FEDERAL COURT OF AUSTRALIA AVD15 v Minister for Immigration and Border Protection [2016] FCA 1450 Appeal from: AVD15 v Minister for Immigration & Anor [2016] FCCA 1924 File number: VID 964 of 2016 Judge: DAVIES J Date of judgment: 1 December 2016 Catchwords: MIGRATION – appeal of dismissal of application for review – whether jurisdictional error by reason of failure to make inquiries – whether denial of procedural fairness – whether the Tribunal erred in concluding the appellant would not have a real chance of suffering persecution or a real risk of suffering significant harm Legislation: Migration Act 1958 (Cth) Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 Date of hearing: 21 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Appellant: A F L Krohn Solicitor for the Appellant: AMBI Associates Counsel for the First Respondent: L T Brown Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 964 of 2016 BETWEEN: AVD15 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: DAVIES J DATE OF ORDER: 1 dECEMBER 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The Appellant pay the First Respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing the appellant's application for review of the decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal") affirming the decision of the delegate of the First Respondent ("the Minister") not to grant the appellant a Protection (Class XA) Visa ("the visa"). Tribunal decision 2 Before the Tribunal the appellant, who is a Sri Lankan citizen, claimed to have a well-founded fear of being persecuted in Sri Lanka because of his race as a Tamil, his religion as a Hindu and his political opinion as a supporter of the Tamil National Alliance ("TNA"). The appellant submitted a number of documents in support of his claims, which included four letters from a Mr Packiyaselvam Ariyanethiran, a TNA parliamentarian, whom the appellant claimed was his uncle. The first letter was dated 21 April 2012 and stated that the appellant was very well known to Mr Ariyanethiran, that the appellant had worked for the TNA during the 2010 election and was a very strong supporter of the TNA, and that "he had been threatened by some unidentified groups continuously". The second letter was dated 1 October 2012 and stated that the appellant had to leave Ski Lanka to save his life following threats by an "unknown white van armed group" as he has a deep rooted affiliation with the TNA. The third letter was dated 14 May 2013 and it stated that the appellant was Mr Ariyanethiran's nephew and therefore had a deep rooted affiliation with the TNA. It also stated that the appellant was threatened by an "unknown white van armed group" while he was in Sri Lanka and had to leave the country to save his life. The fourth letter was dated 31 July 2013 and again referred to the appellant as Mr Ariyanethiran's nephew and stated that the appellant had left Sri Lanka on 6 July 2012 due to the threat of abduction by the unknown armed group. Mr Ariyanethiran stated that terrorist activities and abduction by unknown armed groups were continuing and if the appellant returned, he would have to face threats to his life. 3 The Tribunal did not accept that the appellant has any political or activist profile in Sri Lanka. The Tribunal found "numerous difficulties with the [appellant's] evidence" about his claimed relationship with Mr Ariyanethiran and his claimed involvement in activities in support of the TNA. The Tribunal noted that at the entry interview, neither the appellant nor any of his family members indicated that they had ever been associated with, or involved in, any political groups or associations. The Tribunal also noted that, after the natural justice break in the interview with the delegate, the appellant claimed for the first time that Mr Ariyanethiran was a relative and that his mother's father and Mr Ariyanethiran's father were brothers. The Tribunal asked the appellant why he had not mentioned the familial relationship until after the natural justice break in the interview with the delegate and the appellant stated "he did not have an opinion that he had to explain the relationship". 4 The Tribunal also noted that, when asked who he meant when he talked about his uncle, the appellant said "P Ariyanethiran". When he was asked the name of the person he referred to as his uncle, the appellant again said "P Ariyanethiran". When the Tribunal asked the appellant to state Mr Ariyanethiran's first name, the appellant then gave a name other than Packiyaselvam. When the Tribunal sought to confirm that the appellant had given a name other than Packiyaselvam, the appellant referred to one of the letters from Mr Ariyanethiran and then said his first name was Packiyaselvam. 