Suresh Sambandan v Minister for Immigration and Ethnic Affairs

[1997] FCA 563

CATCHWORDS

MIGRATION - refugee status - whether applicant had a well-founded fear of persecution by reason of membership of a particular social group - whether class of wealthy people a particular social group - whether Refugee Review Tribunal engaged in necessary degree of speculation about future conditions in Sri Lanka

WORDS AND PHRASES - “particular social group”

Migration Act 1958 ss 5(1), 31, 36, 475, 476

Migration Regulations  reg 2.03, Sch 2, cl 866.2

Ram v. Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565.

“Applicant A” v. Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331.

Morato v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401.

Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

SURESH SAMBANDAN V. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NO. WAG 90 of 1995

Judge:             GRAY J.

Place:              MELBOURNE

Date:              30 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
VICTORIA DISTRICT REGISTRY  )          No. WAG 90 of 1995
  )
GENERAL DIVISION  )

B E T W E E N:

SURESH SAMBANDAN

Applicant

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

JUDGE:         Gray J.

PLACE:         Melbourne

DATE:  30 June 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. The applicant pay the respondent’s costs of the appeal.

Note:              Settlement and entry of orders is dealt with in Order 36 of the Federal   Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA     )
  )
VICTORIA DISTRICT REGISTRY  )          No. WAG 90 of 1995
  )
GENERAL DIVISION  )

B E T W E E N:

SURESH SAMBANDAN

Applicant

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

JUDGE:         Gray J.

PLACE:         Melbourne

DATE:  30 June 1997

REASONS FOR JUDGMENT

By his application, which was filed on 18 August 1995, the applicant sought review by the Court of a decision of the Refugee Review Tribunal, affirming a decision of a delegate of the Minister for Immigration and Ethnic Affairs, that the applicant is not entitled to a protection visa.  The decision of the delegate was made on 25 March 1992.  The decision of the Refugee Review Tribunal was made on 21 July 1995. 

Section 36 of the Migration Act 1958 (“the Act”) provides as follows:-

“(1) There is a class of visas to be known as protection visas.
 (2)  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

“Refugees Convention” is defined by s 5(1) of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. “Refugees Protocol” is defined in the same sub-section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Pursuant to s 31 of the Act, regulations made under the Act may prescribe criteria for a visa or visas of a specified class, including the class created by s 36. Regulation 2.03 of the Migration Regulations provides that the prescribed criteria for the grant to a person of a visa of a particular class are set out in Schedule 2 to the regulations. Subclass 866 of Schedule 2 relates to protection (residence) visas. Clause 866.2 sets out the primary criteria, which all applicants must satisfy. So far as relevant, it provides as follows:

“866. 21 Criteria to be satisfied at time of application
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
(a)         makes specific claims under the Refugees Convention;

.......

866.22 Criteria to be satisfied at time of decision

866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”

Australia is bound by the Convention and the Protocol and therefore has protection obligations to persons who are refugees as defined therein.  A refugee so defined is a person who:

“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The Refugee Review Tribunal “accepted that the Applicant’s experiences and his knowledge of the volatile security situation in Sri Lanka are the source of a genuine subjective fear of persecution”, but nevertheless held that “such a fear is not well-founded as he does not face a real chance of being persecuted for a Convention reason should he return to Sri Lanka.”

The applicant sought to base his case before the tribunal on a number of grounds.  The tribunal summarised his case in the following passage in its reasons for decision:

“The claims of the Applicant are based on his Tamil race, his Christian religion, his political opinions which oppose those of the LTTE and the Government and his membership of particular social groups, namely, relatively wealthy business people and high caste Tamil Hindus.

His fears centre on being persecuted by members of the Liberation Tigers of Tamil Eelam (LTTE, also known as the Tamil Tigers) who would like to recruit him but also view him as a traitor because he does not speak their language and has not supported that group.  He opposes their policies of a separate Tamil state (Eelam) and is repelled by their recruitment of young children to fight for their cause.  He states that the Tigers are largely low-caste Hindus and bear animosity towards the Applicant because his father is a high caste Hindu and they believe the Applicant to belong to the same caste, although he is a Christian.  Further, he is denied freedom of speech because if he speaks publicly of his political opinions he will be killed by the Tigers.  On the other hand, he fears that the Sri Lankan authorities may mistreat him on suspicion of belonging to the Tigers and that their suspicions are increased because of the Applicant’s muscular build and the fact that he only speaks Sinhalese.  In respect of his language, he claims that the security forces believe that he uses his language to act as an information gatherer for the Tigers. 

