SZSMF v Minister for Immigration, Multicultural Affairs and Citizenship

[2013] FCA 931

FEDERAL COURT OF AUSTRALIA

SZSMF v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 931

Citation:	SZSMF v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 931
Appeal from:	SZSMF v Minister for Immigration & Anor [2013] FCCA 273
Parties:	SZSMF v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1013 of 2013
Judge(s):	BUCHANAN J
Date of judgment:	18 September 2013
Catchwords:	MIGRATION – whether Refugee Review Tribunal correctly applied the real chance test in assessing whether the appellant had a well-founded fear of persecution – whether Refugee Review Tribunal failed to take into account a relevant consideration – whether jurisdictional error
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 SZSMF v Minister for Immigration & Anor [2013] FCCA 273
Date of hearing:	16 August 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Appellant:	Mr P D Reynolds
Solicitor for the Appellant:	Fragomen
Counsel for the First Respondent:	Mr M J Smith
Solicitor for the First Respondent:	Sparke Helmore
Solicitor for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1013 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSMF
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	18 SEPTEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1013 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSMF
Appellant

AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	18 SEPTEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background

1. The appellant is a citizen of Sri Lanka.  He arrived in Australia by boat on 11 April 2012 and on 30 June 2012 made an application for a protection visa.  His application was refused by a delegate of the Minister on 1 October 2012.  The appellant then applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. 

2. The decision of the RRT was given on 4 December 2012.  The RRT affirmed the decision of the delegate. 

3. The appellant then applied on 9 January 2013 to the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the decision of the RRT.  On 22 May 2013, the FCCA dismissed the application for judicial review (SZSMF v Minister for Immigration & Anor [2013] FCCA 273). The appeal to this Court is from that judgment.

   The RRT decision

4. Before the RRT, the appellant claimed to have a well-founded fear of persecution in Sri Lanka for two reasons. 

5. First, the appellant claimed to have such a fear by reason of his political opinion because: 

   ·he was a member of the United National Party (“the UNP”) in Sri Lanka;

   ·the UNP was an opposition party;

   ·he had been involved in Sri Lanka in assisting a member of the UNP in an election campaign in 2010;

   ·he had attended meetings and rallies and put up posters, and had been warned about his activities by pro-Government supporters;

   ·there had been violent incidents around the time of the elections and there were numerous cases of police arresting people for putting up or possessing posters critical of the government; and

   ·if he returned to Sri Lanka he might be involved in campaigning for the UNP in the future. 

6. Secondly, the appellant claimed to have a well-founded fear of persecution as a failed asylum seeker if returned to Sri Lanka. 

7. Each of those claims was rejected by the RRT. 

8. As to the first aspect of the appellant’s claim to fear persecution, the RRT said: 

   94.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 if 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 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.  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. 

   and: 

   100.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. 

9. As to the second aspect of the claim to fear persecution, the RRT said: 

   101.In the statement accompanying his original application the applicant said that he also feared harm as a failed asylum-seeker if he returned to Sri Lanka.  As I put to the applicant, failed asylum-seekers returned from Australia are interviewed at the airport by various government departments.  The Australian Government has arrangements to be present when returnees from Australia are interviewed.  The Australian Department of Foreign Affairs and Trade has said that returnees do not appear to be subject to harassment or mistreatment and that failed asylum-seekers are not treated differently from other returnees.  The names of returnees are checked against police and security databases and if there are no outstanding warrants for a person’s arrest the person will be allowed to leave the airport (DFAT Country Information Report No. 09/75, dated 14 October 2009, CX234989; DFAT Country Information Report No. 10/58, dated 20 September 2010, CX249694; R.1; DFAT, ‘Sri Lanka: RRT Country Information Request – LKA40999’, 19 October 2012, CX297471; Danish Immigration Service, Human Rights and Security Issues concerning Tamils in Sri Lanka – Report from Danish Immigration Services fact-finding mission to Colombo, Sri Lanka, 19 June to 3 July 2010, Copenhagen, October 2010, pages 52 to 54; UK Home Office, Sri Lanka – Country of Origin Information (COI) Report, 7 March 2012, paragraphs 25.29-25.35, 25.37-25.39, 25.42-25.44). 