5 The Tribunal noted that the appellant showed little knowledge of the matters to do with the election in 2010. The Tribunal also noted other matters which it considered reflected on the credibility of the appellant's evidence in relation to his connection and involvement with the TNA. The Tribunal did not accept the appellant's claims about him and other members of his family being supporters of the TNA, about being involved in the TNA and about being related to a TNA Member of Parliament, Mr Ariyanethiran. The Tribunal also did not accept that the appellant had engaged in activities for Mr Ariyanethiran such as providing support at election time, giving him information about abuses, driving him to meetings or approaching him for financial assistance. 6 The Tribunal's reasons record that the Tribunal raised its concerns about numerous aspects of the documentary evidence with the appellant at the hearing. The reasons at [82] record that: While post-hearing submissions requested that the Tribunal should inform the representative as to whether it accepts Mr Ariyanethiran's letters as genuine and whether it intends to contact Mr Ariyanethiran, relevant matters were discussed at the hearing. Issues relating to the reliability of the letters were clearly raised at both the initial hearing and the resumed hearing. The Tribunal did not consider it necessary to provide the representative with further information in this regard prior to proceeding to a decision. 7 At [99] the Tribunal stated: The Tribunal notes that it has been suggested that the Tribunal could telephone witnesses who have provided statements. Submissions have put particular emphasis on contacting Mr Ariyanethiran. The Tribunal has been provided with witness statements from a significant number of witnesses. It may be that Mr Ariyanethiran and other witnesses have been prepared to provide evidence supporting the [appellant's] claims. The Tribunal notes that it has been provided with material from the [appellant] indicating that Mr Ariyanethiran has stated that Tamils are unable to enjoy freedom in Sri Lanka. It may be that this is his view. In spite of the evidence provided in the witness statements, there are numerous difficulties with the evidence which, in the Tribunal's view, far outweigh the witness evidence. In all the circumstances, the Tribunal did not consider it necessary to contact Mr Ariyanethiran in Sri Lanka or any of the others from whom statements were provided. 8 The Tribunal's reasons also record that the Tribunal did not accept the letters from Mr Ariyanethiran as reliable evidence. At [96], the Tribunal stated: The Tribunal has had regard to the three letters from Mr Ariyanethiran. It notes that Mr Ariyanethiran initially did not mention the claimed relationship with the [appellant], although the Tribunal considers that this would have been a matter of obvious relevance. The [appellant] did not display a ready ability even to give the full name of Mr Ariyanethiran. In all the circumstances, the Tribunal does not accept the evidence of Mr Ariyanethiran as reliable. The fcc decision 9 The appellant sought judicial review of the Tribunal's decision. Ground one of the further amended application for review was as follows: The Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law, whether by the exercise of its power under section 424 of the Act to get information or otherwise. Particulars (a) The Tribunal had before it critical pieces of evidence, namely letters by and material about a Member of the Parliament of Sri Lanka ("the MP") attesting to a family relationship of the MP with the applicant, and the applicant's support for the Tamil National Alliance (a Tamil political party or group opposed to the government of Sri Lanka), as well as the situation of Tamils in Sri Lanka. This material was therefore potentially critical evidence for the applicant's credibility and for his claims for protection. (b) The MP's material included: Letter dated 21.04.2012 attesting to an attempt on the life of another worker for the TNA during the election campaign of 2010; Letter dated 01.10.2012 attesting to the applicant's involvement in the TNA and threats against him, Attachment "A" to the applicant's statement; Letter dated 14.05.2013, attesting to the family relationship, submitted to the delegate; News report of statements by the MP about violence, abductions and murder suffered by Tamil youth, including rehabilitated Tamils, that is, Tamils previously regarded as having ties to the LTTE but who had undergone a process of "rehabilitation" by the government. (c) Critical issues on the review included the applicant's credibility, including the credibility of his claim to have supported and worked for the TNA, and his family relationship with the MP. (d) The Applicant's adviser had specifically submitted "that the Tribunal may clear any doubt as to the authenticity of his evidence by contacting [the MP]." (e) The Tribunal did not make inquiries of or take evidence from the MP, and said in its