3 members of his close friends were killed by an underworld criminal gang. He also received threat for his life and as a result of that he was compelled to leave home and later goes abroad”. It was also said that he was “a reliable young lad, who bears good moral character”. On its face, some of the statements were clearly inapposite.

12    Further, in the material provided was a typed statement purporting to be a translation of a statement given by his wife to Sri Lanka Police in 2011. It was in the following terms:

[Wife’s name] Age: 33 years – No Employment, Sinhala, Buddhist, husband [MZZNK], residence [address], states as follows: I am living at the said address with my children since the year 2006. Formely I was living at the village the birth place of my husband in Seenigama in Hikkaduwa. Mudalali, under whom my husband was employed, forced me to give evidence on behalf of his party regarding the double murder and further requested me to not to give evidence against party who did the murder. Since the year 2004 from time to time, under World thugs threatened my husband and his family people. Therefore we came to reside at my mother’s native place in Ibbagamuwa. However these people have managed to find out my husband’s house in Ibbagamuwa they came to our house and assaulted my husband. By this assault my was injured near the wrist in the right hand. Due to this matter my husband [MZZNK] got afraid, left home, and worked in various place, and later on he went abroad. Today by about 5.30 a.m. thugs came in a van and questioned ‘where does [MZZNK] staying’. I replied that he has gone abroad, I was asked not to tell lies and that he living in Sri Lanka and if found they would kill him, threatened and want by the van. Before this these people visited, my house several times threatened and went away. Because of this matter myself and my children livig with fear. I therefore request to give us the protection. The thugs are not known to me. I am sure that the three sons of Mudalali are in the group thugs who did the murder. After their departure I am making this complaint to the Police. These are all I got to say. Read over and explained.

13    Other material provided to the Tribunal demonstrated unrest in the area where the appellant had resided. His wife and children no longer live in that area.

II:    Tribunal hearing and decision

14    The Tribunal hearing occurred on 5 February 2013. The appellant attended and gave evidence with the assistance of an interpreter in Sinhala/English. He was represented by his migration agent. The material before the Tribunal included what has been described above and also included a record of a Departmental interview that was before the delegate. On 14 June 2013, the Tribunal handed down its decision affirming the decision to refuse the visa.

15    The Tribunal at [3] to [4] set out the appellant’s background in the following terms:

3.    According to his protection visa application, the applicant was born in 1972 in Galle, Sri Lanka, is a Sri Lankan citizen and holds a Sri Lankan passport. He is of Sinhalese ethnicity and of Buddhist religion. He married in 2001 and is in contact with his wife and children while in Australia. He lived at Hikkaduwa from 2001 to late 2004, and at Ibbagamuwa from then until September 2011. He has travelled to Indonesia, Thailand and Malaysia, Indonesia, Kuwait and the Maldives as a ‘vessel employee’. He has ten years’ education and was employed as a cleaner before coming to Australia, including on various ships from April 2008 to May 2011, earning $800US per month.

4.     The applicant left Colombo lawfully and says he had no difficulties obtaining his travel document. He has entered Australia before – in August 2008, in February 2009 as a ship crew member, and at Freemantle Port on 3 May 2011.

16    In terms of the appellant’s principal arguments before the Tribunal, they were to the effect that:

    There was a real chance that the appellant would be persecuted in Sri Lanka by reason of his membership of particular social groups being “returning asylum seekers who are UNP members” and “unprotected witnesses seeking asylum in Australia” and for his political opinions being a UNP supporter, and that he faced a real chance of persecution by the government by reason of his political support for the UNP.

    There were substantial grounds for believing that the appellant, as a necessary and foreseeable consequence of being returned to Sri Lanka, would face death, torture, or humiliating treatment as a returning failed asylum seeker with his stated profile.

    He faced a real risk of harm including to his life as a result of witnessing the two murders.

