Perampalam v Minister for Immigration and Multicultural Affairs
[1998] FCA 1337
•23 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – Applicant subjected to persecution and extortion – whether extortion can amount to persecution for a Convention reason – whether wealthy persons can constitute a social group – whether Applicant able to relocate to another region of Sri Lanka – whether there was no evidence before the Tribunal to enable it to reach conclusions it did.
Migration Act 1958 (Cth) – ss 476(1), 476(2), 476(4)(a), 476(4)(b)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 – cited
Yan Xu v Minister for Immigration and Ethnic Affairs (unreported, 18 April 1997) –
referred to
Sivarasa v Minister for Immigration and Multicultural Affairs (unreported, 11 June 1998) – cited
Mohamed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998) – cited
Syan v Refugee Review Tribunal (1995) 61 FCR 284 – discussed
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (Full Court) – discussed
Sambandan v Minister for Immigration and Ethnic Affairs (Gray J, unreported, 30 June 1997) – discussed
Nagaratnam v Minister for Immigration and Ethnic Affairs (Tamberlin J, unreported,
17 August 1998) – discussed
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 – referred to
Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27 – cited
Doan v Minister for Immigration, Local Government and Ethnic Affairs (Olney J, unreported, 9 April 1997) – cited
Ratnayake v Minister for Immigration and Ethnic Affairs (1997) 74 FCR 542 – cited
Magyari v Minister for Immigration and Multicultural Affairs (O’Loughlin J, unreported,
22 May 1997) – cited
Karnail Singh v Minister for Immigration and Multicultural Affairs (Mansfield J, unreported, 4 July 1997) – cited
Fernando v Minister for Immigration and Multicultural Affairs (Finn J, unreported, 5 November 1997) – cited
Abako v Minister for Immigration and Multicultural Affairs (Emmett J, unreported,
18 March 1998) – cited
Chen v Minister for Immigration and Multicultural Affairs (Branson J, unreported,
31 March 1998) – cited
Paramathan v Minister for Immigration and Multicultural Affairs (Davies J, unreported, 15 May 1998) – referred to
MANGAYATKARASI PERAMPALAM v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 354 of 1998
HILL J
SYDNEY
23 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 354 of 1998
BETWEEN:
MANGAYATKARASI PERAMPALAM
ApplicantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
RespondentJUDGE:
HILL J
DATE OF ORDER:
23 OCTOBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The Application be dismissed.
The Applicant pay the Respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 354 of 1998
BETWEEN:
MANGAYATKARASI PERAMPALAM
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HILL J
DATE:
23 OCTOBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Respondent, Minister for Immigration and Multicultural Affairs, through a delegate, not to grant to her and her stepmother protection visas. It is common ground that the fate of the stepmother’s application depended on the outcome of the application of the Applicant. Hence the present application is concerned only with the Applicant.
The Decision under Review
In its findings and reasons the Tribunal made it clear that it accepted the Applicant’s evidence. The Tribunal also made explicit findings about many of the matters that were dealt with in evidence, findings that related back to the Applicant’s own evidence. It is therefore useful before considering the Tribunal’s reasons to summarise briefly the “claims” which the Applicant made and which, so far as they involved factual matters at least, were accepted.
The Applicant is a Tamil aged 67 at the time of the Tribunal’s hearing. In addition to having a daughter in Australia and one in Canada, she has two sons and a daughter in Sri Lanka. Her eldest son who is married lives in Vavuniya (in Sri Lanka’s north east), the other son is married and lives in Kiriulla (or Kiriella), south of Colombo, and a daughter who is married lives in the village of Thambiluvil, about a quarter of a mile from where the Applicant lived. Thambiluvil lies in the Amparai district in Sri Lanka’s eastern province. The district is mainly a Muslim area with the second largest ethnic group being Sinhalese although a large number of Tamils also live there. The village in which the Applicant lived was Tamil although surrounded by Muslim villagers.
Until the Muslims became the enemy of the Tamils all communities had lived in harmony with each other. The Applicant’s family was relatively prosperous and owned some 50 acres of paddy fields and 30 acres of coconut plantations. In addition to her income from the estates, the Applicant had as well a pension from her husband who had died in 1982. Although her husband had been politically active and closely acquainted with leaders of the Tamil United Liberation Front (“TULF”), the Applicant herself was not directly active although she supported the TULF out of habit.