reasons for decision "The Tribunal did not consider it necessary to contact [the MP]." (f) The Tribunal did not accept the applicant's critical claims that he had been a supporter of the TNA, involved in the TNA and being related to a TNA MP. (g) The Tribunal did not accept that the applicant has ever engaged in any political or activist activity .... It does not accept that he would wish to engage in any activity for the TNA if he were to return to Sri Lanka. (h) The questions whether the applicant was a supporter of the TNA, had been involved in activities for the TNA and was related to the MP were critical questions of fact. It was "an obvious inquiry about a critical fact, the existence of which is easily ascertained" for the Tribunal to have questioned the MP, especially having been requested to do so by the applicant's advisers. In failing (and indeed refusing) to do so, the Tribunal failed to exercise its power and jurisdiction as required by law. 10 Counsel for the appellant argued that a telephone call to Mr Ariyanethiran was an "obvious inquiry about a [number of] critical fact[s], the existence of which [was] easily ascertained", namely: (a) was the appellant Mr Ariyanethiran's nephew; (b) was the appellant involved in the TNA, and, if so, how? (c) had the appellant been threatened because of his race or political opinion? (d) was the situation for Tamils in Sri Lanka such as to pose a real chance of persecution or significant harm for the appellant? 11 It was argued for the Minister that the Tribunal's refusal to telephone Mr Ariyanethiran did not constitute jurisdictional error, citing in support Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 ("SZIAI") at [25] and [26] where it was said that: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the Tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer's letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error. (footnotes omitted) 12 The FCC accepted the Minister's submission that a telephone call to a Member of Parliament was not "an obvious inquiry about a critical fact, the existence of which [was] easily ascertained". The FCC reasoned that it would have required an extensive interview enquiring into such things as why the Member of Parliament's first two letters had not said that the appellant was his nephew, and an assessment of the Member of Parliament's credibility. The FCC stated that it is notoriously difficult to assess credibility in a telephone call. The FCC concluded at [23]: Given the change in the evidence provided by the Member of Parliament in his letters, I do not consider that his credibility was beyond question. Consequently, I do not accept that the Tribunal, in refusing to interview the Member of Parliament by telephone, made a jurisdictional error. (In this context, see MZABA v Minister for Immigration and Border Protection (2015) 234 FCR 425, [2015] FCA 711 at [78]) 13 The FCC also rejected a further argument on behalf of the appellant based on s 426 of the Migration Act 1958 (Cth) ("the Act"). As the appellant has not appealed the rejection of that contention, it is unnecessary to set out the FCC's reasons. 14 Ground 2 of the further amended application for review was as follows: The Tribunal fell into jurisdictional error in failing to accord procedural fairness to the applicant by failing to allow him to know an issue or issues on the review, whether under section 425 of the Act or otherwise. Particulars (a) The applicant's adviser asked "to be informed as to whether the Tribunal accepts [the MP's] letters as genuine, as well as whether ... the Tribunal will contact [the MP]." (b) The Tribunal did not inform the applicant's adviser about these questions (set out in particular (e) above), but nevertheless said in its reasons for decision "The Tribunal did not consider it necessary to contact [the MP]." (c) The Tribunal thereby failed to enable the applicant to know critical issues on the review and thereby failed to allow him to present further evidence or arguments in relation to the issues on the review, whether under section 425 or generally under the law. 15 It was submitted by the appellant that the Tribunal was on notice, in effect, that the appellant would have wished to put on further evidence or submissions if the Tribunal had indicated that it did not intend to take evidence from the Member of Parliament and was denied procedural fairness by not being given that opportunity. The FCC rejected this ground. The FCC stated that the appellant had been put on notice by the delegate's decision that there was a question as to whether the appellant was related to the Member of Parliament and a question whether the appellant was perceived to be a TNA supporter. The delegate had said in her reasons that: I do not find [the appellant's] claim that he is the nephew of Mr Ariyanethiran credible…I do not accept that [the