Unal, Tamer v The Minister for Immigration and Multicultural Affairs

[1998] FCA 1407

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 33 of 1997

BETWEEN:

TAMER UNAL
First Applicant

ERGUL UNAL
Second Applicant

BENIL UNAL
Third Applicant

AND:

THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent

JUDGE:

RYAN J

DATE OF ORDER:

5 NOVEMBER 1998

WHERE MADE:

MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS:

1. That the application be dismissed.

1. That the applicants pay the respondent’s costs of the application (including any reserved costs), such costs to be taxed in default of agreement.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 33 of 1997

BETWEEN:

TAMER UNAL
First Applicant

ERGUL UNAL
Second Applicant

BENIL UNAL
Third Applicant

AND:

THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent

JUDGE:	RYAN J
DATE:	5 NOVEMBER 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 18 December 1996 affirming a decision of a delegate of the respondent not to grant a protection visa to any of the applicants.  The applicants, a husband, wife and child, are citizens of Turkey and entered Australia on 30 January 1996.  By application lodged 29 February 1996 the applicants applied for protection visas and on 28 May 1996 a delegate of the respondent refused those applications.  On 18 December 1996 the RRT affirmed the decision of the delegate.  It is that decision of the RRT which the applicants seek to review.

The Applicants’ Claims and Evidence

For ten years before leaving Turkey, the first applicant, who together with his wife and child are Alevis, conducted a successful business installing and servicing motor vehicle accessories.  In recent times the first applicant ( “the applicant husband”) had commenced installing  remote control devices on motor vehicles which enabled the operator to start the engine from a distance of between 25 and 30 metres.  These were effectively anti-bomb devices and were installed in the motor vehicles of a large number of prominent people and journalists.

After he introduced these devices, the applicant husband began to receive visits from what he claimed to be fundamentalist Muslims asking him to install similar devices in their own cars.  As well, they pressed him to provide them with the codes of devices installed in other cars so that they could decommission them and continue with their bombing campaign.  That, he stated, was the real reason why he had been visited by fundamentalist Muslims who asked him to provide the names of people to whom he had sold the devices.  When he refused these initial overtures, he said, he was told to think about it.  During a second visit, his furniture was kicked, he was verbally abused because of his Alevi religion and was again pressed to disclose the codes to enable his devices to be rendered ineffectual.  After this second visit, he claimed, he started to receive telephone calls and went to the local police station to complain but the police officers disregarded his complaints, saying that they (the police) “were there in case something happened”.

After a time, the telephone calls increased in frequency from once to twice a week and, according to the applicant husband, the burden became intolerable when he was called at home on a silent number.  As recorded by the RRT, the applicant husband stated that:

...he was told that he now did not have enough work and that the next step related to the safety of himself and his wife.  The Applicant husband explained that his business had started to fall off and that on occasions there was a fundamentalist Muslim who would stand outside of his premises and turn people away when they arrived.  He stated that this person was not there every day but was there on occasions.

The Applicant husband claimed that on the 20 December 1995 a fire bomb was thrown at his workplace and that it was lucky that he was there as he was able to put the fire out.  He stated he went to the local police station.  The fire did approximately 25 million Turkish lira damage to the premises and he stated that some tapes and other equipment were burnt.  He claimed that this action was done by a group that he called the IBDAC.  He claimed that this group later rang him and told him that this was a warning.

The applicant husband claimed that he had been generous to Alevi associations in Turkey and that, although he had been a very successful businessman in his native country, he had left everything to come to Australia.  He also asserted that he had left his mother at home and had been unable to return for her funeral as a result of his fear of reprisals.

The second applicant, the wife of the applicant husband, gave evidence of the situation of Alevis in Turkey and the discrimination which they suffered.  She stated that, after the applicants left Turkey, their house had been broken into and their furniture broken. It was her belief that she would be killed by the fundamentalists if she returned to Turkey.  She also claimed that, after her departure from Turkey, her parents had been visited and harassed and that this harassment continued until June 1996.  Her father, she said, had wished to complain to the public prosecutor but did not proceed with his complaint after being told that he would be interrogated about it.

After the hearing before the RRT, a further submission was made on behalf of the applicants which included a letter from the second applicant’s parents stating that they had received threatening telephone calls in February 1996 after the applicants had left Turkey and that, in August 1996, they had been forced to sell their house to avoid further harassment.

In the course of reviewing the evidence summarised above, the RRT observed in its reasons:

The Applicant husband was asked as to why he had not mentioned anything about a fire bomb being thrown in his initial application and he stated that he did not wish to tell the authorities about it as it would have led to him being interrogated.

The Applicant husband was asked why if such a serious incident occurred on the 20 December he delayed his departure until the end of January of the following year.  He stated that this was because he had to keep earning money and that there was a lot of money owed to him that he had to collect.  He stated that he did not know what the situation would be like in Australia and therefore he had to sort everything out before he left.

Under the general heading “REASONS” the RRT’s published decision included these observations:

The Tribunal does not accept that the Applicant husband’s shop was fire bombed in the manner that he claimed.  The Applicant husband in his initial statement that was made at the time of the launching of his refugee application made no mention of his workplace being fire bombed.  In contrast in the hearing he stated that this event had made him very scared.  In the Tribunal’s view had this event occurred he would not have failed to set it out in detail in his initial application.  The Applicant husband explained that his adviser at the time had told him that only a brief summary was required at this stage and that he would have the opportunity to elaborate at a later time.  However even if this were the case the Tribunal does not accept that the Applicant husband would have left out such a significant event.  Accordingly the Tribunal is satisfied that the Applicant husband has been prepared to exaggerate his claims.

