SZSMF v Minister for Immigration

[2013] FCCA 273

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMF v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 273

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal misconstrued the “real chance test” in considering if the applicant’s fear was well founded – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

Cases cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)
MIMA v Yusuf ( 2001) 206 CLR 323
Applicant WAEE v Minister for Immigration Multicultural and Indigenous Affairs (2003)75 ALD 630
Chan Ye Kin & Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Appellant S394/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant: SZSMF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 27 of 2013

Judgment of: Judge Emmett

Hearing date: 26 April 2013

Date of Last Submission: 26 April 2013

Delivered at: Sydney

Delivered on: 22 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Patrick Reynolds

Solicitors for the Applicant: Ms Pooja Khatri (Fragomen)

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Ms Arunima Lal (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 27 of 2013

SZSMF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 4 December 2012 and handed down on 5 December 2012 (“the Tribunal”).

2. The applicant claims to be a citizen of Sri Lanka and of Christian faith and Sinhalese ethnicity.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the rirst respondent and a summary of the Tribunal’s review and decision.

Background

1. The applicant arrived in Australia on 11 April 2012 having departed illegally from Sri Lanka as an irregular maritime arrival without a passport.

2. On 30 June 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

3. On 1 October 2012, the delegate refused the applicant’s application for a protection visa.

4. On 17 October 2012, the applicant lodged an application for review of the delegate’s decision by the Refugee Review Tribunal.

5. On 5 December 2012, the Tribunal affirmed the decision of the delegate not to grant a protection visa.

6. On 9 January 2013, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. The applicant provided a statutory declaration in support of his protection visa application in which he stated as follows:

   a)He is a 29 year old Christian Sinhalese male citizen of Sri Lanka.

   b)In about 2010, he joined the United National Party (“UNP”). He joined the party because of his family’s history of supporting the UNP.

   c)He assisted a Member of Parliament, Mr Perera, with his political campaign. In April 2010 when the Mr Perera won a seat in the Puttalam District, he participated in the victory celebrations and rallies.

   d)In June or July 2010 he was informed by Mr Perara that United People’s Freedom Alliance (“UPFA”) members were looking for him. He was advised to go and hide. In about August or September 2010, members of the UPFA came in search of him at his family home.

   e)He went into hiding at his uncle’s house. After he moved out of his family home, the UPFA members came to his house in search of him on about four or five occasions.

   f)In mid 2011, he learnt that UPFA members had tried to find out which boat he was working on.

   g)He feared that he would be seriously physically harmed, abducted and detained or killed. He also feared that due to his problems with the UPFA, his family might be harmed.

The delegate’s decision

1. On 13 July 2012, the applicant attended an interview with the delegate.

2. On 1 October 2012, the delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention.

3. The delegate did not accept that UPFA members searched for the applicant  after the April 2010 elections. The delegate was not satisfied that the applicant had a political profile that would attract such attention.

The Tribunal’s review and decision

1. The applicant provided written submissions prepared by his representative in support of his review application.

2. On 13 November 2012, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 November 2012 to give oral evidence and present arguments.

3. On 28 November 2012, the applicant attended the Tribunal hearing and gave evidence.

4. The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

5. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “C. THE TRIBUNAL’S DECISION

   18. The Tribunal’s reasons appear at CB229[87] to CB236[115].

   19. The Tribunal accepted that the Applicant’s family had a history of supporting the UNP, that the Applicant had joined the UNP and that he had supported the UNP in past elections (including campaigning for Mr Perera).  It also accepted that the Applicant was warned to leave an area when putting up posters because the UPFA members were on their way, and that he had a verbal exchange with Basil on the day of the election (CB229[90]-[91]).

   20. However, the Tribunal had difficulty accepting that some months after the election, people from the UPFA came looking for him at his home on multiple occasions.  Both Mr Perera and his opponent won seats in the election and the Applicant on his account was simply an ordinary campaign worker.  It was difficult to accept that he would be pursued two years later after the election based on his involvement as an ordinary campaign worker (CB230[92]-[93]).

   21. The Tribunal accepted that violent incidents occurred around the time of elections in Sri Lanka and that there were “numerous cases of police arresting people for putting up or simply possessing posters critical of the government”.  However, prior to 2010, the Applicant only supported the UNP by attending meetings.  The Tribunal accepted that upon his return, he may be involved in campaigning for Mr Perera or the UNP at future elections but (CB230[94]):

   “having regard to the very large number of people involved in election campaigns in Sri Lanka, I consider that the chance of any individual UNP campaign worker like the applicant being affected by election-related violence or, for example, being arrested for putting up posters critical of the government, is very remote.”