appellant] was politically active with the TNA to an extent that would give him a political profile within the local community. The FCC stated at [29] and [30]: More generally and fundamentally, it is for an applicant to put whatever material he or she wishes before the Tribunal. Applicants are not entitled to ask the Tribunal to make a preliminary ruling, accepting or rejecting a particular matter, with a view to the applicant putting on more evidence or submissions if the ruling is adverse. The issues in the case were well known to the applicant, both from the delegate's decision and from a s.424A letter sent by the Tribunal to the applicant on 11 March 2015 (CB132). It was not a failure of procedural fairness for the Tribunal not to advise the applicant whether it intended to telephone the Member of Parliament. This ground is without substance. 16 Ground 3 was that: The Tribunal fell into jurisdictional error in failing correctly to apply or to interpret the law. Particulars (a) The Tribunal was prepared to accept that returnees to Sri Lanka may expect detention in prison for a short time (b) The Tribunal was prepared to accept that those who may be suspected or accused of connections to the LTTE may be at significant risk if returned, including risk of torture. (c) The Tribunal did "not accept that the applicant has ever engaged in any political or activist activity or that he has any political profile that would make him of any interest to the Sri Lankan authorities .... It does not accept that he is a supporter of the TNA or that he would be perceived as such. It does not accept that he would wish to engage in any activity for the TNA if he were to return to Sri Lanka. (Emphasis added.) (d) On the evidence, and given the failure of the Tribunal to take evidence from the MP, the Tribunal must have had at least some situation of uncertainty about whether the applicant may perhaps have been involved with anti-government politics. (e) It was therefore not open to the Tribunal to conclude that the applicant, having claimed involvement with the TNA, and to have been threatened by the authorities or an allied group, and to be related to a TNA MP, would not have a real chance of suffering persecution, or a real risk of suffering significant harm, given the reports about the infliction of torture on Tamils returned to Sri Lanka in the years since the end of the civil war. (f) The findings of the Tribunal in this regard demonstrate that it was not in fact applying the real chance or real risk test, despite its statements to the contrary, but was applying a higher bar to the application. 17 This ground related to the Tribunal's finding at [102] of the reasons for decision that: However, the Tribunal does not accept that the [appellant] has ever engaged in any political or activist activity or that he has any political profile that would make him of any interest to the Sri Lankan authorities, paramilitaries or anyone else. It does not accept that he is a supporter of the TNA or that he would be perceived as such. It does not accept that he would wish to engage in any activity for the TNA if he were to return to Sri Lanka. 18 The appellant argued that the Tribunal's use of the word "would" rather than the word "might" indicated that it had applied the wrong test. It was also submitted for the appellant that there was such a large volume of material before the Tribunal going to the risk that the appellant faced that the Tribunal must have applied the wrong test in coming to the conclusion that it did. The FCC rejected both arguments. The FCC reasoned as follows at [36]–[38]: In its ordinary usage, "would" can sometimes be the past tense of "will" and can sometimes be used as a conditional about something that might happen in the future. I consider that the Tribunal used "would" in the second sense in paragraph 102 of its reasons for decision. Consequently, I do not accept that the Tribunal applied a higher standard than the real chance test. Moreover, the Tribunal used absolute language, in the form of "ever" and "any" when explaining its conclusion that the [appellant] did not face a real chance of persecution. That reinforces the interpretation of the Tribunal's words to the effect that there was no substance to the applicant's claimed fear. The second basis for ground 3, regarding the volume of material, is no more than an impermissible attempt at merits review. 