In 1985 trouble broke out between the Muslims and the Tamils following the killing of Muslim villagers by guerillas of the Liberation Tigers of Tamil Eelam (“LTTE”). Muslim Home Guards encouraged by the Government and supplied with weapons by the Government had attacked Tamils in a town in Amparai and set fire to the Applicant’s paddy fields, destroying some farm equipment and looting and damaging her house. The eldest son had, at the time, been bashed. On various occasions her home was broken into and vandalised. The Indian Peacekeeping Force (“IPKF”) came to Amparai to help restore order. That Force was accompanied by two Tamil guerilla groups, the Eelam People’s Revolutionary Liberation Front (“EPRLF”) and the Tamil Eelam Liberation Organisation (“TELO”).
In mid-1989 the EPRLF had sought to conscript the Applicant’s eldest son to join them. When the Applicant tried to protest, she was pushed and kicked. It is likely that advanced osteoarthritis she now suffers from was at least exacerbated by this assault. The son had been detained by the EPRLF and also assaulted. He was ultimately freed after the Application paid Rs 50,000. When the Applicant complained to the Peace Keeping Force, the EPRLF visited her again and she was once more assaulted. Money was demanded from her and, as she had no money to give, she was ordered to provide meals for EPRLF members for three months.
In the meantime members of TELO were stealing produce from the plantations of the Applicant and using her tractor. Then the EPRLF seized the tractor and a car and the Applicant and her mother were assaulted when they tried to protest.
Fighting recommenced in June 1990 when peace talks between the Government and the LTTE had broken down. In one incident the special task forces had come looking for the Applicant’s son-in-law who by now had been coerced by the LTTE into acting as an interpreter for them, had interrogated the Applicant and slapped her. The next night she was questioned again by the Special Task Force (“STF”) and slapped.
In 1993 the LTTE had sabotaged electricity transformers some distance away from the Applicant’s house.
In the next year, the STF began posting a guard at the area’s main transformer just in front of the Applicant’s house. Demands were made of her that she make tea for the soldiers. But a week after the STF had set up these guards, LTTE members visited her and demanded that she distance herself from the Army. Money was demanded of her. She said she had nothing to give. She was pushed to the ground, although others helped her to her feet. The Applicant was not alone in being subjected to extortion, this had happened to others who were affluent.
She was visited regularly by the LTTE who accused her of being an informant for the STF because they were around her house each night guarding the transformer. The LTTE redoubled its efforts to extort money from her. In November 1996 she lost her temper with the guerillas and was again pushed to the ground. A month later five LTTE members came to her house about 3 pm and demanded that she sew 50 sarongs for them since she had refused to give them money. She complied and provided two batches of sarongs. When the Army learnt about this, apparently from neighbours, the STF came to her house and demanded to know why she had been doing work for the LTTE. She was again pushed and knocked around. She was dragged into a room by a soldier who started to strip her of her clothes. She screamed, fell to the floor and was kicked. Other soldiers ran into the room, hearing her scream, and she was released. It was about this time that she decided to leave the area as soon as possible and ultimately obtained a passport and visas to travel to Australia.
The Tribunal was of the view that the Applicant did not have, within the meaning of the United Nations Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees in 1967, a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal was also of the view that she was disentitled to the protection of the Refugee Convention because she was able to relocate to another part of Sri Lanka.
The Tribunal’s reasons for the conclusions it reached can be summarised in the following propositions:
While there was a real chance that demands would be made of the Applicant by way of extortion, the extortion attempts on her did not amount to persecution for a Convention reason.
Incidents such as the burning of the paddy fields and the breaking into the Applicant’s house were not, as the Tribunal’s reasons put it, part of a persecutory:
“course of systematic conduct … nor were they officially tolerated or uncontrollable by the Sri Lankan authorities.”
The Tribunal also found there was not a real chance that these activities would occur again anyhow, as they had ceased with the advent of the IPKF to the area in 1987.
Appropriation of farm equipment and looting were not “indicative of elective harassment of the applicant”. They occurred “not for a Convention reason but because such groups [TELO and EPRLF] have need of a tractor or other vehicle at a certain time”.
The beating of the Applicant which occurred when trying to protect her son from being forced to join the EPRLF Tamil National Army was not persecution because of any political opinion but merely the result of trying to protect her son; ie. these matters did not involve persecution for a Convention reason but either revenge or more extortion.