   22. The Tribunal went on to accept that the ‘space’ for political debate and alternative views in Sri Lanka is restricted and opposition journalists may have been harassed.  However, it did not consider that the Applicant’s situation as an ordinary campaign worker was comparable to that of persons perceived to be active or influential in opposition to the Sri Lanka Government or to that of journalists or others expressing political opinions opposed to the government in contexts other than merely by virtue of participating in election campaigning (CB231[95]).

   23. It also considered that the lack of campaigning on the part of the Applicant after April 2010 was a consequence of his work rather than fear of the UPFA (CB96-97).

   24. The Tribunal did not give weight to the letter from Mr Perera and the parish priest because of their generality.  The Tribunal, rather, gave greater weight to the difficulty it had accepting the Applicant’s claims (CB232[99]-[100]).

   25. The Tribunal also rejected the claim that the Applicant feared persecution as a failed asylum seeker or an illegal departee (CB232[101]-[105]), or on the basis of religion (CB234[107]-[109]).

   26. The Tribunal also rejected the claim for complementary protection (CB235[112]-[115]).”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Reynolds, of counsel.  

2. Mr Reynolds confirmed that the applicant relied on the ground contained in an amended application filed on 13 March 2013 as follows:

   “1. The second respondent (‘Tribunal’) engaged in jurisdictional error by misconstruing or misapplying the applicable law or asking itself the wrong question.

   Particulars

   a. The Tribunal accepted that the applicant had joined the UNP and had engaged in various campaign related activities for various candidates (such as by arranging meeting venues, attending meetings and rallies, putting up posters and going from house to house requesting votes for his candidate). It also accepted that he and other campaign workers had been warned when putting up posters and he had been involved in a verbal exchange on the day of a previous election. The Tribunal also accepted that, if the applicant returned to Sir Lanka, he might be involved in campaigning for the UNP or various candidates at future elections. Further, the Tribunal accepted that violent incidents occurred around the time of the elections in Sir Lanka and that there were numerous cases of police arresting people for putting up or simply possessing posters critical of the government.

   b. The Tribunal, however concluded that the applicant’s chance of being the subject of election related violence or being arrested for putting up posters critical of the government at a future election was ‘very remote’, ‘having regard to the very large number of people involved in election campaigns in Sri Lanka’.

   c. In view of the findings in subparagraph (a) and (b), the Tribunal engaged in jurisdictional error in that it failed to correctly construe and apply the ‘real chance’ test but, rather, considered the balance of the probability of the applicant being subjected to election related violence or arrest in the future. ”

Application to rely on further ground

1. At the commencement of the hearing, Mr Reynolds sought leave for the applicant to rely on a further proposed ground of review. That ground is as follows:

   “2. The Tribunal engaged in jurisdictional error by failing to consider a claim or component integer thereof, or by failing to take into account a relevant consideration.

   Particulars

   (a) The applicant claimed (CB82[15]) that locals in the Puttalam District had identified the applicant and other UNP supporters while they were publicly  supporting Mr Perera in his election campaign and that they had given their names (including the applicant’s name) to the UPFA (Identification by Locals). The Identification by Locals was a claim, component integer thereof or relevant consideration.

   (b) When dealing with the applicant’s claims, the Tribunal failed to consider or take into account the Identification by Locals, thereby failing to consider or take into account a claim, component integer thereof or relevant consideration.”

2. Leave was opposed by the first Respondent on the basis that the ground had no reasonable prospect of success.

3. In support of the leave application, Mr Reynolds, submitted that the Tribunal had failed to consider a claim by the applicant that he feared harm because his name had been collected by the UPFA as a UNP supporter. Mr Reynolds submitted that the Tribunal dealt with the Applicant only as an undifferentiated UNP campaign worker without referring to him having been identified on a list as a UNP supporter.

4. In support , Mr Reynolds referred the Court to  MIMA v Yusuf ( 2001) 206 CLR 323 where Gleeson J said at [5]:

   “When the tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the tribunal, and will be understood by a reader, including a judge reviewing the tribunal’s decision, in light of the statutory requirements contained in s430. The tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that , in turn, may indicate that the tribunal did not consider the matter to be material.”

5. McHugh, Gummow and Hayne JJ stated at [69]:

   “It is not necessary to read s430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s430 as obliging the tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the tribunal. It ensures that a person who is dissatisfied with the result at which the tribunal has arrived can identify with certainty what reasons the tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the tribunal. It may reveal jurisdictional error. The tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.”

6. Mr Reynolds submitted that the Court should infer that the Tribunal failed to consider or take into account the applicant’s identification by locals on a UPFA list of UNP supporters and to conclude therefore that the Tribunal engaged in jurisdictional error.

7. The applicant’s statement in relation to having been placed on a list was made by him in a statutory declaration dated 30 June 2012 provided in support of his protection visa application. That statement is as follows:

   “15. In about June or July 2010, about one to two months following elections, I was informed by Niroshan that UPFA members were in search of me and other UNP supporters. The UPFA members had collected the UNP supporters names – including mine – from locals in the Puttalam District who had seen us publically supporting Niroshan in his election campaign. Niroshan advised me to go and hide. Niroshan was not being targeted by the UPFA because he had already won himself a seat in Parliament.”

8. A fair reading of the applicant’s complaints to the Tribunal make clear that the nub of his complaint is that UPFA members searched for him after the 2010 election. In relation to that claim, the Tribunal stated as follows:

   “As I put to the applicant, I do not accept that people from the UPFA or from the government would be pursuing him two years after the election based on his involvement in campaigning for Mr Perera as an ordinary campaign worker. I do not accept that, as the applicant claims, Mr Perera informed him in June or July 2010 that UPFA members were searching for him and other UNP supporters, nor that in around August 2010 some people from the UPFA came looking for him at his home, nor that they have come to his home looking for him on four or five occasions since then. I do not accept that the applicant has learned from Mr Perera that two other UNP members have been taken captive by the UPFA and that their whereabouts remain unknown nor that in about the middle of 2011 the applicant learned that the UPFA members had tried to find out which boat he was working on. I do not accept that there is a real chance that the applicant will be persecuted by people from the UPFA or from the government because of his involvement in campaigning for Mr Perera, his support for the UNP or his membership of a family which has a long history of supporting the UNP if he returns to Sri Lanka now or in the reasonably foreseeable future.”

1. It is well accepted that it is not necessary for a Tribunal to refer to every piece of evidence and every contention made by an applicant in the Tribunal’s written reasons. There is a distinction between a Tribunal failing to refer to evidence which, if accepted, might have led to a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish that an applicant had a well founded fear of persecution for a Convention reason (see Applicant WAEE v Minister for Immigration Multicultural and Indigenous Affairs (2003)75 ALD 630 at [46]).

2. Having rejected the applicant’s claim to have been the object of search by UPFA members following the election in 2010, the Tribunal’s finding could not have been affected by whether the applicant was placed on a list or not placed on a list. The applicant’s claim was that the UPFA searched for him after the election. The Tribunal was not satisfied about the veracity of that claim. The applicant’s statement that his name was placed on a list is not by itself a relevant consideration to the issue before the Tribunal as to whether or not the applicant had a well founded fear of persecution for a Convention related reason.

3. A fair reading of the evidence and material before the Tribunal, including the applicant’s statutory declaration, does not suggest that the applicant’s assertion that his name was placed on a list, following the election, was a central component of his fear. Even if it was a central component at the time he made his statutory declaration, the way in which the applicant conducted his case thereafter suggests that such a claim was abandoned. The applicant’s claim that UPFA members were searching for him after the April 2010 elections was rejected by the Delegate without mention of the applicant’s assertion that his name was placed on a list. Thereafter, that assertion was not raised or taken up by the Applicant before the Tribunal. The issue raised and taken up by the applicant before the Tribunal was his claim that UPFA members searched for him after the April 2010 elections.

4. The Tribunal’s decision record makes clear that the Tribunal put to the Applicant its concerns about his evidence of having people from the UPFA looking for him after the 2010 election. The Tribunal noted the applicant’s response. Nowhere in the applicant’s response does he appear to refer to the fact that his name was on a UNP supporters’  list as part of his explanation.

5. Similarly, the Tribunal noted that it put to the applicant its concerns about his claim that people from the UPFA or from the government would be pursuing him two years after the election based on his involvement in campaigning for Mr Perera as an ordinary campaign worker. The Tribunal noted the applicant’s representative’s response that it was not necessary to hold a significant political profile to experience persecution for reasons of political opinion in Sri Lanka. Again, there was no mention that the applicant was on a list, such as to elevate it to a distinct claim for the applicant’s fear. It was no more than a piece of evidence given by the applicant in support of his claim of being searched for after the elections.

6. In the circumstances I am not satisfied that the applicant’s proposed second ground has sufficient prospects of success such that it is in the interests of justice that leave be granted to allow the applicant to pursue that ground.

7. Accordingly, leave was refused to the applicant to rely on proposed ground 2.

Ground 1

1. At the heart of the applicant’s complaint in ground 1, is a contention that the Tribunal misconstrued the “real chance test” in considering whether the applicant had a well founded fear of persecution if he was returned to Sri Lanka. The relevant findings of the Tribunal are as follows:

   “I accept that violent incidents occur around the time of elections in Sri Lanka. I also accept that, as referred to by the applicant’s representative at the Departmental interview, the US State Department said in its Country Reports on Human Rights Practices for 2010 in relation to Sri Lanka that there were numerous cases of police arresting people for putting up or simply possessing posters critical of the government. I consider it relevant in this context, however, that prior to 2010 the applicant was only involved in supporting the UNP by attending meetings. I accept that id the applicant returns to Sri Lanka he may be involved in campaigning for Mr Perera or the UNP at future elections, but, having regard to the very large number of people involved in election campaigns in Sri Lanka, I consider the chance of any individual UNP campaign worker like the applicant being affected by the election-related violence or, for example, being arrested for putting up posters critical of the government, is very remote. I do not accept, therefore , that there is a real chance that the applicant will be persecuted for reasons of his political opinion in support of the UNP in the context of his involvement in future election campaigns if he returns to Sri Lanka now or in the reasonably foreseeable future.”

