SZEPY v Minister for Immigration & Anor - [2006] FMCA 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPY v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 31

MIGRATION – RRT decision – Sri Lankan Tamil feared LTTE extortion – Tribunal found no Convention reason – misconceived extortion claims – failed to consider whether extortion by reason of membership of particular social group – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441

Applicant:

SZEPY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3181 of 2004

Judgment of:

Smith FM

Hearing date:

26 October 2005

Date of Last Submission:

7 November 2005

Delivered at:

Sydney

Delivered on:

27 January 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the First Respondent:

Mr G Kennett

Solicitors for the Respondents:

Phillips Fox

ORDERS

The applicant has leave to file a further amended application setting out only the grounds relied upon by her counsel in his written and oral submissions.
Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 12 October 2004 in matter N04/48745.
Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 2 March 2004.
Order the first respondent to pay the applicant’s costs in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3181 of 2004

SZEPY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 27 October 2004 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 16 September 2004 and handed down on 12 October 2004. The Tribunal affirmed a decision of a delegate made on 2 March 2004 which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) repealed s.483A and restructured the Court’s jurisdiction in relation to migration decisions. However, the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the Amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether she qualifies for a refugee visa.
At the hearing before me, the applicant was represented by Mr Zipser of counsel on a direct client basis. Mr Zipser presented written and oral submissions which abandoned most of the grounds set out in the applicant’s amended application filed on 7 March 2005, and unclearly addressed the remainder. In the course of the hearing, his submissions were further refined. Although counsel for the Minister was, in my opinion, able to meet the arguments which were raised, I directed that the applicant should file an amended application properly formulating the grounds which were argued. I also gave leave for her counsel to file a supplementary written submission, and for the Minister’s counsel to do likewise. Mr Zipser took that opportunity, by filing a supplementary submission on 3 November 2005. Counsel for the Minister filed no further submission. For reasons which are unclear, the applicant has not yet filed the amended application which I directed, and I shall make an order to allow this to happen if the matter goes further.
I propose to uphold the first ground argued by Mr Zipser. This essentially argued that error appeared in brief reasoning given by the Tribunal, and it is unnecessary for me fully to recount the evidence before the Tribunal and the procedures it followed.
In short, the applicant is an elderly Sri Lankan national, of Tamil ethnicity who lived in one village in the Batticaloa district all her life. She has been a widow since 1973, and has endured severe hardship in the course of insurgency activities of the LTTE and counter‑insurgency operations of the Security Forces. Her only son was threatened by the LTTE and received demands that he join their movement. As a result, he left Sri Lanka to study overseas, and has migrated to Australia. After he left, she became the subject of extortion. She said:
6.My only son underwent so many problems from various elements in Sri Lanka. The LTTE extorted money and they demanded to join in their movement. Because of these problems he migrated to Australia. Time to time Tamil tigers approached me and forced me to assist them financially as my son has been living in abroad. I gave them gold Sovereign and money. Thereafter the Tigers frequently came to my house and threatened me to give them more money, as they assumed my son is earning more money in Australia.
The applicant explained her immediate reason for seeking protection in Australia:
13.In May 2003 the LTTE send me a letter to invite me to their camp. When I visit there they demanded 300,000 rupees. I paid 50,000 and I was forced to promise to pay the rest within a month time. I could not collect the balance money within that period. Many people in the area were detained by the LTTE for failing to pay their demand and subsequently underwent interrogation and persecution. I deeply scared and came to Australia to escape from there problems.
14.I cannot relocate to any other places because I do not know Singhalese language and no other relatives in any other part of the country. I was very anxious and in constant fear of my life.
The Tribunal’s summary of the applicant’s evidence at the hearing relating to the LTTE’s extortion, included:
The Tribunal asked the Applicant what she thought would happen to her if she returned to Sri Lanka now. The Applicant replied that she’ll have problems from the LTTE and that the LTTE as well as TELO, EPDP and EPRLF had asked her for money; they would all want money again if she returned to Sri Lanka. She could only raise and pay the LTTE 50,000 of the 300,000 they demanded in May 2003 and they didn’t believe she couldn’t get the rest even though she explained that her son was only a student here; she was forced to sign a paper promising to pay the rest in a month but she couldn’t do so and left Sri Lanka. Therefore if she returns the LTTE will kill her because she didn’t pay in full.
In exploring her claims about her fears and past experiences at some length the Applicant said that the LTTE demanded money and gold once before and she paid them; this was some time ago when her son was in the UK. She also claimed that she had always refused to join the LTTE when they asked, and in recent years she refused to join the VK; VK groups were all over her district and consisted of elderly people who helped mediate disputes, provide garlands when LTTE persons were killed, and informed the LTTE if other groups came. As she had said that the LTTE now had their own offices or camps in the village and elsewhere in her district the Tribunal asked why they needed VK; the Applicant replied that the VK tries to solve disputes but the LTTE steps in if VK is unsuccessful. Asked if she has ever been harmed by the LTTE the Applicant claimed that once, at the time of the landmine, everyone, including her, was beaten.
…
Returning to the LTTE the Applicant said that when she paid 50,000 of the 300,000 demanded, she was detained in a room for a day and made to sign a paper promising to pay the rest in a month. They asked her lots of questions and said that as she had not helped the LTTE as had another person they named, she had to pay the rest of the money. The Tribunal observed that the LTTE must have known that she was elderly, lived alone and had no money; she replied that they were angry with her and asked her to join the VK. The LTTE asked her son to join a long time ago but now he was earning money in Australia so she had to pay them the sum demanded; her son sent 25,000 and she raised the other 25,000 by selling things and although the LTTE would know of her difficult personal circumstances, all that matters from their perspective is that someone is earning money in Australia. She told them that he was a student but they wouldn’t listen. Before the month was up and the rest became due, she left the country.