The Tribunal found also that there was no real chance of the Applicant being harmed by the EPRLF in the future.
The Applicant’s detention by EPRLF in 1989 was “for extortionary purposes” and did not arise for a Convention reason.
The detention and interrogation of the Applicant about her son-in-law were acts not persecutory but were, rather, “a legitimate security measure in the context of a civil war”. In a passage complained of in the course of argument the Tribunal said:
“Such mistreatment during detention cannot be regarded as appropriately designed to achieve a legitimate end of Government policy, but neither is it persecution for a Convention reason … It was was [sic] not part of a course of systematic conduct aimed at the applicant for a Convention reason, but rather an indiscriminate abuse of authority and an act of inhuman cruelty.”
The incident involving the 50 sarongs and subsequent harassment was not persecution on Convention grounds but occurred because the Applicant had refused to accede to the extortion attempts of the LTTE.
The interrogation in the Applicant’s home about doing work for the LTTE was likewise not persecution although the Applicant was very roughly treated. The interrogation was said to be legitimate in a climate of civil war. The mistreatment though not an appropriate measure to achieve a legitimate end of Government policy was not persecution but rather “an indiscriminate abuse of authority and an act of inhuman cruelty.”
An argument that the Applicant was being persecuted for belonging to a particular social group, said to be her family, because of its connections with Tamil terrorist groups was rejected on a factual basis. The Tribunal did not accept that any other social group existed which could explain the persecution.
In summary the Tribunal said:
“The applicant’s solicitor submitted at hearing that the harm and discomforts suffered by the applicant cumulatively constituted persecution. For the above reasons, none of the harms suffered by the applicant were for a Convention reason or were legitimate security measures in a climate of civil war and mounting terrorism. Thus, the Tribunal does not find, on consideration of the above reasons, that the applicant is a victim of cumulative persecution under the Convention.
The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution for a Convention reason.”
The Tribunal’s reasons then went on to consider the question of relocation. It stated itself to be satisfied that relocation to Thambiluvil was a reasonable option as the Applicant had a daughter and a son-in-law there with amicable personal relations with the STF on whom she could lean. It was pointed out that she had income from her estates there and a lifelong network of contacts with close friends within a bus ride. The Tribunal said also that it would be reasonable for the Applicant to resettle in Kiriulla with her son. The material before the Tribunal showed, the Tribunal said, that that area was stable and that her son had a stable Government job there.
The Tribunal concluded that:
“ … the extortion suffered by the applicant was due to non-Convention reasons: the detention and sporadic interrogations she underwent constituted a normal and legitimate security procedure in a climate of civil war and terrorism and in the light of her and her son-in-law’s sometime work for the LTTE; the kind of assault she suffered just before coming to Australia is not condoned by the State and cannot be considered persecution for that reason; the authorities’ dealings with the applicant were for her individual actions or her geographic proximity to LTTE movements, not for reasons of her possible membership of a particular social group constituted by her family. The Tribunal is also satisfied that relocation is a reasonable option in the circumstances of this case. The Tribunal is not satisfied, for the above reasons, that the applicant has a well founded fear of persecution for a Convention reason.”
The Grounds of Review Summarised
There were numerous grounds sought to be relied upon on behalf of the Applicant. There was some repetition and overlap but the grounds of review might be summarised as follows:
That the Tribunal erred in interpreting the test of persecution in concluding that the various acts which happened to the Applicant did not constitute persecution for a Convention reason.
That the Tribunal failed properly to consider whether the Applicant faced a well founded fear of persecution for a Convention reason in the future.
The Tribunal failed to consider the totality of the Applicant’s claims when deciding whether what happened to her was for a Convention reason.
That the Tribunal erred in not concluding that the Applicant had a well founded fear of persecution by reason of her membership of a social group; namely persons perceived to be wealthy Sri Lankans or wealthy Tamils.
The Tribunal erred by failing to make findings as to whether or not the Applicant was persecuted by the LTTE for reasons of her political opinion imputed to her by the LTTE.
In the alternative, that there was no evidence or other material on which the Tribunal could be reasonably satisfied that the mistreatment of the Applicant by the LTTE was not for reasons of a political opinion imputed to her by the LTTE.