The Applicant also fears members of the Janatha Vimukthi Peramuna (“JVP”), a patriotic Marxist/Maoist group which has no hesitation in resorting to violence to achieve its aims.  He says that both the LTTE and the JVP make threats in order to extort money from him.  Even in Perth, he has been telephoned by anonymous callers and had demands placed on him to pay money.  Twice he has handed over money in these circumstances as he believes that failure to do so would result in harm to his family in Sri Lanka.  He believes these Perth operatives are acting for the LTTE.  In addition, because his father is a wealthy Attorney and businessman in Colombo, he fears he will be targeted for kidnap, ransom or extortion not only by members of the JVP and LTTE, but also by Sinhalese thugs and members of the security forces who act with impunity in demanding bribes. 

The Applicant is a Tamil Christian who only speaks Sinhalese.  As the state religion is Buddhism, he is discriminated against in practising his religion.  He stated that recently some property was damaged after the Pope proclaimed that Buddhism was a philosophy rather than a religion, and he said that in previous times of turmoil in 1958 and 1983, non-Buddhists had been brutally killed.  He also said that neither Hindu Tamil nor Buddhist Sinhalese employers would allow him to work and that he would not be able to obtain work.  In any case, his employment situation is exacerbated by the fact that he cannot speak Tamil and would therefore not be able to find employment with Tamil employers.

The Applicant also fears violence at the hands of the Sinhalese general public whose hatred of Tamils has continued to build as the war between the Tigers and the Government has gone on and Sinhalese soldiers, police and other military people have been killed by the Tigers, leaving behind grieving families.  He believes that it would not take much for a Sinhalese member of the public or a security official to take the opportunity to kill him.  Because of his muscular build he is more noticeable than other Tamils and the security forces perceive him to be more dangerous than other more lightly built Tamils.”

Following that summary, the tribunal devoted twenty-four pages of single-spaced typing to expressing its findings of fact and its conclusions in relation to the applicant’s claim. 

The applicant is clearly concerned that the tribunal did not reach conclusions favourable to his claim to be entitled to protection by Australia under the Convention and the Protocol.  The material filed by him included an affidavit thirteen pages long, containing evidence and factual allegations on issues which were canvassed by the tribunal.  Counsel for the respondent took objection only to one paragraph of this affidavit, which contained the applicant’s personal opinion as to the likely future of Sri Lanka.  Counsel for the applicant recognised that this material was inadmissible and did not press his attempt to rely on it.

A decision of the Refugee Review Tribunal is judicially-reviewable, pursuant to s 475 of the Act. Section 476 limits the grounds on which application may be made for review by the Court of a judicially-reviewable decision. They are not grounds which would permit the Court to overturn findings of fact made by the tribunal, other than on the ground that there was no evidence or other material to justify those findings of fact. Nor would they permit the Court to make its own findings of fact, based on new evidence.

In the result, the applicant based his case in the Court on two arguments, both of which were said to raise the ground for which provision is made by s 476(1)(e) of the Act, namely:

“that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision”.

Counsel for the applicant contended that the tribunal had made such an error of law in two respects.  The first was in failing to hold that the applicant had a well-founded fear of persecution by reason of membership of a particular social group.  The second was the failure of the tribunal to engage in the necessary degree of speculation as to the state of affairs in Sri Lanka in the foreseeable future, in determining whether there was a real chance of persecution of the applicant if he were to return to Sri Lanka.

With respect to the first of these arguments, if the applicant were to succeed in persuading the Court that the tribunal fell into error of law, he needed to persuade the Court that the tribunal was bound to find that the applicant was a member of a particular social group, within the meaning of that expression as used in the Convention.  The group for which the applicant contended was wealthy Tamils.  On this issue, the tribunal made the following relevant findings of fact: 

“....threats to obtain money have been a traditional part of the armoury of various security and militant groups in Sri Lanka.” 

“It is clear that extortion is not directed at the victims because they are of a particular race or religion as the Applicant has argued.  The available information leads to a conclusion that some people who are wealthy or perceived to be wealthy are the targets of extortion, regardless of race, religion, nationality or political opinion. .... the evidence shows that many people from a diverse cross-section of society in Colombo are subject to extortion, including Tamils, Muslims, Sinhalese, businessmen, returnees from overseas, citizens with relatives overseas and others who are seen to be wealthy.  The perpetrators may be members of political groups, security officials or criminals not associated with those groups.  In each case, the victim is targeted for no other reason than he or she is believed to possess wealth.”

The tribunal also drew attention to the fact that it was the applicant’s case that he was not wealthy but his father was and that he expected to be the target of extortion threats because he may be perceived as being wealthy.  The tribunal rejected the applicant’s evidence that he had been the target of extortion while living in Perth during 1992 and 1993.  It did so on the basis of a view which it formed as to the applicant’s credit on this issue, given that he had made his claim about such extortion at a late stage.  The tribunal concluded that extortionate demands for money were not for a Convention-related reason.  In doing so, it relied on Ram v. Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565.