2. In support, Mr Reynolds referred the court to Chan Ye Kin & Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”) where the court held that a fear of persecution is “well founded” if there is a real chance that an applicant for a protection visa will be persecuted for a Convention reason if he or she was to return to his country of nationality (at 398 per Mason CJ).

3. Mr Reynolds submitted that the Tribunal must assess if there is a proper foundation for the fear as distinct from assessing percentage chances. Mr Reynolds submitted that once the Tribunal had accepted that violent incidents occur around the time of elections in Sri Lanka and that the applicant may participate, the only conclusion that the Tribunal could or should have drawn was that the applicant had a  real chance of persecution if returned to Sri Lanka. Mr Reynolds submitted that the fact that the Tribunal did not so conclude demonstrates that it misunderstood the test to be applied. In other words, the Tribunal’s finding that the applicant’s risk of harm was “very remote”, and therefore the applicant’s fear was not well founded, was not open to the Tribunal on the basis of its findings.

4. Mr Reynolds submitted that in considering what “well founded fear” means, percentages are not relevant and that the Tribunal applied the percentage assessment in this case, and therefore applied a higher standard to what is meant by a “well founded fear”.

5. Mr Reynolds submitted that inherent in the Tribunal’s reasoning is a calculation of the probability of any one campaign worker being subject to the violence; and, that the risk faced by campaign workers as a whole was very low because of the overall size of the group. Mr Reynolds submitted that this reasoning offends the “real chance test” as applied by the High Court of Australia in Chan and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”).

6. The Tribunal found that if the Applicant returned to Sri Lanka he may be involved in campaigning for Mr Perera or the UNP at future elections but, having regard to the very large number of people involved in the election campaigns in Sri Lanka, the individual chance of being harmed for that reason is very remote.

7. A fair reading of the Tribunal’s decision makes clear that it applied the real chance test to the Tribunal’s finding in considering whether the applicant’s fear was well founded in circumstances where the applicant may be caught up in post election violence if he was to return to Sri Lanka.

8. I do not accept that the Tribunal misconstrued or misunderstood the ‘real chance test’. In deciding whether an applicant’s fear is “well founded”, the Tribunal must assess the likelihood that the applicant will be persecuted for a Convention related reason if he was to return to Sri Lanka. This process necessarily requires the Tribunal to engage in a degree of speculation about future events and also involves the making of findings about whether all or part of the applicant’s account of past events should be accepted (see Guo at 575). Of course, an applicant does not have to show past persecution in order to demonstrate a well founded fear. However, the fact that an applicant has been persecuted in the past for a Convention reason may ground an inference that the person subjectively fears repetition of persecution and an inference that this is well founded (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [82]).

9. I accept counsel for the first respondent’s written submission that the Tribunal undertook an “essentially individual and fact specific inquiry” in assessing whether the applicant’s fear was well founded (see Appellant S394/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473). As stated above, it is clear that the Tribunal found that the applicant’s fear was not well founded based on a number of anterior factual findings made by the Tribunal which were open to it on the evidence and material before it and for the reasons it gave.

10. A fair reading of the Tribunal’s decision record makes clear that the Tribunal’s conclusion, that because the applicant was an ordinary campaign worker and not persecuted in the past in the course of campaigning and because the applicant would be only one of a large number of people who would be involved in campaigning in the future, the chance that the applicant would be caught up in any election related violence in the future would be remote. Prior to that finding the Tribunal had noted particular difficulties it had with the applicant’s evidence and claims and also referred to the fact that the applicant was an ordinary campaign worker who had not assisted an opposition candidate to defeat a government candidate. The Tribunal also rejected the applicant’s evidence that Mr Perera had informed him that UPFA members were searching for him or that Mr Perera had informed him that other UNP members had been kidnapped or that the UPFA members had tried to find out the name of the boat on which he was working or had come to the applicant’s home looking for him on a number of occasions.

11. In the circumstances, there was no error in the way the Tribunal considered whether the applicant’s fear was well founded and the way in which it applied the “real chance test” to the findings it had made that the chance of future persecution of the applicant if returned to Sri Lanka was “very remote”. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

12. Accordingly, ground 1 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support, particularly the applicant’s representative’s written submission dated 27 November 2012. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  22 May 2013