There was no evidence from which the Tribunal could reasonably be satisfied that the mistreatment of the Applicant by the Sri Lankan Army, the STF and the Muslim Home Guards was indiscriminate abuse of authority and that the mistreatment was not for Convention reasons.
That the Tribunal erred in interpreting and applying the law so far as it related to relocation.
Findings relating to Interrogation and Detention of the Applicant
The gravamen of the criticism of the Tribunal’s reasons advanced by way of submission was that the Tribunal had found much of the conduct which was perpetrated upon the Applicant to be inappropriate. It was submitted that for these reasons the conduct could not fall outside the concept of persecution for Convention reasons merely because what happened was related to security. Indeed it was said the Tribunal should have gone on to decide whether the indiscriminate acts of cruelty directed at the Applicant were directed at her for a Convention reason such as by reason of her race or her perceived connections with the LTTE.
It will be obvious from the summary of the Tribunal’s reasons that on many occasions the Tribunal concluded that, while what had happened to the Applicant was cruel, it was not persecution but rather a legitimate security measure. In its reasons the Tribunal refers to comments by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 354 as well as the decision of Olney J in Yan Xu v Minister for Immigration and Ethnic Affairs (unreported, 18 April 1997).
In the former case, McHugh J said, discussing persecution at 354:
“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.”
No doubt, mere detention designed to achieve a legitimate end of Government policy would not be persecution. It will be a matter of degree, however, whether the conduct is appropriate and adapted to achieving some legitimate object of the country of the refugee. If it is, then no doubt it is not persecutory. If it is not, it may be persecution. It is difficult to see that conduct involving a victim being slapped and pushed around during interrogation would be necessarily appropriate and adapted to achieving a legitimate object. I do not think the Tribunal did either. But if it did, that would not be the end of the inquiry. Even if conduct is persecutory it does not follow that the victim of it is entitled to refugee status for the persecution must be for a Convention reason. The problem for the Applicant in the present case is that the Tribunal found the conduct not to be aimed at the Applicant for a particular Convention reason. I shall return to that problem later.
Reference was made on behalf of the Applicant to a decision of Burchett J in Sivarasa v Minister for Immigration and Multicultural Affairs (unreported, 11 June 1998). In that case, and in a passage with which I wholly agree, his Honour said:
“There can be no difficulty with the proposition that necessary and reasonable enforcement, by the legitimate government of a country, of measures to combat terrorism will not amount to persecution, even if a race, or other group within the scope of the Convention, from which the terrorists come is targeted, and even if innocent members of that group unavoidably suffer distress, temporary detention or various forms of interference with their civic rights. But at least where such a group is targeted and its members are the victims of ‘unnecessary and disproportionate’ harm inflicted on them, those so victimized will properly be described as persecuted.”
However, having said that, I see no real error in the Tribunal’s reasons. They depended not merely on a finding that the conduct against the Applicant was not persecution but on the wider finding that it was not for a Convention reason.
Systematic Conduct
An error of law said to have been exposed lay in a finding of the Tribunal that what happened to the Applicant was not “systematic conduct aimed at the applicant for a Convention reason”. It is said that the Tribunal is so finding erred in law in suggesting there was a requirement that the conduct against the Applicant be itself part of systematic conduct directed at the Applicant herself. Reference is made to my decision in Mohamed v Minister for Immigration and Multicultural Affairs (unreported, 11 May 1998).
I do not find it necessary to repeat what I said in Mohamed. I do not think that the Tribunal’s reasons, read properly, suggest an error of law. Particularly, the Tribunal did not suggest that an isolated act against the Applicant, not part of systematic conduct against a group, could not be persecution as was the case in Mohamed.
It is said however that the Tribunal should have considered whether the Applicant was being subjected to persecution as part of systematic Convention related abuse of Tamils by the authorities. It was said that there was ample evidence before the Tribunal in this regard. However it is clear enough from the reasons that the Tribunal formed the view that the conduct against the Applicant was not for a Convention reason. The material to which reference is made as to circumstances in Sri Lanka hardly requires the conclusion that what happened to the Applicant was persecution for a Convention reason.