The applicant was unable to challenge these findings of fact as being based on any error of law.  He was therefore forced to argue that the tribunal erred in law by coming to the wrong conclusion on the basis of them.  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.  In that case, a Sikh, who left the Punjab to work in Saudi Arabia and returned home ten years later with savings, left again after handing over a substantial sum of money to masked men who invaded his home at night and demanded money, with threats to kill him on their return if he did not pay further sums.  In that case, the tribunal made a finding similar to the finding of the tribunal in this case, to the effect that the victims of extortion in the Punjab were diverse.  The issue was therefore raised very clearly as to whether wealth alone constituted a sufficient link among persons to lead to the conclusion that they were a particular social group, for the purposes of the Convention.  The Court held that they were not.  Ram’s case was referred to subsequently, without disapproval, by several of the members of the High Court of Australia in “Applicant A” v. Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. See, in particular, pp. 340-341, per Dawson J., 375 per Gummow J., and 379, 382, 384 and 391, per Kirby J.

A reading of the judgments in Ram and Applicant A, and the judgments in the Full Court in Morato v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, leads to the conclusion that a “particular social group”, for the purposes of the Convention, is a very elusive concept. There is a recognition of the need for a group, rather than simply a collection of individuals, but a variety of views have been expressed as to how such a group might be constituted, or recognised. There is a danger that Courts will construct guiding principles around the term, which may prove to be unduly restrictive in particular cases. Resort must always be had to the terms of the Convention itself. I find it difficult to achieve intellectual satisfaction with the reasoning in Ram’s case, especially in light of the remarks which R.D. Nicholson J. added to his expression of agreement with the reasons for judgment of Burchett J., at pp. 570-571. I also find myself preferring the judgment of Kirby J., in Applicant A to the reasoning of the majority.

There is no scope for the particular views of a judge at first instance to be given free reign when there exists authority governing the situation.  In my view, the circumstances of the present case cannot be distinguished relevantly from those in Ram’s case.  It follows that I must take the view that, in the present case, the tribunal was obliged to hold that the attribute of wealth alone did not constitute a sufficient factor to make those possessing it in Sri Lanka members of a “particular social group”.  This being the case, the applicant’s argument that the tribunal was bound to hold that the wealthy in Sri Lanka constituted a particular social group cannot be sustained.  In the circumstances of this case, it was even more difficult for the applicant to sustain it, when he contended (as he did in respect of so many of his claims) that he was not actually a member of the relevant group but might only be perceived to be so.

The applicant’s second argument was that the task of the tribunal necessarily involved looking forward and making an assessment of what might happen to the applicant if he were to return to Sri Lanka.  The tribunal was required to engage in a degree of speculation as to future conditions in Sri Lanka, in order to apply correctly the “real chance” test, enunciated by the High Court of Australia in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. By concentrating on what had happened to the applicant in the past, particularly on the two occasions on which he had visited Sri Lanka since coming to Australia, the tribunal did not approach this task correctly.

It is true that the emphasis in the reasons for decision of the tribunal is on the past.  This is because the tribunal was evaluating the many claims of the applicant as to the reasons why he should be regarded as a person with a well-founded fear of persecution.  The tribunal had a duty to consider all of the material the applicant put before it and to evaluate it and to make findings of fact.  The events of the past were an important aspect of this process.  It must be remembered, however, that the entire process was directed to the consideration of the essential question before the tribunal, namely whether the applicant’s subjective fear of persecution was objectively well-founded.  In the terms of Chan’s case, this involved the question whether there was a real chance of persecution of the applicant, for a Convention reason, if he were to return to Sri Lanka.  Thus, the whole process of reasoning in which the tribunal engaged was directed to determining the reality of any chance of persecution, should the applicant return to Sri Lanka.  The tribunal did not neglect its proper task in this respect.  The tribunal evaluated each of the applicant’s claims by reference to past events, in order to assess the validity of those claims.  It reached the conclusion that none of those claims was valid.  The logical conclusion was that there was not a real chance of persecution of the applicant for a Convention reason should he return to Sri Lanka in the future.  This was a legitimate mode of reasoning and did not disclose an error of law.

Accordingly, it is necessary for me to dismiss the applicant’s appeal and to order that the applicant pay the respondent’s costs of the appeal.

Counsel for the applicant:  Mr R. Skinner
Solicitors for the applicant:  Wisewoulds

Counsel for the respondent:  Mr W. Mosley
Solicitors for the respondent:  Australian Government Solicitor
Date of Hearing:        7 May 1997
Date of Judgment:     30 June 1997

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of the Honourable Justice Gray

Associate:

Date: