Applicant P40/2003 v Refugee Review Tribunal

REASONS FOR JUDGMENT Introduction 1 A Sri Lankan national who has a history of association with the United National Party ('UNP') in Sri Lanka, came to Australia in July 1999 with her daughter on a visitor's visa. When the visa expired six months later she applied for a protection visa on the ground that she would be persecuted because of her political opinions and activities if she were to return to Sri Lanka. Her application was refused by a delegate of the Minister for Immigration and her subsequent application for review by the Refugee Review Tribunal ('the Tribunal') was also unsuccessful. She applied to the High Court for prerogative relief as part of a representative action. Subsequently, and pursuant to directions given by Gaudron J, she, along with many others, filed a separate claim for relief in the High Court. That application was remitted to this Court. The applicant relies upon alleged failures of procedural fairness in the Tribunal's decision-making process, breach by the Tribunal of a statutory duty in relation to the documents which it had to consider and error of law on the part of the Tribunal in applying an allegedly wrong criterion for persecution under the Refugees Convention. For the reasons set out below, none of these grounds succeeds and the application will be dismissed. Factual and Procedural History 2 The applicant, who was born in 1948, is a citizen of Sri Lanka. She first came to Australia in January 1982 with her husband who was a Sri Lankan sponsored Colombo scheme student. They remained until September 1984 while her husband studied for a Master of Philosophy and a Graduate Diploma in Media Studies at Murdoch University. Their eldest daughter came with them. While in Australia the applicant gave birth to another child, a daughter, on 17 February 1984. The daughter was subsequently registered as an Australian citizen. Between 1987 and 1990 the applicant and her husband twice applied for visas to enter Australia from Sri Lanka but were refused. The husband visited Australia for 12 days from 18 June 1999 to 29 June 1999 on a short-term temporary visa. 3 The applicant applied for a short-term visitor visa on 8 July 1999. She was granted a visa accordingly and travelled to Australia with her Australian born daughter, arriving here on 28 July 1999. At the time of her departure from Sri Lanka she was employed as a Project Officer with the National Institute of Education at Maharagama. She has degrees and diplomas in Arts, Journalism, Education and Creative Writing. On 27 January 2000, while still in Australia, the applicant lodged an application for a protection visa with the Department of Immigration. 4 One of the questions to be answered on the application form for a protection visa asks why the applicant left her home country. The applicant responded that she was a supporter of the UNP which was formerly in government in Sri Lanka. Since the Peoples Alliance party ('PA') came to power in 1994 she considered she had not been given promotion due to her in her work and had not been selected for overseas and local training. She said she had been victimised and metaphorically sent to 'Siberia'. She wrote: 'NOW THAT THE GOVERNMENT HAS CHANGED, I FEEL I WILL BE POLITICALLY VICTIMIZED AND THEY WILL TAKE REVENGE ON MYSELF AND MY FAMILY ...' Asked on the form what she feared might happen if she returned to Sri Lanka she said she had been subject to 'disgrace, political victimization, humiliation and persecution by ... political opponents...'. She claimed that her support and electoral work for the UNP, especially in recent provincial council elections, and her association with UNP politicians had caused her to make enemies in her area. Members and supporters of the PA had harassed her and caused damage to her property. They had warned her not to have any dealings with the UNP. 5 The applicant said she had received telephoned death threats during the 1994 general election. She said she was 'a strong and ardent supporter of the UNP and was identified as such by members of the community'. She said she could not rely on the police or the authorities for protection. Her complaints to them fell on deaf ears. She also spoke of the high levels of violence in Sri Lankan elections. The applicant claimed that if she returned to Sri Lanka there was a real chance she would suffer persecution and not be able to rely on the government for protection. 6 A delegate of the Minister for Immigration considered that the harm which the applicant said she feared (albeit somewhat non-specifically) was of sufficient gravity to constitute persecution for the purposes of the Refugees Convention. He also found that she was asserting a Convention ground for the apprehended harm, namely her political opinions. The delegate found, however, that the promotional difficulties of which the applicant complained were more in the nature of discrimination than persecution. For various reasons he thought that she had embellished or fabricated her claims and that she was not of sufficient political profile to attract the attention which she alleged. He concluded that she had no well-founded fear of persecution for a Convention reason and on 20 April 2000 declined her application for a protection visa. 7 In the delegate's reasons for decision he made reference to independent country information. In Part B of the reasons he listed documentary evidence before him which comprised some 12 items including the Departmental file and a number of reports and articles about Sri Lanka. 