19 There were two other grounds of review which were also rejected but which are unnecessary to consider as they are not relied on in the appeal from the FCC decision. The appeal 20 The appeal from the FCC decision has raised the same grounds 1–3. Ground 1 21 It was submitted for the appellant that the Tribunal is an inquisitorial body with the power to get information and if there is "an obvious inquiry about a critical fact, the existence of which is easily ascertained" then the power to get information may be a duty, and the failure to make the inquiry is a jurisdictional error. The appellant cited in support SZIAI. It was submitted that the Tribunal had before it critical pieces of evidence from one potentially authoritative and corroborative source, namely the letters by the Minister of Parliament attesting to the family relationship with the appellant, and the appellant's support for the TNA, and therefore potentially critical evidence for the appellant's credibility. It was submitted that all this was critical information to the Tribunal's decision. It was submitted that the Tribunal could easily, by making one telephone call, have taken evidence from the Member of Parliament which either would have provided independent corroboration of the claims, or confirmation of the Tribunal's concerns about the claims. It was submitted that the fact that the Minister of Parliament was named, being a member of a body with some professional responsibilities in Sri Lanka, should have suggested to the Tribunal that valuable independent information, critical to the application before it, could be obtained by a simple inquiry. It was submitted further that the appellant's advisor had specifically asked to be advised as to whether the Tribunal intended to call the Member of Parliament, and whether the Tribunal believed that the letter was genuine and that this underlined the importance of Mr Ariyanethiran's evidence to the appellant's matter before the Tribunal. It was accepted that the Tribunal had no obligation to keep the adviser appraised of all its thought processes, but submitted that in the circumstances where the adviser had specifically sought that these matters be raised, the Tribunal ought to have taken evidence from the Minister of Parliament. It was submitted that the failure of the Tribunal to take evidence from Mr Ariyanethiran was, therefore, a failure in the discharge of its statutory task under s 424 of the Act and also generally to conduct a review on the merits and was thereby a jurisdictional error which, as it went to the assessment of the critical issue of credibility, may well have affected the decision. I do not accept those contentions. 22 Whilst the Tribunal is an inquisitorial body, the Tribunal's duty was to review the delegate's decision: SZIAI at [25]. In SZIAI, the majority observed at [25]: It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. In SZIAI, the issue was whether the Tribunal had committed jurisdictional error by not making its own inquiries into an allegation that certificates submitted by the appellant as evidence were forgeries. The High Court found that there was no jurisdictional error by reason of the Tribunal's failure to inquire. One of the reasons given by the majority was that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. At [26], the majority stated: There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The present case is not distinguishable. 23 In this case, the appellant has not identified what inquiry or investigation the Tribunal should have conducted beyond the assertion that the Tribunal ought to have contacted Mr Ariyanethiran to verify the appellant's claims and there is nothing to indicate what information Mr Ariyanethiran could have given that would have advanced the Tribunal's inquiries one way or another. Furthermore, the Tribunal had no duty to seek to verify the appellant's claims. Its duty was to review the decision of the delegate and it was necessary for the appellant to put on material to satisfy the Tribunal of the necessary matters for the grant of the visa: SZIAI at [27]; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576, [187] (Gummow and Hayne JJ). The FCC was correct to dismiss this ground for the reasons given. Ground 2 24 The appellant advanced substantially the same submissions in support of ground 2 as the submissions advanced in support of ground 1. 25 It was submitted that in those circumstances, where the adviser had requested to be advised by the Tribunal, the obligation of procedural fairness meant that the Tribunal ought to have advised the appellant's adviser of its intention not to take evidence from Mr Ariyanethiran so that the appellant would have the opportunity to give further evidence or argument. 