Condemnation by authorities
In the passage complained of the Tribunal said:
“The mistreatment suffered by the applicant was clearly not an appropriate measure to achieve a legitimate end of Government policy. However, for the reasons given above in relation to the mistreatment she suffered during interrogation about her son the Tribunal finds that the mistreatment was not persecution under the Convention but rather an indiscriminate abuse of authority and an act of inhuman cruelty. … The Tribunal also notes that it was not condoned by the authorities and was stopped by the attacker’s colleagues: according to the applicant’s evidence, her ordeal ended when she screamed and other soldiers ran into the room and saw what was happening.”
No doubt it is correct to say that the mere fact that persecution is not condoned by the authorities does not require the conclusion that there was not persecution for a Convention reason. In Applicant A, McHugh J pointed out that the Convention was concerned to protect persons who were singled out and persecuted by or with the tacit acceptance of the Government and that persecution by private individuals would not fall within the definition unless the State encouraged the persecution or appeared to be powerless to prevent the private persecution. But again this does not assist the Applicant where the finding was, that what happened to her was not in any event for a Convention reason.
Relationship of Past to Future Persecution
The Tribunal found, by reference to the Applicant’s past treatment, that what had happened to her was not persecution for a Convention reason. On behalf of the Applicant a complaint is made that the Tribunal was bound to look at the future and that findings as to past treatment, while an obvious starting point, were not determinative. The submission is made in the context rather of extortion. It is convenient at this point to look at the extortion question more carefully. Suffice it to say however that nothing in the Tribunal’s reasons suggests that it erred by failing to consider what was likely to happen in the future.
Extortion and persecution
As the Tribunal points out in its reasons, many of the matters complained of by the Applicant originated from attempts to extort money from her. It is suggested that the Tribunal erred in holding that extortion was not persecution or at least was not persecution, for a Convention reason, if applied to persons who had the capacity to give substantial amounts of money. With respect to what has been said in a number of cases, I do not think that there is any case which suggests that extortion could not be persecutory or that extortion of persons who were rich might not represent persecution for a Convention reason. In my view, the issue depends upon the facts. Indeed so much is accepted by counsel for the Minister.
The matter has been considered in a number of cases including Syan v Refugee Review Tribunal (1995) 61 FCR 284; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (Full Court); Sambandan v Minister for Immigration and Ethnic Affairs (Gray J, unreported, 30 June 1997) and Nagaratnam v Minister for Immigration and Ethnic Affairs (Tamberlin J, unreported, 17 August 1998).
In Syan, Beazley J merely addressed the matter peripherally. Her Honour was of the view that, in the circumstances, the Tribunal had decided the matter on a different basis although indicating that its discussion on distortion was in error.
The matter was more directly addressed in Ram. In that case, the applicant was wealthy and suffered extortion by violence or threats of violence, a matter that was a common occurrence in the Punjab. Burchett J, with whose reasons O’Loughlin and Nicholson JJ agreed, first discussed the necessity of finding a common unifying element, binding the members of a social group together before it could be said that such a social group existed. His Honour then continued at 569:
“In the present case, quite apart from the difficulty of seeing wealthy Punjabis living in circumstances which make them vulnerable to extortion as a sufficient group, it is the greater difficulty of saying that the attacks feared by the appellant would be for reasons of his membership of that group which, it seems to me, he cannot overcome. Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual.”
It might be noted that Nicholson J added a comment at 570 in the following terms:
“I wish only to add that it is clear that the possession of wealth is capable, in the appropriate circumstances, of constituting those who possess it as members of a particular social group. Wealth is no different in this respect to land ownership. … The learned judge at first instance recognised this. He also found, correctly in my view, that there was no evidentiary support that the society to which the appellant belonged recognised the characteristic of wealth as alone creating an identifiable group.”
His Honour continued by saying that the findings that were contended for by the appellant were not open on the facts of the case.
In Sambandan, Gray J in a short judgment noted that, in the case before his Honour, the Tribunal had formed the view that extortionate demands for money were not Convention related reasons relying on Ram. His Honour continued:
“He [the applicant] was therefore forced to argue that the tribunal erred in law by coming to the wrong conclusion on the basis of them [ie. the findings of fact]. In the light of the finding of fact that it was wealth alone, and not wealth in combination with any particular racial or ethnic affiliation, which prompted extortion demands, the applicant was reduced to arguing that the tribunal should have held that membership of a class of wealthy people was sufficient to constitute membership of a particular social group, for the purposes of the Convention. This argument ran directly into conflict with the conclusion of the Full Court in Ram.”