…
The Applicant confirmed that her only fear, if she returns, is of being killed by the LTTE for non‑payment. The LTTE asked her daughter where she was and said that if she returns and doesn’t pay, she’ll be put in a bunker and killed/left to die. Asked if she fears harm from the LTTE for any other reason the Applicant said this is what the LTTE does, villagers and everyone has to give them money; for example her daughters pay by having money deducted from salaries. If she returns she can’t avoid the LTTE and she’ll be tortured and killed because the money wasn’t paid as is the practice in the village.
The Tribunal put to the Applicant that under the ceasefire agreement, harassment and killing are not allowed; the Applicant replied that there is no permanent peace and she’ll be killed if the money is not paid. The Tribunal noted that ceasefire violations are investigated by the Sri Lankan Monitoring Mission (SLMM) Batticaloa; the Applicant replied that she’ll be arrested by the LTTE as soon as she gets back and then she can’t inform anyone of the violation. The Tribunal reminded the Applicant that her village is in an area that’s always been under Government control but she replied that now the situation is such that the LTTE can put a camp/office there too. There is a police station in the village and she’s not afraid of police but she wouldn’t report the extortion because she’s afraid of the LTTE; everyone, including all those Tamils who help the LTTE, is scared of them and no‑one informs against them.
The Tribunal’s reasoning for affirming the delegate’s decision was brief. It said:
The Tribunal accepts the Applicant’s oral account of her experiences in her village in Batticaloa District, however, even so, the Tribunal cannot be satisfied that the Applicant has a well‑founded fear of persecution within the meaning of the Convention if she returns to Sri Lanka. This is because the Tribunal is not satisfied that the Applicant has been or will be targeted for extortion, or punished for not paying extortion, by the LTTE, for a Convention reason.
The Tribunal’s reasons for this conclusion are given in two paragraphs:
The Tribunal accepts that the Applicant paid gold and money to the LTTE once when her son was in the UK, some years ago now. The Tribunal also accepts that the LTTE again demanded money from her in May 2003, that the Applicant gave the LTTE the 50,000 she could raise and that she was forced to promise to pay the balance in a month. For the present purpose the Tribunal accepts that the Applicant fears being harmed by the LTTE if she doesn’t pay the balance. However from the Applicant’s evidence it is clear that the essential and significant reason for the LTTE’s extortion of money from her on these two occasions, and not at other times, is because the LTTE knew that her son was overseas and assumed he was earning good money, and therefore the Applicant was a suitable target at the time, rather than because of her Tamil race, her actual or imputed political opinion, her membership of a particular social group, or any other Convention reason. The letter from the MP also suggests that she was targeted because her son is in Australia (and by implication, earning good money). The Applicant’s evidence is that the LTTE threatened to harm her if she doesn’t pay in full because they want to get the money from her or punish her if she doesn’t pay, rather than harming or threatening to harm her for a Convention reason. Other aspects of the Applicant’s evidence support the Tribunal’s conclusions, for example she said that some people in the village are VK members and she has good friends who are LTTE leaders or members yet she also said that everyone has to pay, and for example, her daughters pay through salary deduction. This suggests to the Tribunal that the LTTE (a Tamil organisation) is not targeting the Applicant because she is Tamil or because of her actual or imputed political opinion, as they also extort money from those who assist them in other ways as well as those who belong to or support anti‑LTTE Tamil groups such as TELO, EPDP, EPRLF. Information submitted by the adviser indicates that the LTTE extorts money from Muslims as well as Tamils in the North and East, where these ethnic groups dominate.
The Applicant also claimed generally that the LTTE was angry with her and caused difficulties for her because she never allowed her son to join the LTTE and because in recent years she repeatedly refused to join VK. Although the Tribunal can find no independent country information to confirm the existence of an LTTE related group known as Villipu Kulu (or Villippu Kullu as spelt by the interpreter in the hearing), the Tribunal accepts as plausible that such groups exist in LTTE areas of influence and that the Applicant was asked to join a number of times over the years, and that in years past she did not allow her son to join the LTTE. However, the Applicant has not been harmed or persecuted by the LTTE as a result of her refusals, and the only problem the Applicant had from the LTTE was being asked for money twice, both times when her son was abroad and thought to be earning money.
On my understanding of his submissions, Mr Zipser essentially argued that two jurisdictional errors are revealed in the above reasoning:
i)The Tribunal failed to address whether the extortion to which the applicant was subjected by the LTTE was by reason of her membership of a particular social group, being or including Tamils with adult sons working overseas, so as to make an error of the kind discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”); and
ii)The Tribunal’s exclusion of the applicant’s Tamil ethnicity as a racial reason for her extortion was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” within Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38].
In my opinion, underlying both of these contentions was an argument that the Tribunal failed to appreciate that extortion may have, and in the context of an insurgency struggle is likely to have, immediate characteristics of individual targeting, but also underlying motivations for extortion and reasons for selection which allow a Convention reason to be identified. The nature of extortion and the “possible duality” in a refugee claim to fear extortion, was described by Finn and Dowsett JJ in Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73 (“Rajaratnam”):
[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 and Multicultural Affairs v Sarrazola (1999) 95 FCR 517; 57 ALD 8; 166 ALR 641 at 645–6. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self‑interested reason (ie 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 recognised, 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 convention reason, or may have become the subject of extortion because of the known 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 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 both of 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.
The same point was made by Moore J in Rajaratnam, although his Honour was in dissent in relation to the particular matter:
[10]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 of 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 and Multicultural Affairs (1999) 84 FCR 274; 55 ALD 431 particularly in [15] and [16].