17    It is apparent from the Tribunal’s reasons that the Tribunal at the hearing had concerns about the plausibility of various aspects of the appellant’s account being:

•    Whether he witnessed the 2004 murder, and was of ongoing interest to Manoj Silva, the Yasapala family (or associates of either man), or the police in Sri Lanka arising from this incident; and

•    Whether he was an active UNP supporter and – even if he was found to be an ordinary UNP supporter – [whether] he would face a real chance of persecution due to his political opinion.

18    It is appropriate to consider the Tribunal’s findings on various matters. I propose to set out more detail than is usual so that the appellant’s 18 grounds of appeal and my discussion of them are sufficiently contextualised.

(a)     Alleged role as witness to crime

19    On this aspect, the Tribunal, although it accepted that there had been the two murders claimed, said that it did not accept that the appellant had witnessed the murders as claimed or that he or his wife had been threatened in the manner claimed. Moreover, the Tribunal did not accept that the appellant was known to the threatening individual(s) involved (see [19] to [25] of its reasons).

20    The Tribunal found (at [20]) that the appellant’s account lacked “internal coherence, plausibility and credibility”. It found certain claims “implausible” (at [22]). The Tribunal also attached “limited weight” to the documents produced. For example, the Tribunal noted that certified translations had not been produced and queried the late production of some material whose dates preceded the visa application (at [22]). The Tribunal did not, however, set out any express findings based upon witness demeanour.

21    The Tribunal did not accept that the appellant had established his claim on this aspect from the material provided solely by him and from the evidence he gave. The universe of material that was used to reject the appellant’s claim was material and information sourced solely from the appellant.

22    Now this may not be an unusual circumstance. But an error may be identified in how the Tribunal went about its task if the Tribunal had approached the task in one or more of the following ways:

(a)    First, commencing a review of the material and evidence provided by an applicant with an unwarranted degree of scepticism.

(b)    Second, engaging in confirmatory bias by inappropriately discounting material prima facie in support of the applicant’s position before the totality of the material had been considered.

(c)    Third, viewing inconsistencies, vagueness or omissions in the applicant’s version of events without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties (particularly when an interpreter has been used) or due to reticence to be forthcoming with people or bodies perceived to be in authority; inconsistencies, vagueness or omissions do not necessarily indicate a deliberate lack of truthfulness, although they may affect the assessment of reliability.

(d)    Fourth, viewing the absence of documentary material without regard to the improbability that such material would exist or be in the possession of the applicant at either the time he applied for a visa or at the time of the review before the Tribunal.

(e)    Fifth, discounting documentary material put forward by the applicant without good reason.

(f)    Sixth, placing an onus on the applicant to establish that he was truthful.

(g)    Seventh, failing to assess all material before reaching a view as to whether the applicant’s version of events was rational or indeed probable.

23    Whether such an error could amount to a jurisdictional error need not be debated here. Having reviewed the Tribunal’s reasons in the present case, I am satisfied, as was her Honour no doubt, that the Tribunal had not performed its task in an impermissible fashion. Moreover, whether I would have gone about the fact finding exercise in the same fashion or made the same findings as the Tribunal is not presently to the point. The question is whether it was open to the Tribunal to engage in the process of reasoning in which it did engage (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131] and [133] per Crennan and Bell JJ). In my view, it was so open.

(b)    Alleged political support for the UNP

24    The Tribunal also did not accept that the appellant was a member or active supporter of the UNP (see [26] to [36] of its reasons).

25    It must be said that the Tribunal was considerably influenced by the belated mention by the appellant of this aspect. At [27] it stated:

27.    As I told the applicant at the hearing, I am concerned that he did not mention his UNP support or its relevance to his other claims at all in his four-page written statement to DIAC. The statement is a very detailed and sequential account of his past situation in Sri Lanka, and I do not accept that the reasons advanced (for example, stress and his emotional state) caused him to omit this particular part of his claims from the statement. It is reasonable to expect the applicant would refer to his UNP involvement in his written statement in some – even brief – way, were it integral to his claims.