With respect to his Honour, I would not read Ram as concluding that wealthy persons might not, in a particular circumstance, constitute a social group. There could be hardly any doubt that poor persons could constitute a social group. Why, one might ask rhetorically, might not wealthy persons? The serious question is not so much whether wealthy persons constitute a social group but rather the composite problem of whether the conduct against them is directed at them because of their membership of that social group. It may be noted that Gray J expressed dissatisfaction with the reasoning in Ram’s case.
Finally, in Nagaratnam, Tamberlin J expressed the proposition with which, with respect, I agree that a finding that extortion could never amount to persecution for Convention reasons would involve an error of law. His Honour referred to Ram as deciding merely that extortion directed at persons simply because they are wealthy individuals was outside the protection of the Convention. His Honour referred as well to Sambandan but concluded that the factual findings made by the Tribunal did not lead to the conclusion that the conduct directed at the Applicant was persecution for a Convention reason.
With respect, I would be loath to conclude that Ram decided as a question of law that extortion of persons in circumstances where extortion was directed at a group comprising wealthy persons, would not constitute persecution for a Convention reason. The problem is not so much one of law as one of fact. The fact that extortion is directed at persons who happen to be wealthy is probably axiomatic. If they were poor, the attempts would obviously fail. If they were rich, the attempts would obviously be more likely to succeed and indeed be more likely to be repeated. But that would not suffice to show that what happened to the individual constituted persecution for a Convention reason for the simple reason that the motivation of the extortion is not directed at a group of wealthy persons as such but rather merely at individuals who happen to be members of that social group. For my part, I could imagine a case where extortion might constitute persecution for a Convention reason. The problem the Applicant has in the present case is that the Tribunal fell far short of factual findings which lead to this conclusion.
An additional criticism is made of the Tribunal that it made no specific reference or no specific finding as to whether the Applicant was the victim of extortion because she was a member of a particular social group. However, I think it is clear that the Tribunal took the view that the extortion was not for this reason. Nor does it appear that this was the way the Applicant’s case was put in the Tribunal. I will return to that matter again later.
Cumulative Assessment of Claims
The Applicant criticised the reasons of the Tribunal on the basis that it considered only the individual acts of persecution but did not look cumulatively at whether all those individual acts constituted persecution for a Convention reason.
No doubt it is correct to say that the Tribunal must consider the overall factual matrix in deciding whether an applicant has both a subjective and an objective fear of persecution for a Convention reason. But the reasons of the Tribunal do not suggest to me that it neglected to do so. It is clear that the Tribunal did consider a submission that had been put at the hearing that cumulatively what had happened to the Applicant constituted persecution. The Tribunal did not fail to consider the cumulative effect. What it concluded was that, because none of what happened to the Applicant was for a Convention reason, a fortiori, the cumulative effect of the acts could not be for a Convention reason. That must logically be so and I do not think that the Tribunal’s reasons show any error.
Relocation
As is already evident from the above discussion, there were two alternative reasons why the Tribunal found against the Applicant. The first was that the acts alleged to have happened to her were not objectively persecution for a Convention reason. The second was that the Tribunal formed the view that the Applicant might reasonably relocate.
It is said that the Tribunal failed to properly consider and apply the tests set out in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 where the Chief Justice pointed out that it was incumbent upon a tribunal to consider the reasonableness of relocation. It is said that, in the present case, the Tribunal did not consider the fact that both Applicants were elderly, ill and frail nor evidence that one of the Applicant’s sons lived in a war zone and the other son was having problems in attempting to leave the country altogether. It is said also that the Tribunal expressed the view that Sri Lanka was a country of great violence and terror with terrorism activities in most major cities and that this was a matter which rendered relocation unreasonable.
There is nothing in the Tribunal’s reasons on relocation that suggests any error in the Tribunal’s approach. It found as a fact that relocation in Thambiluvil or, for that matter, Kiriulla, were reasonable options to the Applicant. There is no reason to doubt that the Tribunal was aware of the age of the Applicant or, for that matter, her mother. Indeed, those ages are set out in their reasons. The question of whether relocation is a reasonable option is a question of fact. It is one for the Tribunal, not for this Court. It would scarcely constitute an error for the Tribunal to find relocation to be a reasonable option notwithstanding that a son of the Applicant was attempting to leave the country and would be unavailable for support.
