SZCUU v Minister for Immigration - [2006] FMCA 775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCUU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 775

MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal denied applicant procedural fairness – effect of s.422B Migration Act 1958 – whether Tribunal misunderstood the law – whether Tribunal misunderstood the concept of subjective fear of persecution.

Migration Act 1958 (Cth), s.422B

Abebe v The Commonwealth (1999) 197 CLR 510
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Kuldip Ram v Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (1995) 130 ALR 314
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 166 ALR 641
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural & Indigenous Affairs v W306/01A [2003] FCAFC 208
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170
MZWWP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 105
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73
Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314
SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1493
SZBOO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1010
SBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
VSWT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511

Applicant:

SZCUU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG496 of 2004

Judgment of:

Barnes FM

Hearing date:

9 May 2006

Delivered at:

Sydney

Delivered on:

14 June 2006

REPRESENTATION

Counsel for the Applicant:

Mr B. Zipser

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 3 February 2004.
That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG496 of 2004

SZCUU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 3 February 2004 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Sri Lanka, arrived in Australia in December 2002 and applied for a protection visa. The applicant claimed to be a Christian Tamil and that her late brother had been a prominent politician affiliated with the Tamil United Liberation Front (TULF) and subsequently a member of the Eelam Peoples Revolutionary Liberation Front (EPRLF) who had been assassinated by the Liberation Tigers of Tamil Eelam (LTTE) in 1990. The applicant provided press clippings in relation to her brother’s murder.
The applicant claimed that following her brother’s killing by the LTTE, EPRLF people approached her and asked her whether she would be interested in joining the party and that she refused to join despite their repeated requests because she thought that it would anger the LTTE. She claimed that this displeased senior members of EPRLF.
She claimed that she was constantly harassed for extortion by the LTTE for money and that because she had no other option, she agreed to pay to them in instalments from early 1999 onwards, initially paying 100,000 rupees and later making several payments up to 500,000 rupees.
The applicant claimed that after her return to Sri Lanka (on