26    On a first reading, it seemed to me that the Tribunal had placed undue emphasis on the “lateness” of this assertion, although in any event that would not per se establish any jurisdictional error. The visa application with the four page statement was lodged on 17 June 2011. The UNP claim was first made on or about 13 April 2012, being the date of the appellant’s interview with the Department. Sometimes lateness may simply be due to a lack of perception of relevance or that other perceived bases were more compelling in the applicant’s mind or inadequate advice. But in context, when one analyses the rest of the Tribunal’s detailed analysis, it seems to me that the Tribunal approached its task properly, alternatively expressed, without jurisdictional error (see [28] to [33] of its reasons).

27    I should note one other aspect. Because of the Tribunal’s findings, it perceived that it did not need to delve further into the independent country information. I will deal with this in more detail later.

28    As it said at [34] of its reasons:

I raised with the applicant at the hearing my views on independent country information about the treatment of ordinary UNP supporters in Sri Lanka. However, I have not considered that information further, given the findings in this section.

29    Accordingly, it concluded at [35]:

Given the above findings, I find there is no real chance the applicant will be persecuted by reason of his stated political opinion either now or in the reasonably foreseeable future if he returns to Sri Lanka.

(c)    Membership of particular social group

30    The appellant had raised his membership of a social group(s) as justifying protection. There were three asserted groups to consider.

31    First, his assertion that he was a member of a social group which included the characteristic of “unprotected witnesses” was not made good on the Tribunal’s factual findings, whatever else might be said as to the formulation of such a group or the consequences of its membership in the present context.

32    Second, his assertion that he was a member of a social group which included the characteristic of “UNP members” was not made good on the Tribunal’s factual findings.

33    Third, in terms of his status as “a failed asylum seeker”, the Tribunal at [37] to [38] said the following:

37.    The applicant left the country lawfully and there is no claim, argument or suggestion that he would be harmed for any reason relating to his mode of departure.

38.    I find the applicant has no subjective fear that he will be harmed by the Sri Lankan authorities as a returning failed asylum seeker in Sri Lanka. At the hearing, I raised this matter with him and asked why he thought the government authorities would be concerned if they guessed he sought asylum in Australia. He said this (his return as a failed asylum seeker) was probably not a problem (with the government) and his main concern was that Manoj would use this issue to harm him. I have found elsewhere above that the applicant is not known personally to Manoj, and there is no other logical basis in the accepted evidence for finding there is any real chance Manoj would be motivated to harm the applicant, including in relation to his asylum claim, even if it were known.

(d)    General

34    On the basis of the above factual findings, the Tribunal concluded:

(a)    The appellant’s stated fears of persecution in Sri Lanka were not well-founded;

(b)    The Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugee Convention (s 36(2)(a) of the Migration Act 1958 (Cth) (the Act)).

(c)    The complementary protection criterion was not met (s 36(2)(aa) of the Act).

35    The Tribunal affirmed the decision not to grant the visa.

III:    Federal Circuit Court DECISION

36    On 8 July 2013, the appellant filed an application for judicial review of the Tribunal’s decision with the Federal Circuit Court. That application was dismissed by her Honour on 7 October 2014.

37    The application raised numerous grounds of review which her Honour dealt with in detail in her reasons. It is apparent to me that her Honour carefully considered the various grounds raised including reading the transcript of the Tribunal hearing, which she had ordered the Minister to produce, and listening to a recording of that proceeding (one compact disc), with particular attention being paid to the passages between the 70 minutes mark to the 92.5 minutes mark. This was to address one ground of review that had raised apprehended bias.

38    If I may be permitted to say so, her Honour’s diligence was notable.

39    It is not necessary to repeat such grounds of review and her Honour’s analysis at this point. Almost all the grounds raised before her were then raised again before me. Conveniently, I will deal with her Honour’s reasons in that latter framework.

IV: Present appeal

40    On 24 October 2014, the appellant appealed the Federal Circuit Court decision. The notice of appeal filed by the appellant raised 18 grounds. The appellant also filed an affidavit sworn on 21 October 2014 and contentions of fact and law dated 20 January 2015.