   and: 

   106.…  I accept that, as referred to by the applicant’s representatives in their submission dated 27 November 2012, it has been reported that a number of returnees from Australia were arrested when they arrived at the airport in Colombo in November 2012.  However, having regard to the information referred to in paragraph 101 above, in the absence of further information about these arrests I do not accept that these returnees were arrested because they were failed asylum-seekers or because of their illegal departure from Sri Lanka rather than, for example, because there were outstanding warrants for their arrest.  Having regard to the information referred to in paragraph 101 above, I do not accept that there is a real chance that the applicant will be detained at the airport, harassed or mistreated or otherwise persecuted because he is a failed asylum-seeker or for reasons of his real or imputed political opinion opposed to the government (because of his support for the UNP, his illegal departure from Sri Lanka or his having applied for asylum in Australia) if he returns to Sri Lanka now or in the reasonably foreseeable future. 

   Alleged errors by the RRT

10. The appellant’s challenge in this Court to the assessment by the RRT raised two issues for consideration.  The first argument concerned the way in which the RRT had assessed whether the appellant had a well-founded fear of persecution in Sri Lanka.  The second argument was based on the contention that the RRT overlooked, and failed to deal with, an important part of the appellant’s claim. 

11. I will defer discussion of the second argument for the time being because it requires attention to the way in which it was dealt with by the FCCA.  The first argument may be addressed immediately. 

12. Written submissions on behalf of the appellant on the present appeal pointed out that in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, the High Court held that an applicant might show a well-founded fear of persecution by showing that there was a real chance of persecution. Mason CJ said the chance might be less than 50%. McHugh J said it might only be 10%. However, remote or far-fetched possibilities were to be excluded.

13. In the passages extracted above, the RRT assessed the possibility that the appellant might be persecuted as not a real chance and, at one point, as remote. 

14. The submissions for the appellant also pointed out that in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”), the High Court cautioned that the notion of a real chance should not be substituted for the test of whether a fear of persecution was well-founded, as required by the Refugee Convention.  In Guo, the High Court said (at 572):

    …Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

15. The appellant argued that the RRT had engaged in a form of calculation which was not faithful to the requirement to assess whether the appellant had a well-founded fear of persecution.  In my view, this characterisation of the RRT’s approach should not be accepted.  The RRT was obliged to make an assessment about whether the appellant had a well-founded fear of persecution.  It plainly assessed that the risk of persecution of the appellant was too slight to represent a real chance of persecution and that any fear of persecution which the appellant might subjectively hold was not well-founded.  It is not the function of this Court, and was not the function of the FCCA, to make an assessment about those matters.  

    The grounds of appeal

16. When the appellant sought judicial review of the decision of the RRT in the FCCA, it became necessary to show that the RRT had made a jurisdictional error.  The appeal to this Court is also confined by the necessity to show that the RRT made a jurisdictional error, and that the FCCA made an error in its assessment of that question. 

17. The appeal to this Court, which was filed on 11 June 2013, raised two grounds.  The first concerns the proposition that the FCCA erred in not finding that: 

    1.… 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 appellant being subjected to election related violence in the future. 

18. The second ground of appeal complains that the FCCA erred by not permitting the appellant to add an additional ground to the application for judicial review.  The application for judicial review was amended once on 13 March 2013.  On 17 April 2013, the appellant applied to add an additional ground of review but that application was rejected at the commencement of the hearing of the FCCA on 26 April 2013.  The proposed additional ground was 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 [appellant] claimed (CB82[15]) that locals in the Puttalam District had identified the [appellant] and other UNP supporters while they were publically supporting Mr Perera in his election campaign and that they had given their names (including the [appellant’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 [appellant’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. 

    Assessment by the FCCA

19. The conclusions of the FCCA about the first ground appear sufficiently from the following paragraphs of the judgment under appeal: 

    43.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.

    …

    46.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.

    47.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.

20. The application to add the second proposed ground was assessed, essentially, as follows: 

    31.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.

    32.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.

    33.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.

    34.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.

    35.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.

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

    Assessment in this Court

1. As to ground 1 of the present appeal, I can see no error in the conclusion reached by the FCCA.  It accords with my own assessment of the appellant’s argument, as will appear from the observations made earlier in this judgment. 

2. Having regard to the findings of the RRT that the appellant had not, as he claimed, been a target of the United People’s Freedom Alliance (“the UFPA”) after the 2010 elections, the RRT was obliged to assess the question of whether any fear of persecution held by the appellant was well-founded by reference to more general circumstances.  Those circumstances included the appellant’s activities as a campaign worker, the accepted likelihood he would engage in such activities in the future and the fact, as the RRT also accepted, that violence occurs in connection with elections in Sri Lanka.  I can see no misunderstanding by the RRT of its function, the matters it should take into account or the tests it should apply when it assessed that the likelihood of persecution of the appellant as a campaign worker in the future was “very remote” and that any fear of persecution which the appellant might have on that account was not well-founded. 

3. Ground 1 of the appeal must therefore be dismissed. 

4. Ground 2 of the appeal raises a question of procedure and case management.  It involves consideration of the exercise of a judicial discretion.  The test for interference with the exercise of such a discretion is a high one. 

5. It could only have been relevant to permit the proposed ground to be relied upon if it would demonstrate jurisdictional error on the part of the RRT.  As the amendment was refused on the basis that the proposed additional ground had insufficient prospects of success, it must be taken that the FCCA effectively rejected the suggestion of jurisdictional error.  In my respectful view, that was a correct assessment.  I can detect no error of principle or analysis in the approach taken by the FCCA. 

6. The premise behind the criticism of the FCCA was that the RRT had an obligation to consider the claim because it was an essential integer or ingredient of the appellant’s claim to fear persecution.  One difficulty for the proposition is that which was identified by the FCCA.  The argument was not articulated in that way before the RRT.  It was not the subject of the initial application for judicial review to the FCCA, nor the amended application.  It was added late. 

7. The suggestion that the RRT overlooked an essential element of the appellant’s claims must therefore be closely scrutinised.  If essential, it is unlikely that the appellant and his representatives would have failed to articulate it. 

8. I have come to the view that there was no failure by the RRT to deal with the issue and that, unsurprisingly, it was not separately articulated because it was really part of a claim which received direct attention at all relevant times. 

9. In his original written statement of his claims, the appellant said: 

   15.In about June or July 2010, about one to two months following the 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 supporter’s names – including mine – from the 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 the Parliament. 

   16.In about August or September 2010, about four to five months following the elections, members from the UPFA came in search of me at my family home in [city], Puttalam District, North Western Province, Sri Lanka (“family home”).  I was not at home at the time because I was at sea fishing. 

   17.When I got home, my family told me that members from the UPFA had come to my family home in a white van, were dressed in plain clothes.  There were about six UPFA members in total and they were carrying poles and clubs.  They searched my family home and asked my family – including my mother, father and my wife – about me and my whereabouts.  My family told me that it was not safe for me to remain at home. 

   18.I decided to go into hiding at my uncle’s [name] home, which was located in [location] – a remote area of the North Western Province (“uncle’s home”).  I spent limited time at my uncle’s home as I would be at sea fishing for weeks on end.  I remained in hiding at my uncle’s home till my departure from Sri Lanka. 

   19.I learnt from Niroshan that two of the other UNP members were taken captive by the UPFA.  Their whereabouts remain unknown.  

   20.After I moved out of our family home, the UPFA members came to my house in search of me on about four or five further occasions.  Each time the UPFA members would search the house and ask my family about me.  I knew that if I had been at home, the UPFA members would have forcibly abducted me, just as they had done with the other two UNP members. 

   21.In about mid 2011, I learnt that the UPFA members had also tried to find out which boat I was working on.  I was informed by [person] – one of the employer’s that I worked for as a fisherman – that one of his other fishermen had been questioned about me and my whereabouts. 

   (I have emphasised the sentence which is now said to represent the additional element of the appellant’s claims). 

10. In written submissions sent to the RRT on behalf of the appellant, the following matters were advanced: 

    Mid-2010: Perera advises the Applicant that the UPFA is searching for him

    12.In about June or July 2010, Perera advised the Applicant that UPFA members were in search of him, [another supporter] and a small group of other UNP supporters from another area.  Perera advised the Applicant to hide.  [The other supporter] subsequently fled Sri Lanka for Italy. 

    13.      Perera knew of this risk because people in the UNP party hierarchy had received information that the UPFA were looking for these particular UNP supporters. 

    Jul-2010: UPFA members visit the Applicant’s home

    14.In about July 2010, UPFA members attended the Applicant’s home.  The Applicant was not present at the time as he was at sea fishing.  The Applicant’s parents and wife were at home.  The UPFA members were armed and searched the Applicant’s home.  The UPFA members interrogated the Applicant’s parents and wife about the Applicant’s whereabouts and threatened to abduct his wife. 

    15.Following this visit, the Applicant feared for his wife’s safety and asked her to go to stay at her parents’ house in [location].  She did so, then subsequently moved to a location near Colombo before returning to her parents’ house. 

    Dec-2010: UPFA members visit the Applicant’s home

    16.In about December 2010, UPFA members again visited the Applicant’s home.  On this occasion, only the Applicant’s parents were home.  The UPFA members intimidated his parents and told them that they were going to ‘get hold of’ the Applicant.  As a result of the stress of this the Applicant’s mother’s blood pressure rose to dangerous levels and she was temporarily hospitalised in [location]. 

    17.Owing to the actions of UPFA members, the Applicant went into hiding at the house of his maternal uncle, [name], in [location] DS.  The Applicant remained in hiding, only leaving the house to go to sea to fish. 

    18.Also in 2010, Perera advised the Applicant that two other UNP members had been taken captive by the UPFA and that their whereabouts remained unknown. 

    Mid-2011: UPFA members visit the Applicant’s workplace

    19.In mid-2011, the Applicant learnt from the owner of the boat he worked on that UPFA members had questioned one of the Applicant’s fellow fisherman, [name], about the Applicant’s whereabouts.  The Applicant also learnt that [the fisherman] had told the UPFA members of the Applicant’s whereabouts as he was a known UPFA supporter.  [The fisherman] told the UPFA which boat the Applicant worked on (the [boat’s name]).  After learning of this, the Applicant ceased working on [the boat] and subsequently gained work on another boat. 

    (I have emphasised the way in which the suggested additional element was referred to in submissions to the RRT). 

11. One element of the claims, as made by the appellant initially and developed by his representative before the RRT, was that the appellant had been specifically identified, his home and family had been located and his place of work was known. 

12. Those matters were referred to by the RRT in its assessment of the appellant’s original claims: 

    19.… He said that in June or July 2010 Mr Perera had informed him that UPFA members were in search of him and other UNP supporters and had advised him to go and hide.  He said that in August or September 2010 his family had told him that members of the UPFA had come to his home in a white van carrying poles and clubs.  He said that they had searched his home and had asked his family where he was.  He said that his family had told him that it was not safe for him to remain there. 

    20.… He said that after he had moved out of his family home the UPFA members had come there in search of him on four or five other occasions. … He said that in about the middle of 2011 he had learned that the UPFA members had tried to find out which boat he was working on. 

13. The complaint now made on behalf of the appellant is that no mention was made by the RRT that the appellant’s name had been “collected”.  It was accepted on the present appeal that there was no specific suggestion by or on behalf of the appellant that his name had “been placed on a list”, as the FCCA appeared to think. 

14. In my view, the summary of the appellant’s claims given by the RRT was a sufficient and accurate one.  The appellant’s claim was that he had been identified and searched for.  That claim was eventually rejected by the RRT in a passage which I set out earlier but which I will repeat here (in part) for convenience: 

    100.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.  … 

15. In my view, it is clear that the allegations made about those matters in the original written statement, and the submissions made about those matters by the appellant’s representative to the RRT, were rejected.  There was no separate element, which stood apart from those claims, which was not addressed. 

16. In my view, the FCCA made no error in rejecting the proposed additional ground. 

    Orders

17. The appeal must be dismissed.  It is appropriate to dismiss it with costs. 

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:       18 September 2013