30 November 2002) from a visit to the United States of America, members of the LTTE accused her of being an EPRLF supporter and demanded one million rupees from her as compensation for her brother’s campaigns against the LTTE. She claimed that life became very difficult for her because of constant LTTE demands for money at this stage and also that at the same time the EPRLF kept on asking her whether she would join their party. She claimed to fear that if she joined the EPRLF the LTTE would become angry and so she refused to do so. She claimed to fear persecution from LTTE because of their constant “extortion demands and threats” arising from her brother’s past activities with the EPRLF.
She claimed that Tamils from Jaffna and Batticaloa (where she lived) could not live in peace in Colombo, that she was well known in Batticaloa and feared that the LTTE would torture and kill her particularly for escaping from their extortion demands. She claimed that as her brother had campaigned against the LTTE in the past and his mother-in-law also had problems with the LTTE she would face the same sort of problems.
She also claimed to fear threats to her freedom and liberty from the EPRLF who would ask for money and make requests that she join their party and that she feared some quarters of the government as they worked with the EPRLF.
The application was refused and the applicant sought review by the Tribunal. The applicant’s migration agent provided a written submission dated 15 July 2003 addressing aspects of the delegate’s decision. The submission also elaborated on the applicant’s claims to fear persecution on the basis of being a prominent, elderly Tamil woman who had past family political links with EPRLF/TULF. It was claimed that she was continuously subject to extortion from EPRLF and LTTE and the authorities and that many people of the same age group as the applicant and those who had political links in the past were prone to extortion by the Tamil groups. The submission addressed the current situation in Sri Lanka and the progress of peace talks. It was claimed that the applicant did not seek police protection when faced with threats and extortion because she feared persecution “from both sides” and that as a prominent Tamil woman she was “harassed” and subject to extortion by Tamil groups who intended to use her name in their activities. It was claimed that she was subjected to “extortion and threats” following her return from USA. Country information (in particular a press clipping about the need to protect the human rights of Tamil civilians allegedly violated by the LTTE) was provided in support of this claim. The article from the Asia Times of 25 June 2002 referred to increasing extortion and abductions of Tamils by the LTTE, to the LTTE killing deemed enemies or political threats and to other violations of the human rights of Tamil citizens.
The applicant attended a Tribunal hearing. In its reasons for decision the Tribunal recorded that at the hearing it asked the applicant why, in view of her stated claims, she had not applied for refugee status in the United States during her 2002 visit. She told the Tribunal that when she travelled to the United States she “did not have such fear”, but that after her return to Sri Lanka the LTTE came to her house and demanded 10 lacks rupees which they would return to collect in two days time. She claimed they threatened that if she failed to pay the money when they returned they would “take her away”. She left her home area and came to Australia, having deceived the LTTE as she had promised to pay them the money demanded.
The Tribunal recorded that later in the hearing it again asked the applicant why, in light of the troubles she had experienced before her last visit to the USA, she had not sought refugee status in the USA. The applicant referred to the peace talks and her belief that in spite of past problems she would be able to live safely in Sri Lanka. She told the Tribunal that it was only after the LTTE again came and demanded a lot of money and the EPRLF again hassled her to join them, “that she decided she must go to Australia.”
In a post-hearing written submission the applicant’s adviser addressed concerns raised by the Tribunal member during the hearing about why the applicant had not claimed refugee status during a visit to the United States of America. It was claimed that at that time the applicant believed that she would be unlikely to be subjected to further extortion demands because she had already paid money to the LTTE and believed that the peace talks were going to be successful. However on her return to Sri Lanka she had been subjected to “heavy extortion demands” (for one million rupees) as a result of her and her family’s involvement with anti-LTTE rebels and because of “her race”. The submission claimed that the applicant and her family had a long history of being harassed and persecuted for money by the LTTE and that she was under immense pressure, being unable to pay the amount demanded on the last occasion. Further reference was made to reports that the LTTE was continuing to extort money from Tamils and making particularly heavy demands on their Tamil political opponents. Reference was also made to the applicant’s age, gender, Tamil ethnicity and to the fact that she was a supporter of the EPRLF and TULF. It was claimed she had experienced persecution for reasons of race, political opinion and particular social group.
In its reasons for decision the Tribunal outlined the evidence of the applicant, including the evidence given at the Tribunal hearing. It recorded that the applicant had visited Australia for about two months in late 1996 to 1997, the United States for three months in 1998 to 1999 and again for four months from August to 30 November 2002 before departing from Sri Lanka for Australia on 4 December 2002. It noted that the applicant had daughters living in Australia and the United States.
The Tribunal found that the essence of the applicant’s claim was that she had a well-founded fear of persecution because of her imputed political opinions as a supporter of the EPRLF and TULF, her Tamil ethnicity and her membership of two social groups, being a member of a political anti-LTTE family and as an old woman without any family members in Sri Lanka. It dealt with each of these claims separately.
In relation to the applicant’s imputed political opinions, the Tribunal summarised her claims that she had been approached by the EPRLF to join the party in 1990 but refused because she thought it would anger the LTTE and that her refusal displeased senior members of the EPRLF. However it also noted that she had told the Tribunal that the reason neither she nor her husband joined any political party in Sri Lanka (other than being a member of TULF for a short time in the 1960s) was because they were government-employed public servants and therefore could not join any political party.
The Tribunal discussed the submissions from the applicant’s migration agent that one of EPRLF’s main objectives was to seek out and repress LTTE supporters, but noted that the applicant had never claimed to be a supporter of the LTTE but rather of both EPRLF and TULF. It observed that nevertheless the applicant’s migration agent had claimed that the applicant had not only suffered enormous problems at the hands of the LTTE but also made what it described as inconsistent claims that she had suffered at the hands of the EPRLF and the army.
In light of the applicant’s statement about the reason she and her husband had not belonged to any political party and in the absence of any evidence (other than that the applicant was a sister of a politician killed in 1990) that the applicant ever had any political ties at all to any political parties or ever engaged in any political activities, the Tribunal was satisfied that the applicant had no such political ties and had not engaged in any political activities that would have attracted the attention of anyone at all, let alone any political party or the army.
Nor did the Tribunal accept the applicant’s claim that, because of her brother, EPRLF members hassled her to join their political party or that one of the reasons she decided to come to Australia in December 2002 was because the EPRLF again tried to pressure her into joining them. It was satisfied that if the applicant had attracted political interest or political enemies or had suffered any problems at all in Sri Lanka because of her imputed political opinions she would have taken the opportunities available to her to apply for refugee status either in Australia during her 1996 – 1997 visit or during her two visits to the United States of America in 1998 and 2002.
In relation to the applicant’s Tamil ethnicity, the Tribunal accepted that the applicant was of Tamil ethnicity and had lived all of her adult life in the Batticaloa district and that “like most other Tamils living in this District [she] was subjected to (and paid) intermittent demands of money from the LTTE”.
The Tribunal referred to the claims by the applicant’s migration agent that the applicant had been the victim of “extortion” (which was claimed to be a form of persecution) because of her imputed anti-LTTE political opinions and because of membership of a family with known political connections and that the LTTE made its harshest monetary demands of EPRLF members. However, as it was satisfied that the applicant was never a member of the EPRLF, that her brother was killed 12 years ago and that neither she nor her husband had ever had any political profile at all in Sri Lanka, it did not accept that the applicant ever suffered extortion at the hands of the LTTE because of either her imputed political opinion or because she was a member of a family with well-known political connections.
The Tribunal then referred to the fact that in the Tribunal hearing it had asked the applicant why, in light of her stated claims (in particular in relation to extortion demands by the LTTE), she had not applied for refugee status while visiting the USA in 2002. It recorded that the applicant stated that when she had travelled to the USA she “did not have such fear” (of the LTTE) but said that:
on the day following her return…, the LTTE came to her house and demanded 10 lacks rupees and told her that they would return in two days to collect the money, threatening that if she failed to pay on their return they would take her away.
It was also recorded that the applicant told the Tribunal that she went to Colombo the next day and from there travelled to Australia, having deceived the LTTE by promising to pay the money demanded.
The Tribunal accepted that the applicant “may have been approached for money by the LTTE on her return to Sri Lanka, on her own evidence she and her family had been paying money to the LTTE since at least 1990 (after the death of her brother), whilst her husband was alive, and more than once in 1999”. It described her claim that on one occasion the LTTE had abducted her husband to extort money from him and held him overnight but returned him home because he snored so loudly the LTTE were frightened the noise would alert the authorities as to their whereabouts. However the Tribunal found that as the applicant had no political profile it did not accept that the reason the LTTE demanded money from her was because of her imputed political opinions or as a result of her family’s involvement with LTTE rebels, “or (as the LTTE is itself a Tamil political party) because of her Tamil ethnicity”.
Nor did the Tribunal accept that the reason the applicant did not apply for refugee status either during or prior to her most recent visit to the USA was because the peace talks had commenced and she thought she would be able to live safely in Sri Lanka or that “it was only after the LTTE again came to her and again demanded money from her, that she decided to flee to Australia and apply for a protection visa here”.
The Tribunal found on the evidence before it:
As the applicant obtained a 3 month Visitor’s visa issued in Colombo on 13/03/02 which was valid for travel to Australia until 3 February 2003, I am satisfied that before she visited the USA for 4 months from August to December in 2002 the applicant had already formed the intention to again come to Australia to visit her two daughters here and that at the time [she] left Sri Lanka for Australia in December 2002, she neither then had, or now has, a genuine fear of suffering persecution in Sri Lanka either at the hands of the LTTE or from any other person or group.
Finally the Tribunal considered the applicant’s claims in relation to membership of particular social groups, finding in relation to the claim that she feared persecution as a member of a politically oriented and anti-LTTE family that it was satisfied that she was not a member of such a group, her brother having died 12 years ago, that neither she nor any member of her immediate family had been involved in any political activities in Sri Lanka and also that if she had held such a fear she would have applied for refugee status in the USA or Australia during one of her earlier visits.
In relation to the claim that the applicant was an old woman with no family members living in Sri Lanka, the Tribunal found that none of her immediate family members had lived in Sri Lanka for several years and that if she held a well-founded fear of persecution on this ground she would have applied for refugee status in the USA or Australia during one of her earlier visits.
The Tribunal concluded that it was satisfied that the applicant had never suffered persecution in Sri Lanka for a Convention-related reason and that she did not have a well-founded fear of so suffering in the reasonably foreseeable future.
The applicant sought review of the Tribunal decision by application filed in this Court on 27 February 2004. She relies on an amended application filed in Court on 9 May 2006. That application contains three grounds.