41    It is convenient to deal with the various grounds of appeal in the order set out in the notice.

(a)    There was no evidence to suggest that the police had no interest in the appellant and did not regard him as a witness to the murders

42    Her Honour dealt with this ground at [9] to [10]. Her Honour reasoned that the Tribunal was entitled to reject the appellant's claims without evidence to the contrary. That position was correct. The Tribunal took this approach on the basis of an assessment of the appellant's credibility and other material. This course was open to the Tribunal. Some probative material or other logical basis for a factual finding by the Tribunal was sufficient (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-368 per Deane J). The Tribunal was not obliged to uncritically accept evidence or a submission made by the appellant. Indeed, a finding on credibility is the function of a primary decision maker par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (Durairajasingham) at [67] per McHugh J, Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [40] per Bennett, Nicholas and Yates JJ and Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9 per O’Connor, Branson and Marshall JJ).

43    I reject this ground of appeal. I would reiterate however the point that I made earlier at [21] and [22].

(b)    There was no evidence to suggest that the appellant did not witness the murders or that he was not known personally to Manoj Silva and his associates

44    This ground was rejected by her Honour for the same reasons as the first ground (at [11] to [12] of her reasons). For the reasons set out above, her Honour was correct to do so. Accordingly, this ground of appeal is also rejected.

(c)    There was no reason why the appellant could not do work and support the UNP and continue with his job

45    This ground was dealt with by her Honour at [13] to [16]. The ground relates to one aspect of the Tribunal's reasons for rejecting the appellant's claimed membership of the UNP. The Tribunal had placed little weight on letters of support from purported UNP representatives and the appellant's account of his political activities. This was partly due to the fact that for much of the duration of those alleged activities, the appellant was working on ships and outside Sri Lanka.

46    The Tribunal was charged with finding the facts, not the Federal Circuit Court or myself. In this case, the Tribunal rejected the evidence of the appellant not only because of the conclusion it had reached about his absence from Sri Lanka during the relevant period, but also because the claim was not raised at the time of his visa application, lacked detail, was vague, and otherwise lacked credibility. The Tribunal's rejection of the appellant's evidence about his association with the UNP was open to the Tribunal. As I say, it was based on the Tribunal's assessment of the appellant's credibility and the unreliability of the evidence provided.

47    Her Honour correctly rejected the ground. So do I.

(d)    The Tribunal has placed too much significance on the fact that the appellant did not raise the fact that he supported the UNP until being interviewed by the delegate

48    This ground was dealt with by her Honour at [17] to [18]. The weight the Tribunal accorded each piece of evidence was a matter for it to determine in light of the evidence and submissions before it. Questions of weight per se are not amenable to judicial review (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J; Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Kiefel, RD Nicholson and Downes JJ and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41] per Mason J). No question of irrationality, illogicality or unreasonableness arose. This ground of appeal is also rejected.

(e)    The Tribunal should have considered the appellant as belonging to a particular social group, that is a returning asylum seeker

49    This ground was dealt with by her Honour at [19] to [20]. This ground relates to an alleged failure by the Tribunal to consider an integer of the appellant's claim, namely, that he was a member of a particular social group being a returning asylum seeker. The Tribunal addressed this issue. It did so at [37] to [40] of its reasons. The Tribunal rejected the claim on the basis of its other findings and the evidence given by the appellant during the Tribunal hearing. This ground has no substance.

(f)    The Tribunal failed to deal with an integer of the claim, as to whether or not there was a well-founded fear of persecution based on the appellant’s membership of an alleged particular social group, namely returning failed asylum seekers of Sri Lanka

50    This ground was dealt with by her Honour at [21] to [22]. In his written submissions the appellant referred to an additional aspect in relation to this claim, namely, that he could be the target of extortion and kidnapping. But the extortion and kidnapping claim had not been raised before the Tribunal; the Tribunal had considered the balance of the claim. This ground is also rejected.