8 On 22 May 2000, the applicant applied to the Tribunal for a review of the delegate's decision. On 23 May 2000, a Deputy Registrar of the Tribunal sent her a letter saying: 'We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour. The Tribunal wrote to the Secretary of the Department on 23 May asking that he forward to the Tribunal '... the documentation referred to in Section 418(2) and (3) of the Act and any written arguments to this office within 10 working days.' 9 On 25 July 2000, a Deputy Registrar of the Tribunal again wrote to the applicant stating, inter alia: 'The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.' 10 Various documents including a letter from the applicant's husband and a written submission, apparently prepared with the assistance of a migration advisor, were given to the Tribunal which conducted its oral hearing on 5 September 2000. It does not appear that the applicant was represented at that hearing. A migration advisor she had expected to attend did not because of a misunderstanding about starting times. She was permitted to make a further written submission after the hearing, which she did. 11 In her written submissions to the Tribunal, the applicant claimed that she had been heavily involved on behalf of the UNP in the 1994 General Election and the Presidential Elections held in the same year. She said she had been 'disgraced, arrested and tortured' while she was in Sri Lanka and that her fear of further arrest, torture and persecution compelled her to flee from her mother country. Her written submission before the hearing referred to case law on the concept of persecution for the purpose of the Refugee Convention. She claimed that it was not open to her reasonably to relocate in Sri Lanka. The applicant also referred to country information relating to electoral violence in Sir Lanka in 1994. She cited the US State Department Country Report on Human Rights Protection 1994, Reuters of August 1994, Agency France Presse August 1994, United Press International November 1994, Human Rights Watch World Report 1994 and a Department of Foreign Affairs and Trade Report of December 1995. More recent reports were sourced from the Sunday Times of 10 and 17 January 1999 and 14 February 1999. These related to electoral violence at Wyamba were it was said PA supporters attacked UNP people including a former Deputy Minister of Health. The applicant concluded her submission by saying: 'Therefore, the recent political violence unleashed by the PA government on the opposition UNP members the recent political tension in Sri Lanka we say that if the applicant were to return to Sri Lanka now, she would face a real chance of persecution. That it is more likely than not that if arrested she would be detained for extended interrogation and would consequently, face a real risk of mistreatment that would amount to persecution. The risk that she face include interrogation, prolonged detention, torture and death.' (sic) 12 At the commencement of the Tribunal hearing the member told the applicant that he had: '... considered the material that you provided to the Department and the material that you provided to the Tribunal.' He told her that during the hearing he might discuss with her information that he had regarding Sri Lanka. He said that this information might come from sources such as the Australian Government, the United States Department of State, non-government organisations or media. He said: 'If I consider that the information is particularly relevant to your situation I will discuss the information with you and give you the opportunity to comment on it.' He later referred to United States State Department Report on Sri Lanka and the observation in it that: '... the UNP participates freely in elections and that although from time to time especially at election times there may be violence associated with the elections that generally UNP supporters are not attacked by the government and its supports.' On 20 September 2000, the Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. 13 At some time after the Tribunal's decision the applicant joined a representative action brought by Mrs Nancy Lie, an Indonesian national of Chinese origin, seeking prerogative relief in the High Court against a decision of the Tribunal affirming a refusal to grant a protection visa. That action and the related representative action brought by a Mr Muin, both involved allegations of breaches of procedural fairness arising out of the failure of the delegate in each case to transmit to the Tribunal copies of documents listed in Part B of the delegate's reasons for decision refusing a protection visa. The procedural history that followed the applicant's joinder to the Lie action is set out in P33 of 2003 v Refugee Review Tribunal [2004] FCA 474 in which interlocutory decisions were made in this and other proceedings. 14 Following the judgment of the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601, the applicant filed a separate application in the High Court for an order nisi for constitutional writs on 17 June 2003. That was done pursuant to orders made by Gaudron J, which also had the effect that the application was remitted instanter to this Court. The applicant seeks certiorari to quash the Tribunal's decision, prohibition against the Secretary of the Department of Immigration and mandamus requiring the Tribunal to hear and determine the review application according to law. Grounds for Review 15 The grounds upon which the applicant seeks the relief claimed are set out in a Statement of Contentions filed on 25 September 2003. They are, omitting some particulars, as follows: 'Ground 1 The RRT committed jurisdictional [error] by failing to accord to the Applicant procedural fairness or natural justice, in that: (a) the Applicant was misled by the RRT into thinking that the Department had sent to the RRT, and the RRT had looked at, the documents referred to in the Decision Record of the Minister's Delegate as the Part B documents and the two further documents referred to in the Decision Record