The “EPRLF issue”

The first ground is that:
The Tribunal found (at CB 120.10) that it did not accept the applicant’s claim that because of her brother, EPRLF members often hassled her to join their political party. However, the Tribunal did not put its doubts to the applicant about this claim and give her an opportunity to comment. On this basis, the Tribunal denied the applicant procedural fairness and fell into jurisdictional error.
It was contended for the applicant that she made such a claim in connection with her protection visa application and also, according to the Tribunal reasons for decision, at the Tribunal hearing. The Tribunal summarised the applicant’s evidence at the hearing as follows:
The applicant also told the Tribunal that because of her brother EPRLF members often hassled her to join their political party. The Tribunal told the applicant that this type of harassment did not amount to persecution.

The Tribunal found that it did not accept the applicant’s claim that, because of her brother, EPRLF members often hassled her to join their political party or that one of the reasons she decided to come to Australia in December 2002 was because the EPRLF again came and tried to pressure her into joining them. It was submitted that the Tribunal was obliged as a matter of procedural fairness to put to the applicant its concern that it did not believe her, consistent with the approach taken in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511. In written submissions it was contended in relation to s.422B of the Migration Act 1958 (Cth) (the Act) that the applicant relied on the narrow construction of that provision adopted in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 142 FCR 170. However counsel for the applicant acknowledged that, as was submitted for the respondent, this Court is bound by more recent decisions of the Federal Court which support a broad construction of s.422B to the effect that Division 4 of Part 7 of the Act covers the field in relation to the Tribunal’s obligation to accord procedural fairness (see SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 per Branson J at [17] – [18], SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 at [29] per Edmonds J and SBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260 at [19] per Finn J) and that on this basis the applicant could not succeed on this ground. I note that since the hearing, the broader view of s.422B has been adopted by the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairsv Lay Lat [2006] FCAFC 61.
In any event, whatever view one takes of the scope of s.422B, the evidentiary basis for a claim of a lack of procedural fairness is not established. There is no transcript of the Tribunal hearing before the Court. This is not a case in which it is appropriate to draw an inference based on the Tribunal reasons for decision and the other material before the Court as to whether matters were or were not put to the applicant during the Tribunal hearing in the manner contended for by the applicant (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]). Moreover, the Tribunal is not required as an incident of natural justice to put its preliminary conclusions or thought processes to an applicant for comment or to warn her that she might not be believed (see Abebe v Commonwealth (1999) 197 CLR 510 at [187] and Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576). No jurisdictional error is established on the basis contended for in the first ground of the amended application.