(g)    The Tribunal did not put to the appellant for comment all adverse “country information” regarding the situation for failed asylum seekers/returnees in Sri Lanka

51    This ground was dealt with by her Honour at [23] to [24]. As she noted at [24], this claim was rejected because the Tribunal found that the appellant did not have a subjective fear of harm for this reason (see at [37] and [38]). That finding was made on the basis of the appellant's own evidence and not on the basis of any country information (see [27] to [29] above). This ground is rejected. I elaborate later on the Tribunal’s treatment of the country information at [73] to [79].

(h)    The Tribunal has not taken into account the verbal account of the murders that the appellant allegedly witnessed

52    This ground was dealt with by her Honour at [25] to [27]. The Tribunal was not required to refer in detail to every piece of evidence advanced by the appellant in support of his claims (Durairajasingham at [64] to [67] per McHugh J and Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J (as he then was)). No line by line refutation was required. It is apparent to me that the Tribunal considered all the available evidence.

53    There is no clear line between evidence that does not need to be referred to and evidence that is so material that a failure to advert to it gives rise to an inference that the Tribunal has not properly considered a claim or an integer thereof. The Tribunal's reasons indicate that it gave careful consideration to the appellant's claim to fear harm as a result of witnessing the two murders. The Tribunal rejected much of the appellant's evidence because his “account lack[ed] internal coherence, plausibility and credibility” (at [20]). There was no error in the Tribunal not setting out the appellant's evidence in the detail in which he gave that evidence. And any failure to do so does not give rise to any plausible inference that all of the evidence was not taken into account. Moreover, there was no failure to refer to an “integer” of the appellant’s claims.

An approach to jurisdictional error that relies on rigid categories or formulae is inapposite. Although a distinction between claims (and their integers) on the one hand and evidence on the other hand may be a useful tool of analysis, “ultimately what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error” (Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16 at [49] to [52] per Katzmann, Griffiths and Wigney JJ adopting the position of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [111] to [112]). Whatever the debate concerning characterisation, which doesn’t presently arise, the Tribunal took into account the appellant’s account. The fact that the Tribunal did not refer to all aspects of it does not invite an inference that it failed to consider all aspects of it (cf other scenarios discussed in SZSRS at [33] and [34]).

(i)    The interpreter misinterpreted a certain part of the murder description

54    This ground was dealt with by her Honour at [28] to [31]. Her Honour noted that there was no evidence before her that there had been a misinterpretation. Further, the misinterpretation of the appellant's evidence could not lead to jurisdictional error unless it caused the Tribunal to fall into some other form of error. It has been said that “an error of fact based on a misunderstanding of evidence in considering an applicant's claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims” (MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at [83] per Keane CJ and Perram and Yates JJ, referring to Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at [28]); this is, of course, a reference to a non-jurisdictional fact. The asserted misinterpretation (even if made) did not cause the Tribunal to fail to properly consider the appellant's claim to fear persecution in consequence of having witnessed the murders. This ground is not made out.

(j)    The Tribunal did not properly take into account the threats to the appellant’s family

55    Her Honour dealt with this ground at [32] to [33]. Even if this was an error, it is not a jurisdictional error. But in any event, the reasons of the Tribunal demonstrate that it gave consideration to the appellant's claims to fear persecution for having witnessed the murders but, ultimately, rejected much of the appellant's evidence and concluded that the appellant had not witnessed the murders or been threatened or harmed by the police, the perpetrators of the crime or the victims' family (at [20] to [23]). Those claims were held to be implausible and lacked coherence and credibility. Further, the Tribunal did not accept that the appellant's wife had been threatened periodically by the relevant individuals in order to establish the appellant's whereabouts (at [22]).

56    Her Honour noted at [33] that the Tribunal was “under no obligation to set out, chapter and verse, everything that an applicant says to it”. The appellant has not demonstrated any basis on which her Honour erred. This ground is rejected.