as Document No CX35416 and Document No CX39479, which documents were relevant to the Applicant's claim; ... (b) the RRT had in fact been sent and had looked at only one of the items referred to in (a), namely Document No 10 in the Part B documents, being 1999 Country Reports on Human Practices, released by the Bureau of Democracy, Human Rights, and Labor, US Department of State, February 25, 2000; (c) the Applicant, by reason of having been so misled, did not consider it necessary to bring to the RRT's attention the documents that the RRT had not been sent and had not looked at, and did not take steps to bring them to the RRT's attention. Ground 2 The RRT committed jurisdictional [error] by failing to accord to the Applicant procedural fairness or natural justice, in that the RRT, in reaching a decision, took into account country information that was adverse to the Applicants' claim as contained in Country Information Report CX29237 of 20/2/98, without having given the Applicant an opportunity to comment on or respond to that information Ground 3 The RRT committed jurisdictional [error] by carrying out its review otherwise than in the way required by s 424(1) of the Act, in that it did so without having all the documents that the Minister's delegate had, the Secretary of the Department having failed, contrary to s 418(3) of the Act, to give to the Tribunal all the documents referred to in the Decision Record of the Minister's Delegate as the Part B documents and the two further documents referred to in the Decision Record as Document No CX35416 and Document No CX39479. Ground 4 (added by leave at the hearing) The RRT made an error of law that was material to the exercise of its jurisdiction of determining whether or not it was satisfied under s 36 and s 65 of the Migration Act 1958 that the applicant had satisfied a criterion for a protection visa. Particulars In evaluating whether the applicant had a well-founded fear of persecution for the purposes of Article 1A of the Refugee Convention the Tribunal incorrectly directed itself that the law equates persecution with "serious harm" and not with incidents of discriminatory harassment, and applied such a test.' The Tribunal's Reasons for Decision 16 The Tribunal began by referring briefly to the applicant's background, the relevant provisions of the Migration Act 1958 (Cth) and of the Refugee Convention. It also referred to High Court authority going to the construction of Art 1A(2) of the Convention, the definition of 'refugee' and the concept of 'persecution'. 17 The Tribunal set out the applicant's claims and the evidence before it. It referred to a departmental file which included the original protection visa application and supporting written submissions made by the applicant. The applicant and one witness had given oral evidence to the Tribunal. In reviewing the evidence and the claims the Tribunal focussed upon the evidence given by the applicant at the hearing. It also considered some country information. It referred to the 1999 Country Reports on Human Rights Practices released by the Bureau of Democracy, Human Rights and Labor of the US Department of State dated 25 February 2000. This gave an overview of recent Sir Lankan political and electoral history. It referred to violence which marked the period prior to the December 1999 presidential elections in which six persons were killed and in which there was an unsuccessful assassination attempt on the President. The report referred to the LTTE insurgency. The government was said generally to respect the human rights of its citizens in areas not affected by insurgency. The report observed that citizens have the constitutional right to change their government through periodic multi-party elections and this right was exercised in 1994 when the PA coalition ended the 17 year rule of the UNP. The elections were characterised as 'generally free and fair but... marred by voting irregularities and violence'. 18 The Tribunal also referred to country information report CX29237 of 20 February 1998 in which it was said that the influence of the UNP in local politics had waned since the 1997 local government elections as it had lost many of the councils it previously held. The report noted that the UNP had won the most important local council in Sri Lanka which was the Colombo Municipal Council. Despite its loss of council seats elsewhere it did well on percentage votes, obtaining 41% of the vote. In opposition the UNP was said to continue to have political influence, having 95 of the 225 seats in the National Parliament. 19 Under the heading 'Findings and Reasons' the Tribunal focussed largely upon the credibility of the applicant's claims. It found that her husband occupied an important official position in Sri Lanka and that her two Sri Lankan daughters are currently living there with him. The Tribunal accepted that the applicant had suffered some discrimination in her position with the National Institute of Education because of her support of the UNP. It found, however, that she had retained her position until she failed to return to Sri Lanka when her leave finished and was unsuccessful in her application for further leave. A letter from the Assistant Director General of her Institute dated 9 July 1999 said she would be able to hold the same position on her return to the country. The Tribunal found that discrimination of the kind suffered by the applicant did not constitute persecution because it was not of sufficient seriousness. In this respect it said: 'The Tribunal notes that the Applicant was employed for a considerable period of time: Ye Heng v MIMA (unreported Fed Ct Tamberlain J 20 at 98) (sic). The Tribunal has insufficient material available to it to determine whether the failure to grant the last leave application constituted discrimination for reason of her political opinion. The Tribunal has insufficient material available to it to determine whether the Applicant's failure to obtain promotions or further leave was the result of discrimination because of her political opinion.' The Tribunal rejected a statement by the applicant that she had not intended to remain in Australia after the expiry of her visitor's visa. This rejection was made in the light of her original attempt to get a year's leave before coming to Australia and her inability to explain what she intended to do when her visa expired. 