“Convention reason issue”

The second ground in the amended application is:
The Tribunal found (at CB 122.5) that, while it accepted that the applicant had suffered demands for money from the LTTE, the demands were not because of the applicant’s Tamil ethnicity on the basis that “the LTTE is itself a Tamil political party”. This reasoning involves a misunderstanding of the law. The LTTE can persecute Tamils even though it is itself a Tamil party. The Tribunal, in stating otherwise, misunderstood the law and hence fell into jurisdictional error.
In its reasons for decision the Tribunal accepted that the applicant was of Tamil ethnicity and had lived all of her adult life in the Batticaloa district of Sri Lanka and that “like most other Tamils living in this district, the applicant was subjected to (and paid) intermittent demands of money from the LTTE”. The Tribunal also accepted “that the applicant may have been approached for money by the LTTE on her return to Sri Lanka”. It found in relation to these claims:
Whilst I accept that the applicant may have been approached for money by the LTTE on her return to Sri Lanka, on her own evidence she and her family had been paying money to the LTTE since at least 1990 (after the death of her brother); whilst her husband was alive; and more than once in 1999. (The Applicant told the Tribunal that on one occasion the LTTE had abducted her husband with the purpose of extorting money from him and had taken him to the forest but that he was only held overnight because he snored so loudly that the LTTE were frightened that the noise would alert the authorities to their whereabouts, so the LTTE took him home the day following his abduction). However, as I have earlier found that the applicant had no political profile, I do not accept the claim that the LTTE demanded money from her was because of her imputed political opinions, or as a result of her family’s involvement with LTTE rebels, or (as the LTTE is itself a Tamil political party) because of her Tamil ethnicity. (emphasis added)
It was contended for the applicant that the Tribunal reasoned that when the LTTE extorted money from Tamils the extortion could not be for a Convention reason (whether for reason of Tamil ethnicity or membership of a particular social group) and that this reasoning was wrong and on this basis the Tribunal fell into jurisdictional error. It was submitted that the Tribunal had misunderstood the law in assuming that just because a group of people targeted members of its own group or members of its own race that could not constitute persecution for a Convention reason. Alternatively it was submitted that the Tribunal had failed to consider whether the targeting by the LTTE of Tamils was targeting members of a particular social group.
Counsel for the applicant referred to the decision in Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 in which the Full Court of the Federal Court considered a claim by a Tamil applicant that she feared persecution (inter alia) because of extortion by Tamil Tigers. The applicant had complained of extortion by the LTTE by force of violence and threats of violence from which the government was unable to protect her. The Tribunal had found that while there was no doubt that the LTTE approached Tamils for funding, its primary reason for selecting individuals as targets for extortion was because of their perceived wealth. It found that the applicant was seen as affluent and, despite the fact that there was a real chance based on past occurrences that the LTTE would make similar demands on the applicant if she were to return to her home, did not regard such activity as persecution for a Convention reason. It had referred to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 in support of this proposition. In that case Burchett J (with whom O’Loughlin and R.D. Nicholson JJ agreed), had rejected (at [12]) an argument that the Tribunal had erred in failing to consider whether a particular applicant had been subject to extortion as a member of a particular social group and stated that apart from the difficulty of seeing the particular social group contended for (wealthy Punjabis living in circumstances which made 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, 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.
However, as Burchett and Lee JJ pointed out in Perampalam at [16], the statement in Ram that extortionists are not implementing a policy but simply extracting money from a suitable victim and that their forays are “disinterestedly individual” was made in the context of an express finding by the Tribunal in that case that the applicant had not satisfied it that the extortion was anything other than a criminal act, or that he was targeted for any reason other than that he was known to have money.
In contrast their Honours pointed out that in Perampalam the Tribunal had found the opposite, stating “there is no doubt that the LTTE approaches Tamil[s] for funding”. It was suggested at [16] that the fact that particular Tamils were chosen because of their perceived wealth was not legally relevant and that:
extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention, and Ram does not suggest it can. On the evidence it was plainly open to the Tribunal to conclude that the fanatical combatants in the LTTE saw it as the obligation of every Tamil to make sacrifices, willingly or by coercion, for Tamil Eelan. No doubt, it was for this reason that the finding was made “that the LTTE approaches Tamil[s] for funding. Motivation of this kind is sufficient for the purposes of the Convention. The words “persecuted for reasons of ‘look to the motives and attitudes of the persecutors (see Ram at 569), and if the LTTE practises extortion, with violence and threats of violence, against Tamils, the government being unable to provide protection, because the LTTE holds that Tamils must be coerced into supporting it, the terms of the Convention are satisfied.
It was contended for the applicant that, as in Perampalam, the Tribunal in this case misunderstood the law on this point or, at a minimum, erred in failing to explain why the case before it was distinguishable from Perampalam.
Counsel for the respondent contended that reading the Tribunal decision fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), it had not been established that in making the findings referred to above the Tribunal was laying down a general proposition that a political party of a particular ethnic composition could never persecute individuals of the same ethnic group. Rather it was said to be considering the circumstances of the applicant’s own case, which the Tribunal had already explained were that she was a Tamil in Batticaloa who, like other Tamils in Batticaloa, was the subject of intermittent demands for payment of money from the LTTE. On that factual basis the Tribunal then considered whether it was satisfied that the reason for the demands of money that the LTTE made of the applicant and the other Tamils was a Convention reason (such as race) or whether it was not. In other words it was submitted for the respondent that the Tribunal was not denying the possibility that extortion by members of the same race or particular social group may be motivated by race, but simply making a factual finding that this was not so on the facts of this case, in that it did not accept that the LTTE would be motivated by ethnicity as opposed to a non-Convention reason. It was pointed out that the Tribunal did consider, and reject, the applicant’s claim to have a well-founded fear of persecution as a member of a politically orientated and anti-LTTE family on the basis that it was not satisfied that the applicant was a member of such a group and because if she held such a fear she would have applied for refugee status on one of her earlier visits to USA or Australia. Reference was also made to what was said in Ram v Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (1995) 130 ALR 314 per Burchett J at [12] as set out above.
It was suggested that in Perampalam the Full Court had made it clear that it would have been open to the Tribunal to come to the conclusion that there was no Convention motivation of race for the extortion claimed but in that case the Tribunal had failed to consider the issue and hence fell into error. It was said that in this case the Tribunal did consider whether ethnicity was a motivation and found that it was not, that being a factual finding open to the Tribunal on the material before it. It was also suggested that it was logical and understandable for the Tribunal to reason that an ethnically-based political party would not be motivated by ethnicity in demanding money from individuals who happened to be of the same ethnicity as the composition of the political party.
However, there was a distinction between the findings of the Tribunal in Ram and the findings of the Tribunal considered in Perampalam. In this case, as in Perampalam, the Tribunal made no express finding that the applicant had not satisfied it that the extortion was anything other than a criminal act or that she was targeted for any reason other than that she was known to have money. Instead, in Perampalam there was an express finding that the LTTE approached Tamils for funding. Similarly, in this case the Tribunal accepted that like most other Tamils living in the Batticaloa district the applicant was subjected to and paid intermittent demands of money from the LTTE. It was in such circumstances that their Honours suggested in Perampalam (at [16]): “Extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention and Ram does not suggest it can”.
As was pointed out in Perampalam the words “persecuted for reasons of” look to the motives and attitudes of the persecutors (also see Ram at [569]). In this case the evidence before the Tribunal consisted not only of the applicant’s claims about past subjection to and payment of intermittent demands of money to the LTTE but also a claim that the applicant had been a victim of extortion that was a form of persecution and was subjected to threats and that the government could not protect her. It was clearly submitted that the LTTE coerced Tamils. It was claimed that the reason was not only imputed political opinion (anti-LTTE), and membership of a particular social group (her family which had well-known political connections) but also the applicant’s race (Tamil).
It is notable that the applicant’s claims in this respect related not only to a fear of being killed or otherwise physically harmed but that she also claimed to fear further extortion itself. In the submission of

15 July 2003 the applicant’s migration agent restated the applicant’s claim generally on the basis of her being a Tamil who had family links with the EPRLF/TULF and claimed that she had been subject to extortion from the LTTE for Convention reasons stating “Many people of the same age group as the applicant and those who had political links in the past are still prone to extortion by the Tamil groups. Evidence attached herewith”. Attached to the submission was an extract from an Asia Times article of 25 June 2002 which stated that Colombo found itself in a position of having to take up the case of the human rights of Tamil civilians allegedly violated by Tamil Tigers in the north and east of Sri Lanka, suggesting that Tamils were “leaving a trail that affirms a scant regard for the human rights of their kin, the Tamil civilians. Human rights groups have identified the most glaring: extortion, kidnap for ransom, forced recruitment of child soldiers and hostility towards Tamil holding an opposing view”.
The article went on to discuss instances of extortion, with particular reference to an example of extortion from a bank in Batticaloa. It stated that the Tigers had always maintained a tight control on life in the areas they controlled during the separatist struggle and that deemed enemies or political threats from the Tamil community had been killed. A further internet article was provided which referred to LTTE assassination squads aimed at prospective candidates from rival Tamil political parties. The applicant’s adviser claimed the authorities were either unwilling or unable to protect the applicant.
In the context of this information and the manner in which the applicant’s claims were presented, the only consideration of the applicant’s Tamil ethnicity in relation to her claims of extortion because of race (as distinct from those based on her imputed political involvements and her family’s involvement with LTTE rebels) is the Tribunal’s statement that it did not accept the claim that the LTTE demanded money from her because of her Tamil ethnicity “as the LTTE is itself a Tamil political party”.
Such a finding does involve an assumption that because a group of people (in this case the LTTE) targets members of its own race or ethnicity that cannot constitute persecution for a Convention reason. As in Perampalam, it was unaccompanied by any detailed assessment of the motives and attitudes of the persecutors (Ram at 589). Contrary to the situation in Ram, there was no express finding that the applicant had not satisfied the Tribunal that the extortion was anything other than a criminal act, or that she was targeted for any other reason other than that she was known to have money, or, indeed, a finding that victims of extortion in the relevant part of the country in issue were diverse and did not form a particular social group. It was in that context that the Tribunal in Ram had found that there was no Convention reason for the applicant’s claimed fear of persecution by reason of membership of a particular social group and that Burchett J, with whom O’Loughlin and Nicholson JJ agreed, had found that on the evidence before it the Tribunal had not erred.
What was said in Ram must also be seen in light of Perampalam and also Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73. In that case the majority (Finn and Dowsett JJ) found an error of law in circumstances where (again similar to the present case) the Tribunal had accepted the existence of persecution of a race (Tamils) through extortion, but nonetheless found that the acts of an army officer directed at the applicant were not persecution for reason of race. It is relevant to note that their Honours referred to what Burchett and Lee JJ had stated in Perampalam with approval (at [42]) and suggested at [46] – [48]:
46. As this Court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a Convention reason: see eg Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 166 ALR 641 at 645 – 646. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (i.e. to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognises, though, is that the reason why the extorting party has that interest may or may not have foundation in a Convention reason. The extorted party may have been chosen specifically as the target of extortion for a susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a Convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.
47. Likewise in the course of practising extortion on a person, self-interested action may be taken against the extorted party for the benefit and/or protection of the extorting party. Again it can be said that in taking such action, the extorting party’s interest in the effect of it on the other is a “personal interest”. But depending on whether the extortion itself is being practised for a reason that includes a Convention reason, the action is in its setting may nonetheless be relevantly persecutory in character.
48. In a particular setting, then extortion can be a multi-faceted phenomenon exhibiting elements of both personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “Was the perpetrator’s interest in the extorted personal or was it Convention related?” In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator’s part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.”

