consideration
32 Clearly, the Tribunal could not make an adverse finding relevant to the appellant's interests without the appellant being informed of the risk of such a finding, or unless the risk was clearly apparent. The appellant was also entitled to an opportunity to adduce evidence or to make submissions concerning that potential adverse finding. See generally Mahon v Air New Zealand [1984] AC 808 at 820-821. As Gaudron and Gummow JJ pointed out in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 109, [60] the practical content of the obligation is controlled by the relevant statutory context and the circumstances of the particular case. Counsel for the appellant did not join issue with the observation of the learned judge at first instance at [27] that unfairness which amounts to jurisdictional error is not merely some formal defect in process, but one which 'has gone wrong and has given rise to a substantive defect which could have affected the decision taken'.
33 Near the commencement of the hearing, the Tribunal told the appellant it may discuss with her information about Sri Lanka from sources such as the US Department of State and DFAT, and that if it considered the information was 'particularly relevant' to the appellant she would have the opportunity to comment on it. During the hearing, the Tribunal referred for comment to the US Department of State Report as indicating Sri Lanka has periodic multi-party elections, including in January 1999 when the UNP party won a significant number of seats, and that the UNP party participates freely in those elections. It also noted there is material showing election-related violence, but that more generally UNP supporters are not attacked by the PA party and its supporters. It did not expressly refer to CX29237 during the hearing.
34 Part of CX29237 was quoted in the Tribunal's reasons dealing with the waning of UNP influence in local politics (to February 1998) because of loss of control of many local councils, although it retained control of the most important local council the Colombo Municipal Council, and with it having 41% of the vote and 95 of the 225 seats in the National Parliament. CX29237 was not a document of which the appellant had specific notice.
35 Counsel for the appellant contended that the appellant should have been given the opportunity to comment upon CX29237 specifically, or upon the specific information it contained about UNP's seats in the National Parliament and its control of the Colombo Municipal Council. The appellant deposes to believing that the authorities would not be able to protect her from PA supporters, and had she known about CX29237 she 'would have made inquiries and requested my then migration agent to undertake research in support of my belief'. She complained she had not had the opportunity to do so.
36 In the particular circumstances, in our view, the appellant's contention must fail. The Tribunal's reasons indicate that the appellant's claim failed in part because certain politically motivated discrimination in her employment did not amount to persecution, in part because certain conduct which had occurred and which might occur in the future adverse to her was not politically motivated, in part because the appellant's claims of past adverse politically motivated consequences experienced by her were not accepted, and because the past adverse politically motivated consequences which had occurred (the anonymous threats) did not in the circumstances amount to persecution. The appellant has not sought on appeal to challenge that last-mentioned conclusion. The Tribunal positively found the appellant wanted to remain in Australia not because of her expressed fears of politically motivated persecution, but because of the war torn situation in Sri Lanka.
37 The Tribunal's reference to CX29237 immediately followed its finding that the past acts of house robbery and neighbourhood violence were not politically motivated. In effect, in addition to remarking that the police had responded to the house robbery, it drew from CX29237 that the UNP still has influence, and that together with her husband's status and that they were both Sinhalese would mean they would still receive State protection. That was a subsidiary or supplementary finding. Without it, the Tribunal's decision would have been the same. The appellant set out to satisfy the Tribunal that the neighbourhood violence was state approved and politically motivated. It did not find that. More broadly, she feared 'political violence unleashed by the PA government'. The Tribunal did not accept that. The appellant did not set out to satisfy the Tribunal that she was vulnerable to non-State politically motivated violence in circumstances where the State would not take reasonable measures to protect her, or could not provide a reasonably effective and impartial police force, which did not meet the standards of protection required by international standards: Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487; [2004] HCA 18.
38 The Tribunal drew from CX29237 simply that 'the UNP still has influence'. Counsel for the appellant did not contend that the appellant should have had drawn to her attention that proposition, but only the specific facts in CX29237 in the two respects mentioned above. As the learned judge at first instance found, both the general conclusion and the specific facts were neither new nor apparently controversial. They would be matters of public knowledge. There was, and is, nothing to suggest that the appellant could or would gainsay them.
39 In addition, it is clear that following the hearing on 5 September 2000 the appellant regarded the willingness of the Sri Lankan authorities to protect her from serious harm to be an issue. Her post-hearing submissions specifically identified the issue, although they then reverted to the assertion that the source of her claimed fear was in fact violence sponsored by the ruling PA authorities.