(k)    The Tribunal did not properly take into account the appellant’s UNP involvement

57    This ground was dealt with by her Honour at [34] to [37]. It relates to the Tribunal's finding that the appellant would not face persecution in Sri Lanka on the basis of his political opinion. The Tribunal did not accept that the appellant was a member or active supporter of the UNP because he did not make this claim as part of his initial visa application, his evidence about his involvement with the UNP was vague and lacked detail, and the letters of support he provided from purported UNP representatives were vague, generalised and inconsistent with his limited presence in Sri Lanka during the relevant period. The Tribunal rejected the appellant's evidence on the basis of his lack of credibility on this point. So long as the Tribunal's findings were open to it, no error is demonstrated. Its findings were clearly open.

58    The appellant has not demonstrated any basis on which her Honour erred in her consideration of this aspect. This ground is also rejected.

(l)    There was apprehended bias in the way the Tribunal questioned the appellant

59    This ground was dealt with by her Honour at [38] to [41]. As I have said, her Honour both read the transcript of the hearing and listened to a recording of the hearing and observed at [41]:

The Tribunal's questioning during this passage, and the entire hearing, was entirely reasonable. The Tribunal member was gently spoken and she remained calm and composed throughout the hearing. Her manner and tone were exemplary. The Tribunal did not ask the same question again and again. On occasion, the Tribunal repeated a question or comment to clarify or refine a question, answer or comment. This was entirely fair and reasonable. I am unable to discern any basis for a claim of apprehended bias.

60    For completeness, I note that in the appeal book before me there was a transcript of the proceedings before the Tribunal. From my review of the transcript, her Honour’s description is accurate. The appellant has not established any basis on which it could be said that apprehended bias arose. This ground is not made out.

(m)    The Tribunal did not properly take into account the appellant's mental and emotional state

61    This ground was dealt with by her Honour at [42] to [49]. Her Honour observed that the Tribunal noted during the hearing that there was no documentation before it to the effect that the appellant was suffering from a psychological disorder (at [43]). Further, the Tribunal set out at [22] and [27] why it did not accept the appellant's mental state as explaining certain deficiencies in the appellant's evidence. Her Honour correctly found that the Tribunal had properly considered the appellant's mental and emotional state (at [49]).

62    It is also apparent from the Tribunal's reasons as a whole that the Tribunal concluded that the appellant was sufficiently healthy to participate in its hearings and to give evidence and respond to arguments. In those circumstances, it could not be said that the Tribunal's approach to the appellant's mental health claims denied the appellant a meaningful hearing (Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [19] to [20], [22], [30], [34] to [37] per Keane CJ; SZMSA v Minister for Immigration and Citizenship [2010] FCA 345 at [19], [28] to [35] per Gilmour J and Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37] to [41] per Gray, Cooper and Selway JJ).

63    The appellant has not identified any error in her Honour’s consideration of this aspect. This ground is also rejected.

64    I should also note one further matter relevant to how the appeal proceeded before me. Such an issue was not raised before me as a basis to postpone the hearing of the appellant’s appeal. However, some uninvited material on this topic was sent to my chambers after I had reserved my decision; I discuss this at [80].

(n)    The Tribunal should have allowed the appellant to forward the police report for its consideration

65    This ground appears to be a reformulation of the matter dealt with by her Honour at [50] to [52]. No error is established.

(o)    The Tribunal should have given greater weight to the police report and its translation

66    This ground was dealt with by her Honour at [55] to [57]. No error is established.

(p)    The Tribunal should have taken into account the accountability of the police in Sri Lanka

67    This ground was dealt with by her Honour at [58] to [59]. Her Honour noted that the Tribunal did not need to consider matters concerning the capacity of the police because the Tribunal had concluded that the appellant was not of interest to Manoj, his associates or any government connections. No error has been demonstrated in her Honour’s approach. This ground is also rejected.

(q)    The Tribunal failed to take into account two reports with regards to the criminal history of Manoj

68    This ground was dealt with by her Honour at [60] to [61]. Her Honour noted that these documents, even if overlooked by the Tribunal, could have made no difference as their content went to establishing that Manoj was a murderer, a fact that the Tribunal in any event accepted. But the articles did not support the appellant's claim that he had been a witness to murders committed by Manoj. No error is demonstrated.