In this case the Tribunal accepted that like most other Tamils in Batticaloa district the applicant was subject to intermittent demands of money from the LTTE. However the only discussion of whether this was for reason of race was its assumption that the LTTE’s demands of money could not be for such a reason because of the applicant’s Tamil ethnicity because it was itself a Tamil political party. Such reasoning involves a misunderstanding of the law. Had the Tribunal understood how its inquiry was to be undertaken, it would have had to consider whether the totality of the LTTE’s actions in all the circumstances had a Convention-related character (even though such actions may also have been motivated by some other factor such as the wealth of the individual victim). It did not do so. As Moore J stated in Rajaratnam at [10] (albeit in dissent in relation to the particular issue):
When extortion is involved, the conduct of a persecutor may arise in the context of a personal or business relationship and the conduct may be engaged in because of personal attributes of the victim. A person who is subjected to extortion will often have personal characteristics (most obviously wealth or the appearance of wealth or at least property available to meet the demands of the extortionist) that have attracted the attention of those engaging in the extortion. Knowledge of those attributes may arise because of some personal or business association between the persecutor and victim. However, the existence of those characteristics and the fact that they may have attracted attention through a personal or business relationship does not remove from consideration the possibility that the race or ethnicity of a victim is also a factor, and perhaps a critical factor, influencing the conduct or motivating those engaging in the extortion and, perhaps that there is no effective protection offered to people of that race or ethnicity. So much is apparent from the consideration of the applicable legal principles discussed by Burchett and Lee JJ in Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274; 55 ALD 431 particularly in [15] and [16].
Jurisdictional error is established on the basis contended for by the applicant.

“Subjective fear issue”

The third ground relied on in the amended application is as follows:
The Tribunal found that “at the time [the applicant] left Sri Lanka for Australia in December 2002 she neither then had or now has a genuine fear of persecution in Sri Lanka …”. The Tribunal fell into jurisdictional error in making this finding. Specifically, in light of the evidence accepted and not rejected by the Tribunal and its earlier findings, the Tribunal has misunderstood the concept of subjective or genuine fear of persecution in Art 1A of the Convention.
It was contended for the applicant that in order for an applicant to be a refugee, among other matters the applicant must have a “fear of being persecuted” under Article 1A of the Refugees Convention. It was acknowledged that the Tribunal reasons for decision made it clear that the Tribunal explored this issue with the applicant in the hearing. It twice asked the applicant why in light of her stated claims, she had not applied for refugee status while she was in the USA on her most recent visit. The applicant answered this question as set out above. It was also addressed in a different way by her migration agent after the hearing. The Tribunal considered these answers and then came to the conclusion with which the applicant now takes issue.
It was contended however that the evidence before and findings of the Tribunal indicated that the applicant claimed that the LTTE had extorted money from her in the past. It was suggested that the Tribunal accepted that it was likely that the LTTE would extort money from her in the future and did not dispute that such extortion might constitute persecution. There was also evidence that the applicant disliked paying to the LTTE. She had given evidence that the LTTE had abducted her husband for one night for the purpose of extortion (and this claim was not rejected) and that she had tried to avoid paying 10 lacks rupees to the LTTE shortly before she came to Australia. It was submitted that a question arose as to why, in the light of such matters, it did not follow that the applicant had a genuine fear of persecution. It was further submitted that the logic of the Tribunal in finding that the applicant did not have a genuine fear of persecution because by March 2002 (before her trip to the United States) she had formed the intention of coming to Australia on a visitor visa, was unclear.
On this basis it was contended that the Tribunal reasons for decision indicated that the Tribunal had misunderstood the requirement in Article 1A of the Refugees Convention of a genuine or subjective fear of persecution or that the reasons were illogical or irrational, in either case giving rise to jurisdictional error. This last aspect of the ground was added to the amended application filed in Court. However counsel for the respondent was content to address it in oral submissions.
Counsel for the applicant referred to the claims made by the applicant. While the Tribunal reasons for decision indicate that at the Tribunal hearing the applicant told the Tribunal that she had not applied for refugee status while in the United States because when she travelled to the USA (in August 2002) she “did not have such fear”, it was submitted that this answer was unclear and was not responsive to the question recorded, as it was not clear what she did not fear at that time. However the Tribunal stated that the applicant continued that she had returned to Batticaloa and that on the next day the LTTE came to her house and demanded money from her and said they would return in two days and threatened to take her away if she did not pay the money, that she went to Colombo the next day and from there to Australia having deceived the LTTE. The Tribunal recorded this response in its findings and reasons but did not address the implicit claim that this event was what gave rise to the applicant’s fear of persecution by the LTTE.
According to the Tribunal, when it again asked why, in light of her stated claims about what had occurred prior to her most recent visit to the USA, she had not sought refugee status in the USA, the applicant explained that there had been some peace talks and she thought that in spite of the problems she had previously encountered she would be able to return and live safely in Sri Lanka. In its description of what occurred in the hearing the Tribunal recorded that the applicant said that it was “only after” the LTTE again came and demanded a lot of money and the EPRLF came and hassled her unsuccessfully to join them that she decided that she must “go to Australia”. The Tribunal was not satisfied that it was “only after” these demands that the applicant “decided to flee to Australia and apply for a protection visa”. However it was contended that the fact that the applicant decided after this event that she must go to Australia and remain in Australia permanently was not inconsistent with her earlier intention to visit Australia on the visitor visa obtained in March 2002.
It was also contended for the applicant that persecution could occur in a variety of ways including a level of harassment or discrimination which, although serious, did not involve a threat to liberty or life and that the mere fact that a person returned to his or her country of origin (as the applicant did to Sri Lanka from America) and did not apply for a protection visa in the country they were returning from did not of itself necessarily mean that the person did not have a genuine or subjective fear of persecution. It was suggested that extortion was principally economic and that it would be possible for a person to be willing to return albeit for a short time to a country in which such person lived and that this did not necessarily mean such a person did not have a fear of persecution.
It was pointed out that the Tribunal did not make a finding that the level of harm claimed or the level of demands made on the applicant was not sufficient to constitute persecution or that the LTTE demanded money from a large group of persons. Rather it accepted that the LTTE targeted Tamils (finding that like other Tamils living in the Batticaloa district the applicant was subjected to (and paid) intermittent demands of money from the LTTE). It was suggested that, having left open the possibility that the applicant’s experience of extortion could constitute persecution, in light of the other evidence referred to above it must be that the Tribunal had made an implicit assumption that the mere fact that a person did not apply for a protection visa in a previous country and/or returned to his or her home country before coming to Australia on a previously obtained visitor visa meant that such applicant did not have a genuine fear of persecution. It was contended that such facts and such assumption indicated that the Tribunal had misunderstood the test for what constitutes a fear of persecution within the Refugees Convention.
The respondent submitted that the Tribunal was not laying down a general proposition as contended for by the applicant. Rather it was said to be assessing as a factual issue the existence or otherwise of a subjective fear of persecution on the part of the applicant. It was submitted that it was open to the Tribunal on the material before it to reach the conclusion that it did, having regard not only to the matters referred to by the applicant, but also to the fact that the applicant had been subject to intermittent demands of money since at least 1990 and more than once in 1999, had visited Australia in 1996, the United States in 1998 and 2002 and had then come to Australia after her return to Sri Lanka late in December 2002. It was also said to be apparent on the facts that the applicant had children in both the United States and in Australia and also that, despite having money demanded of her since at least 1990, she had not claimed refugee status on any of the previous three overseas visits. In addition the evidence indicated that before she left for the United States she had already arranged a visitor visa to come to Australia which she ultimately used.