40 There is little in the second matter argued. The Tribunal correctly referred to the High Court decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 as explaining the extent of the threat of harm or interference with rights which may amount to persecution. In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 McHugh J at 21, [65] said that discriminatory conduct will ordinarily amount to persecution if it is:
'so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.'
41 The Tribunal is not shown to have misunderstood, or to have misapplied, that test in considering the significance of the past or prospective adverse politically motivated conduct which it accepted the appellant had been or might be exposed to in Sri Lanka. It applied an evaluative judgment to that question, and is not shown to have reached a view not reasonably open on the facts: cf Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 per Heerey J at 69-70,[3] and per Marshall and Dowsett JJ at 87, [53].
42 The other criticism proffered of the Tribunal's reasoning on ground two was an alleged failure to ask whether the conduct which the appellant had experienced or which she feared was of 'some significant detriment or disadvantage'. It was contended that the Tribunal erred by asking only whether the conduct involved 'some serious punishment or penalty'. This facet of the contention was not put at first instance. The Tribunal's reasons, fairly understood, do not involve a too narrow perception of what may constitute persecution, or a failure to apply the proper meaning of that concept. Its use of the words 'serious harm' in context does not indicate that it excluded the possibility that some significant detriment or disadvantage different from physical harm might constitute persecution. Its consideration of the significance of the accepted discrimination in employment indicates that. It also shows that the Tribunal was alert to the possibility that certain types of discrimination may amount to persecution.
43 The final ground of appeal sought to bring the appellant's claim within the umbrella of the High Court decision in Muin. Counsel contended that the Tribunal conducted its review without considering the Part B documents, contrary to what it had led the appellant to believe by its letter of 25 July 2000, and that had the appellant been properly informed she would have drawn the Part B documents to the Tribunal's attention. Her affidavit of 17 June 2003 to that effect was not challenged by cross-examination. Hence, it was argued, the appellant was deprived of the opportunity to put her best case to the Tribunal and so deprived of the possibility of a successful outcome.
44 The facts of the present case are different from the facts in Muin. In Muin, it was agreed that Mr Muin had believed that the Tribunal had received the Part B documents, including country reports favourable to his claim. The second respondent does not accept that the appellant had a similar belief. It was further agreed in Muin that the Tribunal had not considered the material in the Part B documents. The second respondent does not accept that to be the case in this matter. It was further agreed in Muin that Mr Muin had been misled into believing that it was unnecessary for him to draw to the Tribunal's attention the favourable material in the Part B documents, and that he would have tendered further material in support of his claims and made further submissions based on the content of the Part B documents. The second respondent disputes that the appellant established those matters at first instance.
45 The appellant is clearly not in the same position as the visa applicant in Muin. Her evidence goes no further than showing a belief that the Part B documents were before the Tribunal, and she would have asked it to look at that material. She did not claim to have known of the content of the Part B material, and to have refrained from referring to features of it by reason of the letter of 25 July 2000 or from adducing further material. In fact, the appellant's submissions to the Tribunal included reference to a number of other sources of information about the political situation in Sri Lanka. She was clearly not inhibited from adducing material by any understanding of the contents of the Part B material, or that there was no need to do so.
46 More importantly, the two matters referred to by the learned judge at first instance indicate that the appellant was not deprived of procedural fairness in any way which could have affected the outcome of her claim. The first is that the Tribunal's decision did not turn on any content of the independent country information, such that reference to the Part B material (assuming it was not seen by the Tribunal) could have made any difference. In relevant respects it turned upon particular matters affecting the credibility of her particular claims, in the context of the largely uncontested background of events in Sri Lanka. The second is that the favourable aspects of the Part B material as identified by counsel for the appellant were accepted by the Tribunal (assuming the Tribunal did not see the Part B material, from other reference material) in any event. At first instance, his Honour described the favourable Part B material as showing election-related violence against UNP supporters and other persons including PA supporters (and an attempted assassination of the PA President). On appeal, counsel referred to particular passages of the Part B material, but those references did not descend beyond general matters consistent with that picture.
47 We agree with the learned judge at first instance that any defect in the process in this matter is formal rather than substantive, and could not have affected the outcome of the Tribunal's decision: cf Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.