In my opinion, the present Tribunal has fallen into the same error as was found by Finn and Dowsett JJ in Rajaratnam at [50]: it “misconceived how [its inquiry into the reasons for the LTTE extortion of the applicant] was to be undertaken”. This misconception resulted in jurisdictional error described by the Full Court in NABE at [63]:
It is plain enough, in the light of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
The “simple dichotomy” misconception by the Tribunal of the present applicant’s extortion claims appears clearly when it identified an individual reason for the applicant being chosen for an extortion demand, and then thought that this excluded any Convention reason. It found that the extortion was “because the LTTE knew that her son was overseas and assumed he was earning good money, and therefore the Applicant was a suitable target at the time, rather than because of her Tamil race, her actual or imputed political opinion, her membership of a particular social group, or any other Convention reason”.
However, in my opinion, this dismissal of all Convention reasons for the extortion misunderstood, and failed fully to deal with, the applicant’s claim to have been targeted as a vulnerable Tamil with a son overseas. The Tribunal’s finding did not “exhaust the causation inquiry” which was required on the material before it (c.f. Rajaratnam (supra) at [50]). Rather, the Tribunal’s finding as to the reason for the applicant being targeted, required the Tribunal to look beyond her individual selection for extortion, and to consider whether the applicant was chosen by reason of characteristics shared with other victims. Plainly, the applicant was claiming to be the victim of general extortionate activities by the LTTE, and in this context it was necessary for the Tribunal to consider whether the personal reason it found for her targeting was a characteristic she shared with a particular group of Tamils.
In particular, the applicant’s claims were that she was particularly vulnerable for extortion demands, and had been selected for extortion, as a Tamil with a son who had escaped from the LTTE and was overseas. The material suggested that this characteristic may have been shared with other local victims of extortion, who might therefore constitute a particular social group for the purposes of the Convention definition. The Tribunal misunderstood this significant aspect of the claim, and did not address it. In my opinion, it therefore failed to exercise its jurisdiction to review the applicant’s claims to qualify under the Convention definition.
If the Tribunal had properly appreciated the “duality” of the applicant’s extortion claim, the Tribunal would have shown this in further discussion of the implications of its finding as to the immediate reason for the applicant’s selection for extortion. Due to its erroneous opinion that its simple finding excluded a Convention reason, the Tribunal failed to address critical issues where a claim might have a basis in membership of a particular social group. As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [31]:
In a case like the present, defining the particular social group and the type of harm feared is fundamental in determining whether a member of that group has a well‑founded fear of persecution. Only by defining the group and its characteristics or attributes, actual or imputed, can a tribunal of fact determine whether the harm feared is well‑founded and is causally related to the particular social group.
Mr Kennett, for the Minister, made submissions in response to this argument which were somewhat equivocal. On one hand, he argued that the claims and material presented by the applicant did not raise any “particular social group” reason for her persecution which required the Tribunal’s attention. On that argument, the Tribunal’s reference to this Convention reason was only a “throw away” comment. However, if I read the Tribunal’s reasons in that manner, then its jurisdictional error is clear once I decide that there was sufficient potential for this claim to be addressed in the material before the Tribunal.
In the alternative, Mr Kennett submitted that the Tribunal did identify the argued “particular social group” reason, and that the terseness of its rejection did not reveal any jurisdictional error. However, for reasons which I have given above, I consider that I can, and should infer, from the brevity of the Tribunal’s reference to this Convention “reason”, that the Tribunal at least fell into a Rajaratnam error by making a too simplistic analysis of the claim before it, and failing to consider the underlying reasons for the applicant being selected for the LTTE extortion demand.
Moreover, it is no answer that the applicant’s own narrative of her difficulties with the LTTE might have poorly assisted the Tribunal to make essential findings as to the existence and definition of a group to which the applicant belonged. If the Tribunal had appreciated the “potential” for a “particular social group” claim based on its findings, it is quite possible that its questioning of the applicant and its investigation of country information might have given the claim more substance. As McHugh J said in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 (“Applicant S”) at [77]:
By failing to consider whether young, able‑bodied Afghan men constituted “a particular social group”, the Tribunal prevented itself from obtaining evidence concerning that issue, evidence that might have determined the application in favour of the appellant. In the circumstances of this case, therefore, the failure of the appellant to put evidence before the Tribunal concerning the perception issue was not a ground for refusing to set aside the Tribunal’s decision, once it is accepted that the Tribunal erred in not considering the issue of “a particular social group”.
I accept the submission of Mr Zipser that, as in Applicant S, “the facts presented the potential for such a case”, and that this was not addressed by the Tribunal according to law (c.f. 217 CLR 387 at [13] and [50], approving the reasoning of Carr J in Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411 at [23]‑[26], [42]‑[48]). The particular matters sufficiently raising the need for a full consideration of this Convention reason, included:
a)The applicant’s written and oral claims identified a simple characteristic which resulted in her being selected as a victim for an overwhelmingly large extortion demand. This was one which inherently suggested a general motive and modus operandi on the part of the LTTE which was being applied to a group of people sharing particular characteristics. Her written statement, quoted above at [6], identified the reason for the extortion: “as my son has been living abroad”. In her oral evidence, she said the LTTE gave the reason: “because your son is earning abroad, you have to give us money”.
b)A letter from the local MP, which was accepted by the Tribunal, identified the risk faced by the applicant in terms which suggested that a short reference to a characteristic was sufficient: “She was being threatened by unidentified armed persons demanding money as her son is in Australia”.
c)The applicant’s advisor presented country information which “clearly indicate the extortion threats in Batticaloa”. This referred to a situation, after a cease fire in 2002, “where civilians have complained for months about increased LTTE harassment, including recruitment of child soldiers, abductions for ransom and extortion”. Another report referred to the LTTE obtaining funds by extortion locally, and “the Sri Lankan Tamil refugees abroad have been tired of the extortion racket by the LTTE”.
d)The advisor’s written submission to the Tribunal claimed that “the applicant was extorted money continuously for Convention reasons”, but was unfocused as to any reason which was particularly relied upon. It was then the duty of the Tribunal to undertake its own analysis of the material.
e)Ultimately, it was the Tribunal’s own finding that the simple characteristic of having a son overseas made the applicant “a suitable target” for the LTTE extortion demand which, in my opinion, should have caused it to ask whether this characteristic was shared with a other victims of extortion, and whether it was a characteristic of a particular social group of vulnerable people in the area of Sri Lanka where the applicant lived.
For the above reasons, I consider that the Tribunal misconceived the nature of the claims made by the applicant, in so far as they had a potential to be considered as raising a claim of persecution “by reason of membership of a particular social group”. The Tribunal may also have erred in relation to its assessment of the applicant’s ethnicity as a reason for her targeting for extortion by the LTTE. However, I do not need to consider Mr Zipser’s contentions in relation to this.
As well as affirming the delegate’s decision on the ground that the applicant’s fears were not of persecution for a Convention reason, the Tribunal made a brief finding that “there is nothing before the Tribunal to suggest, had she sought assistance, that it would have been denied to her for a Convention reason” (my emphasis). However, this finding cannot provide a complete and independent reason for supporting the Tribunal’s decision since, as I understood Mr Kennett to have conceded, the finding did not address whether the applicant would be denied adequate state protection for any reason (c.f. Minister for Immigration & Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 at [21]‑[29]. This was a live issue, since, as the Tribunal records the applicant telling it in a passage I have extracted above at [8], the applicant thought that the police were not able to protect her against the LTTE when she was living in her village. The Tribunal’s finding did not address these fears.
For the above reasons, I consider that the Tribunal’s decision is affected by jurisdictional error, and the applicant is entitled to the relief claimed and costs.

I certify that the preceding 25 (twenty‑five) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 27 January 2006