Counsel for the respondent contended that in these circumstances it was open to the Tribunal to reject the applicant’s explanation that she had only thought to claim refugee status after her return from the United States because of the demand for money that was made of her then and/or because the peace talks were not going to be as effective as she had hoped and that in so doing the Tribunal had regard to the applicant’s explanation for not claiming refugee status earlier but rejected it. It was submitted that whether the applicant had a subjective fear of persecution at the time she came to Australia or at the time of the Tribunal’s decision was a factual issue for the Tribunal.
The question of whether an applicant has a well-founded fear of persecution is a matter for a Tribunal in determining whether the applicant meets the elements of the definition of “refugee” in Article 1A(2) of the Refugees Convention. In Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 570 Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ identified four such elements:
The definition of ‘refugee’ in Art 1A(2) of the Convention contains four key elements: (1) the applicant must be outside his or her country of nationality; (2) the applicant must fear ‘persecution’; (3) the applicant must fear such persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’; and (4) the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.
It has been suggested that the definition of refugee in Article 1A(2) contains both subjective and objective elements and requires the existence of a subjective fear of persecution in fact held by the applicant which is a fear of persecution for a Convention reason (see Guo, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 389, 396, 402 and 429 and Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 658.
In light of my findings in relation to this ground it is not necessary to consider the issue of whether the notion of subjective fear should be rejected as an element of the definition of refugee. This issue was not addressed in submissions but see SZBOO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1010 at [11] – [12] per Raphael FM and MZWWP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 105 at [26] – [36] per Reithmuller FM discussing the views of Professor Hathaway in “Is there a Subjective Element in the Refugee Convention’s Requirement of ‘Well-Founded Fear’” (2005) 26 Michigan Journal of International Law 505.
First, insofar as it was contended for the applicant that there is illogicality in the Tribunal’s reasoning, there is clear authority that want of logic does not, of itself, constitute jurisdictional error (see NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235, VSWT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286). Even if there may be said to be a lack of logic in the Tribunal finding that as the applicant had obtained an Australian three month visitor visa in March 2002 valid for travel until February 2003, it was satisfied not only that the applicant had already formed an intention to visit her daughters in Australia before her August 2002 trip to the USA but also: “that at the time she left Sri Lanka for Australia in December 2002, she neither then had, or now has, a genuine fear of suffering persecution in Sri Lanka either at the hands of the LTTE or from any other person or group, that would not of itself constitute jurisdictional error”, that does not, of itself, constitute jurisdictional error.
However a lack of logic may point to an underlying jurisdictional error (see Minister for Immigration & Multicultural & Indigenous Affairs v W306/01A [2003] FCAFC 208 at [41] per French and Hill JJ) and in this case the Tribunal’s reasoning in relation to the applicant’s subjective fear does reveal jurisdictional error. The Tribunal accepted that the applicant “may have been approached for money by the LTTE on her return to Sri Lanka” in December 2002. It did not accept (although it gave no reasons for this other than the existence of the prior visitor visa application) “that it was only after the LTTE again came to [the applicant] and demanded money from her, that she decided she must flee Australia and apply for a protection visa here”. The Tribunal had initially outlined the applicant’s claims that in December 2002 the LTTE not only demanded a very large sum but also that (unlike on earlier occasions where the Tribunal found that she paid the money demanded) on this occasion, faced with a threat that if she failed to pay the LTTE would ‘take her away’, the applicant did not pay the money she promised, but instead deceived the LTTE and left the country.
However the Tribunal made no finding on this claim (insofar as it went beyond a claim that the applicant was approached for money by the LTTE on her return to Sri Lanka). Nor did it address her claim to fear not only extortion but also ‘threats’ from the LTTE and the consequences of her deception and failure to pay the large sum sought by the LTTE in December 2002. It appears that the Tribunal determined whether the applicant had a subjective fear of persecution in the future based on a misunderstanding of the distinction between her claims of past successful extortion by the LTTE and what she feared on return. It is clear from the Tribunal’s findings that it drew no distinction between the nature of the claimed events of December 2002 and earlier successful demands for money by the LTTE.
Insofar as the Tribunal relied on the fact that the applicant returned to Sri Lanka (not having applied for a protection visa in USA), such finding does not address her claims about the subsequent unsuccessful LTTE extortion attempt and the threats she experienced. The bare statement rejecting the applicant’s claim that it was only after the LTTE “again” came to her and demanded money that she decided to flee to Australia and apply for a protection visa does not address the different nature of the claim the applicant made about the events of December 2002 and the extent to which that provided a basis for a well-founded fear of persecution should she return to Sri Lanka. The Tribunal did not make any finding that what the applicant claimed to have experienced did not constitute persecution. Indeed it left open the possibility that extortion (as such) could be persecution, let alone extortion and threatened consequences if demands were not met.
In these circumstances, it is apparent the Tribunal proceeded on the erroneous assumption that the mere fact that the applicant did not apply for a protection visa in a country visited and returned to her home country before coming to Australia (for which she already held a visitor visa) meant that she did not have a subjective fear of persecution (thus misunderstanding the test for what constitutes a fear of persecution under Article 1A of the Refugees Convention). In the alternative the Tribunal’s failure to address in its findings and reasons the claim the applicant put to it about the events of December 2002 (beyond the fact of an approach for money) may be characterised as a failure to understand and address (beyond an earlier recital of claims which does not suffice) the conceptually distinct aspects of the applicant’s claims about what occurred in December 2002 (see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42] per Allsop J, Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at [24] and SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364 at [16] – [18]).
As jurisdictional error has been established the matter should be remitted to the Tribunal for reconsideration according to law.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 14 June 2006.