20 The fact that the applicant had left her two non-Australian daughters and husband in Sri Lanka was considered by the Tribunal to be significant when assessing her claimed fears. The fact that he had not completed a bond period in respect of a scholarship or that he would be accused of running because he had kept company with Tamils did not explain why he and the children remained, particularly when the applicant's claims indicated that he was the primary focus of threats because of his visits to Tamil areas and his unwillingness to label all Tamils as terrorists. The Tribunal said it was entitled to conclude that the applicant and her husband had been concerned that a visitor's visa would not have been granted if all three children travelled with her. 21 The Tribunal accepted that there had been a rape and murder of female occupants of a house in the area in which the applicant and her husband lived and that her house was burgled while they were away but there was no material to connect these incidents to the UNP views of both households. Police were able to recover some of the goods burgled and the Tribunal regarded this as evidence of the fact that they investigated the robbery. 22 The country information relating to the position of the UNP in Sri Lankan politics showed it still had influence. This, and her husband's prominent position, would ensure that they as Sinhalese would receive State protection. The Tribunal did not accept the applicant's claims about harassment and property damage by PA supporters because of her UNP support. The applicant had, in a written submission, referred to being 'disgraced, arrested and tortured'. The Tribunal did not accept this claim of unspecified torture. It was not made until after the hearing and was not credible particularly given her husband's failure to mention it in his letter dated 10 August 2000 or his letter of September 2000. The Tribunal accepted the applicant's witness' evidence that her husband had said he did not want the applicant to return because of the war-torn situation in Sri Lanka. The Tribunal preferred this explanation rather than the applicant's claims as the reason she wanted to remain in Australia. The Tribunal said it accepted that the family might have concerns for their welfare because of the war-torn situation and violent incidents such as the rape of people in their area. In this situation they might well wish to establish a foothold in Australia and reassess the situation in Sir Lanka from time to time while the husband served out his bond. Having regard to all the circumstances and in particular the applicant's delay in applying for a protection visa and the fact that the rest of her family remain in Sri Lanka, the Tribunal found she did not have a well-founded fear of being persecuted for a Convention reason if she were to return there. The Evidence 23 There was an Agreed Statement of Facts which essentially covered no more than the procedural history already set out (Exhibit 1). The applicant relied upon her own affidavits sworn on 17 June 2003, 5 December 2003 (as to pars 1 to 9 and 22 only) and 4 February 2004 (less the final sentence). Also read was the affidavit of her counsel, Ms Price, exhibiting an extract from the transcript of the Tribunal hearing and Country Information documents taken from Part B and other documents mentioned in the delegate's reasons for decision. Counsel tendered a copy of documents on the departmental file and the Tribunal file for the purpose of establishing that the Part B Country Information documents were not on the Tribunal file (Exhibit 2). 24 The respondents relied upon the affidavits of an officer of the Department, Ms Janine Murfet, sworn 1 June 2004 and 11 June 2004, relating to the accessibility of various of the Part B Country Information documents by the Tribunal through its database known as CISNET and/or by way of inter-library loan from the Department. In addition the respondents relied upon two affidavits of Ms Ling, a solicitor employed by the Australian Government Solicitor exhibiting various documents including the transcript of the hearing before the Tribunal. These affidavits were sworn on 7 January 2004 and 25 June 2004. 25 As appears from the Tribunal file, and is not in dispute, copies of the Part B documents comprising Country Information (Items 4 to 12) were not provided to the Tribunal by the Secretary of the Department. They were however described with sufficient particularity in the delegate's reasons that they could have been requested from a library or obtained from a computer database if held or stored in one or other of those locations. I am satisfied from the evidence of Ms Murfet that the items listed in Part B with a 'CX' number were accessible to the Tribunal from its computer database at the time of its decision. These are items 7, 8, 9, 11 and 12 and two documents otherwise referred to in the delegate's decision. 26 In her affidavit of 17 June 2003, the applicant said that she was misled by the Tribunal's letter of 25 July 2000 into believing that the Tribunal had considered all the evidence, including the Part B documents listed in the delegate's reasons. Had she known that the Tribunal had not considered all the information listed in Part B she would have drawn the matter to the Tribunal's attention. It was the case however, as appeared from the applicant's affidavit of 4 February, that she was not aware of the contents of the documents before the delegate when he made his decision to refuse the application for a protection visa. She was given notice of those documents in the delegate's reasons for decision. She disclosed an ability, through her migration advisor, to access country information documents of that character by referring to a number of such documents in her own written submissions to the Tribunal. Ground 1 27 In any case involving an allegation of procedural unfairness it is necessary to have regard to the particular statutory context in which the impugned decision is made and the factual circumstances attending the decision. It is necessary also to have regard to whether, and to what extent, the alleged failure in the decision-making process has resulted in practical unfairness. The latter requirement is perhaps just another way of saying that unfairness which amounts to jurisdictional error is not merely some formal defect in process, but something which has gone wrong and has given rise to a substantive defect which could have affected the decision taken. 28 The present case, in my opinion, does not disclose any procedural unfairness on the basis alleged in ground 1. There are two reasons for this. The first, irrespective of whether the applicant was misled by the Tribunal's letter, is that the Tribunal's decision turned critically upon its view of the characterisation and in parts the credibility of the applicant's claims and evidence. Its views adverse to the applicant for the most part turned upon the plausibility of her story. It also turned in part upon its characterisation of some of her claims as relating to non-persecutory conduct. In my opinion, her claims were weak and the Tribunal was right to reject them for the reasons it did. Its decision was not so finely balanced on the credibility point that any general country information could have made a difference to it. 29 Moreover, there was nothing in the particular country information in the Part B documents that was of such a favourable character that one could say it could have made a difference had it been pointed out to the Tribunal. This is, of course, on the assumption that the Tribunal did not have regard to any of the country information materials in Part B. The 'favourable' aspects of the Part B and other documents exhibited to Ms Price's affidavit and identified by her in her oral submissions, evidenced, inter alia, election-related violence against UNP supporters and other persons. There were reports of violence against PA supporters and an assassination attempt upon the PA President. The Tribunal referred in its reasons to evidence of election-related violence and evidently accepted that it occurred. There was nothing in the material which was able to be pointed to as capable of reinforcing the credibility of the applicant on the critical areas in which the Tribunal found against her or otherwise reasonably capable of leading to a different outcome. In essence, in my opinion, the defect in process in this case is formal rather than substantive. It could not have affected the outcome. The first ground must fail. Ground 2 30 The second ground complains of the Tribunal's reference to what was said to be adverse material not disclosed to the applicant before the Tribunal made its decision. This was the Country Information Report CX29237 which the Tribunal cited as evidence of the ongoing influence of the UNP in national and municipal politics albeit that influence had waned since 1997. As counsel for the respondents pointed out, the information contained in this document was not new and apparently not controversial. The applicant did not give any evidence indicating what, if anything, she could have put in opposition to the Tribunal's reliance on this Country Information Report. 31 The applicant's case of apprehended persecution was put fully to the Tribunal in written submissions and her oral evidence. It does not appear from the Tribunal's findings and reasons that its reference to the ongoing influence of the UNP in national and municipal politics played a major part in its decision to reject the applicant's claims. As noted above, that rejection flowed from the Tribunal's characterisation of some of the conduct complained of as non-persecutory and its non-acceptance that other aspects had occurred. In my opinion this ground of procedural unfairness also fails. Ground 3 32 This ground turns upon the operation of ss 418(3) and 424 of the Migration Act as they stood at the time of the Tribunal's decision. Section 418 requires the Secretary of the Department to be notified by the Registrar of the Tribunal of the making of an application for review (s 418(1)). The Secretary must, within 10 working days, give the Registrar copies of a statement about the decision under review that sets out the reasons for the decision (s 418(2)). Section 418(3) then provides: '418(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.' 33 Section 424 deals with review on the papers and provides, inter alia: (1) If, after considering the material contained in the documents given to the Registrar under sections 418 and 423, the Tribunal is prepared to make the decision or recommendation on the review that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence.' 34 In the present case the delegate's reasons for decision identified with particularity the country information documents listed in Part B to which he had had regard. It was positively established through the evidence of Ms Murfet that a number of those documents were accessible to the Tribunal through its computer database. It was not shown that any of them were not accessible either through CISNET or the relevant departmental library. Nor was it shown that any of them could have made any difference to the outcome had it not been seen by the Tribunal. 35 In order to succeed on this ground it would be necessary for the applicant to show that there had been a failure to comply with s 418(3) and somehow that failure gave rise to jurisdictional error on the part of the Tribunal vitiating the decision to affirm the rejection of the protection visa. Section 418 imposes an obligation on the Secretary that does not in terms condition the powers of the Tribunal. It provides an administrative process for the transmission of documents to the Tribunal. Section 424 is facultative in that it authorises the Tribunal to make a decision favourable to an applicant on the papers. It has nothing to say about the subsequent review process in the event that the Tribunal is unable to make a decision favourable to the applicant on the papers. In my opinion, it is drawing too long a bow to construct out of ss 418 and 424, as a condition upon the exercise of the Tribunal's decision-making power after an oral hearing, compliance by the Secretary with s 418(3) of the Act. 36 As Sackville J said in Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 (at [32]): '... even if the Secretary had failed to comply with s 418(3) of the Migration Act, this would not establish that the RRT's decision was without legal effect. That is because the Secretary's compliance with s 418(3) of the Migration Act was not a precondition to the exercise of the RRT's review functions and there was no obligation on the RRT to consider the documents described in s 418(3) as part of the review process.' An appeal against his Honour's decision was dismissed, the Full Court having reviewed his reasons including those relating to s 418(3), said that the approach taken by his Honour was correct for the reasons his Honour gave - S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125. 37 In any event, in the present case, I would infer that documents to which the delegate had access and which the delegate had identified with particularity in his reasons would also have been accessible to the Tribunal from sources other than the database such as the departmental library. And as I have already observed in the context of the natural justice ground, it has not been shown that anything turned upon the failure, if there were a failure, by the Tribunal to consider any of the country information documents in Part B. Ground 4 38 Ground 4, which was added by leave at the hearing, complained, in effect, that the Tribunal adopted an erroneous test of persecution for the purpose of the definition of 'refugee' in Art 1A(2) of the Refugees Convention. 39 The applicant relied in part upon statements made by the Tribunal member at the hearing that: (a) Persecution is a serious form of harm or punishment and this is the basic law it had to apply in making its decision; (b) The past events faced by the applicant in Sri Lanka were different from 'facing the threat of serious harm'. In its reasons for decision under the heading 'FINDINGS AND REASONS' the Tribunal said: 'The Tribunal finds that discrimination of the kind suffered by the Applicant does not constitute persecution because it is not of sufficient seriousness.' It is important to bear in mind that in making this comment the Tribunal was referring to discrimination relating to 'lack of paid scholarships for overseas study and training courses in Sri Lanka'. Against that discrimination the Tribunal had found the applicant retained her position in the National Institute of Education until she failed to return to Sri Lanka when her leave finished and she was unsuccessful in her application for further leave. In this context, the observation that the discrimination did not constitute persecution because it was not of sufficient seriousness, does not reflect an error of law on the part of the Tribunal. It rather reflects a characterisation of a form of discrimination which could hardly be said to be persecutory in any relevant sense for the purposes of the Refugees Convention. It is also important to note that the Tribunal found that the applicant had been employed for a considerable period of time. It had insufficient material available to it to determine whether the failure to grant the last leave application was discrimination for reason of her political opinion. Nor did it have sufficient material to determine whether her failure to obtain promotions or further leave was the result of discrimination because of her political opinion. When these comments are taken into account it may be seen that the discrimination which was found not to amount to persecution was only that which related to the lack of paid scholarships. 40 Further in its reasons the Tribunal said (at 11): 'The Tribunal finds that there is no information before it to show that Applicant's Tamil Christian name would cause or contribute to any serious harm being suffered by her. The Tribunal does not accept the Applicant's claims regarding harassment and property damage by PA supporters because of her UNP support.' In my opinion this is not to be taken as the application of an excessively high threshold test for persecution. Rather, it is a factual conclusion about the effects of the applicant's Tamil Christian name. In the context in which it appears, in my opinion this discloses no error of law and no jurisdictional error. Ground 4 therefore also fails. Conclusion 41 For the preceding reasons all of the grounds fail and the application must be dismissed with costs. I express the thanks of the Court to Ms Price for the careful and comprehensive argument which she advanced on a pro bono basis. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.