69    For completeness, I note that the appellant complained of a failure to include these “reports” in the appeal book before me. This was rectified by the appellant handing me copies thereof. Her Honour’s characterisation and treatment of them was correct.

(r)    The Tribunal has not properly considered the alternative criterion in s 36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there is a real risk that the appellant will suffer significant harm

70    This issue was dealt with by her Honour at [62] to [64]. Her Honour noted that the Tribunal had considered the appellant's complementary protection claims in [41] and [42] of its reasons. No error is demonstrated.

V:    General

71    In summary, none of the grounds of appeal have been established. No jurisdictional error of the Tribunal has been established. Consequently, her Honour made no error in dismissing the application for review.

72    For completeness, there are two other matters that should be dealt with.

73    First, the appellant emphasised before me the issue that the Tribunal had not put to him the country information. But the Tribunal rejected the appellant’s claims to witnessing two murders and that he was a member of the UNP. Further, on the “returning asylum seeker” claim, the Tribunal rejected that claim on the basis of the appellant’s own evidence that he did not have a subjective fear on that basis. Accordingly, the country information had little operative relevance. In any event, country information was raised with the appellant at some point, but in the light of the Tribunal’s findings it made no difference.

74    It is apparent from my review of the transcript (from line 716) that the appellant’s representative “provided some reporting and information about the treatment of UNP supporters in Sri Lanka” to the Tribunal. The Tribunal responded that:

I’ll consider that information and those arguments further, but I wanted to indicate to you today that in reading about the treatment of UNP supporters in Sri Lanka I am aware of some isolated instances of harm and mistreatment to people with very high profile in specific areas of Sri Lanka, but I’m not aware of examples of systematic mistreatment or harm to average UNP supporters in the area in which you live. Do you have any comments about that?

75    The appellant then responded about his fear of Manoj and said that (line 726) “… Manoj because he has to take his revenge he will somehow act politically concern[ing] him, he did somehow take that his revenge in a political way…”.

76    Now the Tribunal did not find that the appellant was a UNP member, let alone that he had a high profile. Moreover, the Tribunal had rejected the appellant’s claim, underpinning the asserted fear of Manoj, namely, that he had witnessed the two murders.

77    Further, then the Tribunal (lines 811-844) referred to country information concerning some reports of Sri Lankans returning home as returning asylum seekers having some problems. But the Tribunal said that such Sri Lankans were “detained in very different circumstances from you and with different profile.” Such persons were “either Tamil or thought to be connected with the LTTE or otherwise having some existing bad profile with the Sri Lankan authorities”.

78    Then the Tribunal went on to say that:

But I may reach the view if I rely on the country information I’ve just, and the reporting I’ve just made a note of, I may find that you or reach the view that you don’t face a risk or a chance of harm for this reason. [my emphasis]

79    So, in summary, country information was raised and discussed with the appellant. Moreover, on this last aspect, it pointed against the appellant’s claims. Ultimately, it would appear that the Tribunal put it to one side. In summary, the Tribunal’s approach was fair and appropriate. The appellant’s assertions of error concerning how the Tribunal dealt with the country information have no substance. I also endorse what her Honour said at [54] of her reasons.

80    Second and finally, after I had reserved my decision, a housing caseworker, who apparently knew or was working with the appellant, emailed to my chambers various health documents relating to the appellant being a report dated 20 September 2014 from a counsellor at Foundation House, a report dated 27 May 2014 from what appears to be a GP from the Harding St Medical Centre and a letter from the Royal Melbourne Hospital referring to a visit by the appellant to the emergency department on 26 February 2015. In relation to the first two documents, it is not clear whether they were placed before the Federal Circuit Court at a time prior to her Honour’s decision. But whatever their status, they do not demonstrate that the appellant was otherwise than competent to participate in the proceedings before the Federal Circuit Court or before me.

81    The appeal will be dismissed.

Associate:

Dated: 13 March 2015