Contradictory Findings?
It is said that the Tribunal made conflicting findings as to whether or not the interrogations and detentions of the Applicant by the authorities were appropriate within security procedures. With respect, I do not think that this is correct. The submission rather appears to be one seeking to comb through reasons of the Tribunal in the endeavour to manufacture some legal foundation for review.
The Tribunal's reasoning is quite consistent. In various places it makes it clear that it regards detention and interrogation as themselves not persecution but assaults and battery in the course of them as inappropriate conduct. The suggestion that thereby the Tribunal failed properly to set out its reasons is without merit.
It is said also that the Tribunal erred in requiring that a persecutor must exhibit personal animosity. Put another way, it is said that the Tribunal fell into error in its understanding of what constitutes persecution by requiring that a person persecuted must exhibit personal animosity towards a victim. The submission continues that feelings of hostility are not an essential element of persecution and that what must be established is that the harm was inflicted upon a person for a Convention reason. With that proposition, I would no doubt agree. What I do not agree with is that the Tribunal found against the Applicant because there was no personal animosity towards the Applicant. That is not a fair reading of what the Tribunal did.
Failure to Consider Other Social Groups, eg. Wealthy Tamils
As has already been indicated, one of the arguments advanced on behalf of the Applicant was that the Tribunal should have considered whether the extortion in question directed at the Applicant was directed at her because of her membership of a social group; namely wealthy persons or wealthy Tamils.
The problem with this argument, in addition to the other problems already discussed, including the fact that the decision could in any event be supported on the grounds of relocation, is that the case was argued on the basis that the harassment or persecution of the Applicant was because of her membership of a particular social group, namely a group comprising her own family.
I have no difficulty in accepting a proposition that a family of persons may constitute a social group. But what is relevant here is not so much the fact that the Tribunal found that the conduct directed at the Applicant was not directed at her by reason of her membership of that family and therefore social group. What is complained of is that the Tribunal should have gone ahead and considered other possible social groups, notwithstanding that the Applicant had at no time suggested any other social group but that of her family.
There may be cases (it is unnecessary to decide here) where an error of law may be the subject of review, notwithstanding that it was raised in the Tribunal before. But the material before me makes it abundantly clear what the case was for the Applicant so far as concerns membership of a social group. It was only the one matter that the Tribunal was called upon to consider, namely whether what was directed at the Applicant was directed at her because of her family membership. Given the way the case was run, it is hard to see that the Tribunal can be accused of error for not considering other social groups no matter how remote they might be and whether the conduct directed at the Applicant arose because of membership of that social group.
Persecution for Reasons of Imputed Political Opinion
It was part of the Applicant’s case before the Tribunal that she had been threatened by the LTTE who claimed she was an informant and they would shoot her down. In her oral evidence the Applicant said in addition to demanding money from her, the LTTE accused her of being an informant. The Tribunal made no findings as to whether or not these events constituted persecution of the Applicant by reason of a political opinion imputed to her by the LTTE. The Tribunal’s reasons made no reference to the threat to shoot the Applicant and considered the circumstances purely by reference to extortion.
It is said that the Tribunal failed to consider an important aspect of the Applicant’s claims.
There are two answers to the submission. The first, and simplest, is that the finding of the Tribunal on relocation is the end of the case. It is sufficient, unless attacked, to bring about the result that the Applicant must fail. The second is that the Tribunal found factually that the real reason for the treatment against the Applicant was not political but came about because of the Applicant’s wealth. This factual finding sufficed again to lead to the result that the Applicant must fail.
No Evidence Grounds
An administrative tribunal which reaches a conclusion which is unsupported by evidence no doubt commits an error of law. Section 476(1) of the Migration Act 1958 (Cth) provides, subject to subsection (2) of that section, that the fact that there is no evidence or other material to justify the making of the decision will be a ground for judicial review. However, subsection (4) of the same section provides as follows:
“The ground specified in paragraph (1)(g) [the no evidence ground] is not to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
The Applicant’s arguments appear to be based more on s 476(4)(a) than s 476(4)(b).