26 The FCC was also correct to reject this ground for the reasons given. The appellant was clearly aware that an issue in the review was his relationship with the man he claimed to be his uncle and the weight to be given to the letters which he claimed were from that man. The delegate, in reaching findings adverse to the appellant, extensively canvassed the issue. The appellant had full and proper opportunity in the Tribunal to present his case and his evidence in support and was given the opportunity to deal with the concerns expressed by the Tribunal about the credibility of those letters. The appellant's adviser's request to the Tribunal post the hearing to contact Mr Ariyanethiran did not place any obligation upon the Tribunal to notify the appellant that it did not intend to contact Mr Ariyanethiran, or to give the appellant any further opportunity to advance any further evidence or put any further argument. The Tribunal discharged its obligation pursuant to s 424A of the Act by giving the appellant the opportunity to comment on the Tribunal's concerns about the genuineness of the appellant's claims. Ground 3 27 It was submitted that the Tribunal was required by the Act to determine whether the appellant had a well-founded fear of persecution or a real risk of significant harm. It was submitted that there was material which suggested, and the Tribunal was prepared to accept, that returnees to Sri Lanka may expect a detention in prison for a short time and that those who may be suspected or accused of connections to the Liberation Tigers of Tamil Eelam may be at significant risk if returned, including risk of torture. It was submitted that the appellant's adviser had submitted a significant amount of information about the conditions in prison. 28 Further, it was submitted that the Tribunal also found that prison conditions in Sri Lanka are poor, but were not intended to cause extreme humiliation. It was said that this finding was of importance to the overall conclusion about whether Australia had complementary protection obligations to the appellant. 29 It was submitted that the failure of the Tribunal to take evidence from Mr Ariyanethiran, must have left the Tribunal in at least some situation of uncertainty about whether the appellant may have been involved with other anti-Government politics and it was not open to the Tribunal to conclude that the appellant, having claimed involvement with the TNA, and to have been threatened by the authorities or an allied group, would not have a real chance of suffering persecution, or a real risk of suffering significant harm, given the reports about the infliction of harm (including torture) on Tamils returned to Sri Lanka in the years since the end of the civil war. It was submitted that the findings of the Tribunal in this regard demonstrated that it was not in fact applying the real chance or real risk test, despite its statements to the contrary, but was applying a higher bar to the application and thus there was a failure to determine the application according to law. 30 The FCC also correctly rejected this ground. The Tribunal's reasons at [102] demonstrated an orthodox and logical approach to dealing with future fears based on past activity where the Tribunal rejected as credible the appellant's claim that he had engaged in activities associated with the TNA and, having rejected those claims as credible, there was no factual basis for a conclusion that the appellant might undertake such conduct in the future if he returned to Sri Lanka. The Tribunal's statement that it did not accept that the appellant "would be perceived" as a supporter of the TNA or accept that he "would wish to engage" in any activity for the TNA if he were to return to Sri Lanka must be read in conjunction with the preceding sentence that: "the Tribunal did not accept that the appellant had ever engaged in any political or activist activity or that he has any political profile that would make him of any interest to the Sri Lankan authorities, paramilitaries or anyone else". Properly considered, the fair reading of the Tribunal's language is that the Tribunal, having rejected the appellant's claimed association with the TNA, did not accept that there was a real chance of persecution of the appellant if he returned to Sri Lanka by reason of such an association. 31 In oral submissions, counsel for the appellant put the argument in a slightly different way, arguing that having regard to the volume of material about political violence in Sri Lanka, including material that indicated a level of violence against even "very low-level supporters", the Tribunal was obliged to consider whether there was a real chance that that the appellant might be perceived to be an opponent of the government. However, it was not part of the appellant's claims that he had a well-founded fear of harm for a Convention reason because he might be perceived to be an opponent of the government. His case was put on the basis that he was involved with, and a supporter of, the TNA. Having rejected that claim, the Tribunal was not required to consider whether the appellant has a well-founded fear of harm or there is a real risk of significant harm because he might be perceived as an opponent of the government. conclusion 32 As the appellant had been unsuccessful on each of his grounds of appeal, the appeal will be dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate: Dated: 1 December 2016