The difficulty, however, which the Applicant faces has been revealed in a number of decisions. It is that, because there is no particular fact required to be established, in making a finding that a person is not entitled to a protection visa, it will be very difficult, if at all possible, to apply the provisions of s 476(4)(a) so as to make good a no evidence ground: Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27 at 37-8; Doan v Minister for Immigration, Local Government and Ethnic Affairs (Olney J, unreported, 9 April 1997); Ratnayake v Minister for Immigration and Ethnic Affairs (1997) 74 FCR 542 at 552; Magyari v Minister for Immigration and Multicultural Affairs (O’Loughlin J, unreported, 22 May 1997); Karnail Singh v Minister for Immigration and Multicultural Affairs (Mansfield J, unreported, 4 July 1997); Fernando v Minister for Immigration and Multicultural Affairs (Finn J, unreported, 5 November 1997); Abako v Minister for Immigration and Multicultural Affairs (Emmett J, unreported, 18 March 1998) and Chen v Minister for Immigration and Multicultural Affairs (Branson J, unreported, 31 March 1998).
The attempt to frame the matter in the negative appears to be an attempt to overcome the conclusion in these cases.
To illustrate the point, let me take one of the two no evidence grounds that was put, namely that there was no evidence that mistreatment of the Applicant was an indiscriminate abuse of authority.
No doubt it was open to the Tribunal to find that there was an indiscriminate abuse of authority in the particular acts of cruelty that were inflicted upon the Applicant. That, together with the alternative finding on relocation, suffices to answer the point.
However, let it be assumed that it was not open on the evidence before the Tribunal to reach the conclusion that the mistreatment was an indiscriminate abuse of authority. It can hardly be said that it is a pre-requisite, necessary to be established by the Applicant, that the mistreatment of the Applicant was an indiscriminate abuse of authority. It is necessary to analyse what decision the Tribunal is required by law to reach. It is required to form an opinion on whether the person claiming to be entitled to a protection visa falls within the definition of refugee in the Convention as amended by the Protocol. To make its decision it must reach a view as to whether an applicant has a well founded fear of persecution. It cannot be said that it is necessary for it to reach any view on a finding of whether a particular incident constituted an indiscriminate abuse of authority. Clearly enough, s 476(4)(b) is also not applicable.
It was said, perhaps unkindly, by counsel for the Minister that counsel for the Applicant had made the same submission and had had it rejected in the case of Paramathan v Minister for Immigration and Multicultural Affairs (Davies J, unreported, 15 May 1998). In that case, his Honour said:
“Miss Wilkins submitted that the case fell within s 476(1)(g) of the Migration Act and that there was no material to justify the making of the decision. Miss Wilkins submitted that it was not open to the Tribunal to find that the mistreatment in custody which occurred in Colombo was not directed in a discriminatory way to young Tamil males or that the treatment of the applicant in custody was indiscriminate cruelty and not persecution. These submissions misunderstood the operation of s 476(1)(g) and (4). The Tribunal’s decision was based on the material before it and accorded with decision-making in many like cases. In the end, a judgment as to whether persecution was likely or was not likely to occur in Sri Lanka if the applicant was returned and as to the reasons why beatings, detention and torture occur there was very much a matter of assessment by the decision-maker rather than one on which there was or could be any clear or decisive evidence. The Tribunal formed its own view on these matters. Paragraph 476(4)(a) did not apply as the Tribunal did not make a decision in which a particular matter was required to be established. Paragraph 476(4)(b) did not apply for there was no proof that the facts found by the Tribunal did not exist.”
What his Honour there said is likewise applicable to the present case and I would, with respect, adopt it.
As in many of these cases, it is clear that the Applicant has had a horrifying time in her home country. She has failed however because the matters, distressing and horrifying as they are, were found by the Tribunal not to have been directed against her for a Convention reason. She failed, too, before the Tribunal because the Tribunal took the view that relocation to another part of Sri Lanka was a reasonable alternative. Both of these matters involved findings of fact, with which this Court has no jurisdiction to interfere. The Court’s jurisdiction is confined by Parliament to a narrow area of legal error. Unfortunately, the Applicant has not succeeded in showing such error.
Accordingly, the application must be dismissed and the Applicant pay the Respondent Minister’s costs of it.
I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill
Associate:
Dated: October 1998
Counsel for the Applicant: Miss E Wilkins Solicitor for the Applicant: McDonells Solicitors Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 September and 8 October 1998 Date of Judgment: 23 October 1998
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