The Tribunal is confirmed in this view by the delay in departing Turkey.  The Applicant husband’s visa was issued on 13 December 1995 before the alleged fire bombing. However he did not depart until 25 January 1996. This confirms the Tribunal’s view that the Applicant husband is exaggerating his claims and was under no threat at the time of departure.

The RRT then went on to set out the contents of two cables, presumably from the Department of Foreign Affairs and Trade, dated respectively 30 October 1996 and 24 October 1995, which outlined circumstances of Alevis living and working in Turkey.

The RRT then concluded:

On the basis of this information the Tribunal accepts that Alevis in Turkey face discrimination and harassment.  There have also been isolated incidents in the past where such discrimination has reached the level of persecution.  However the Tribunal does not accept that all Alevis are persecuted.  In any event the Tribunal is not prepared to accept that the Applicant husband has faced harassment in the way he described.  He has conducted a successful business in Turkey which continued up until the time he left the country.  He has travelled in and out of Turkey on a number of occasions in recent years in regards to his business.  In the Tribunal’s view whilst the Applicant husband may have faced some discrimination in the past he has not been the victim of fundamentalist Muslims as described.  In view of the fact that the Tribunal is satisfied that the Applicant husband has been prepared to exaggerate his claims the Tribunal does not accept that the Applicant husband has been targeted by fundamentalist Muslim groups as a result of his business.  In any event the Applicant husband was able to give the initials of the group but was not able to name it.  The Tribunal does not accept that he has been targeted in the systematic way claimed by fundamentalist Muslims at all.

Such targeting is alleged to be because of the Applicant husband’s activities in installing anti-bomb devices.  The Tribunal does not accept that this has anything to do with the Applicant husband’s religion.  The Tribunal also does not accept that such targeting would be on account of either a political opinion or imputed political opinion.  In the mind of the persecutors their aim is to decode the anti-bomb alarms.  The only Convention reason that such targeting could come under is that of a particular social group.  However there is no evidence before the Tribunal that fundamentalist Muslims target those involved in the security industry.  Accordingly the Tribunal does not accept that even if the Applicant husband has been targeted by a fundamentalist group that is for a Convention reason.

Of the supplementary submission invoking the letter from the second applicant’s parents, the RRT said:

...the Tribunal finds it implausible that they would only write in August 1996 of threatening phone calls that commenced to occur in February 1996.  Given that August 1996 was also well after the primary decision was made the Tribunal considers that this letter is self serving and does not advance the Applicants claims.  Further the Tribunal does not accept, as implied in the letter, that the Applicant wife’s parents received threatening phone calls which continued well after the Applicants left and forced them to sell their home in August 1996.  Whilst they may have sold their home it is implausible that they would have done so as a result of phone calls that related to the Applicant husband’s business.

After noting that no specific claims were made by or on behalf of the third applicant, the RRT went on to conclude that it was not satisfied that the applicants were persons to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Convention”) and the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Protocol”) and that, accordingly, the decision of the delegate of the respondent to refuse to grant protection visas to the applicants would be affirmed.

Grounds of Review

Ms Mortimer of Counsel for the applicants submitted that the RRT had made three errors of law.  The RRT was first said to have erred in the way in which it had approached the finding of facts with respect to the claims made by the applicants.  It was submitted that the RRT had made a finding adverse to the credibility of the applicants and had proceeded from that finding to dismiss other claims of the applicants without establishing in its reasons for decision any basis for doing so.  Accordingly, it was argued, the RRT had foreclosed any further speculation upon the material before it and, in doing so, had failed to ask itself, as instructed by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 “What if I am wrong?” That failure, it was contended by Counsel, amounted to a failure to act according to substantial justice and the merits of the case as required by s 420(2)(b) of the Migration Act 1958 (“the Act”).

Section 420 of the Act provides:

(1)     The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)     The Tribunal, in reviewing a decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case.

Although accepting that the RRT was not required to make findings with respect to all claims made by the applicants, Counsel for the applicants argued that the RRT had to furnish reasons from which the matters which had been taken into account could be inferred and from which its reasoning could be discerned.  Reference was made to the observations of Finkelstein J in Thambythurai v Minister for Immigration and Multicultural Affairs (unreported, 16 September 1997) where his Honour noted:

Another possible view of s 420(2)(b), and the one that I prefer, is that only one obligation is imposed which is an obligation to act in a manner Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366-367 referred to as “acting judicially”. The precise content of an obligation to act judicially is dependent upon the terms of the statute creating the tribunal. But, subject to the terms of the relevant statute, the ordinary incidents of a duty to act judicially include “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity to be heard (Bond at 367) in conformity with the traditional rules of procedural fairness. The most important incident is the requirement to act rationally and reasonably. As Deane J explained in Bond at 367:

“[A] duty to act judicially … excludes the right to decide arbitrarily, irrationally or unreasonably.  It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion.  Arguably, it requires a minimum degree of “proportionality”…(T)here will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact”.

By this approach, the duty to “act according to substantial justice and the merits of (a) case” is a duty to adopt and apply all those procedures that are necessary to ensure, so fas as may be possible, that a decision-maker is able to arrive at a decision that is both just and in accordance with the merits.

Counsel further submitted that a failure by the RRT to determine an application in accordance with substantial justice and the merits of the case had been held by Davies and Burchett JJ in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 to be an error of law, making the decision reviewable under s 476(1)(a) of the Act.

Section 476 of the Act, so far as is relevant, provides:

(1)     Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)that the decision was not authorised by this Act or the regulations;

(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)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;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision.

...

(4)     The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Secondly, Counsel for the applicants submitted that the RRT had erred in law in its interpretation of “political opinion” and “social group” as those terms are used within Article 1A(2) of the Convention as amended by the Protocol and had further erred in its application of those terms, correctly interpreted, to the facts of the case. A decision vitiated by such an error was said to be a reviewable decision pursuant to s 476(1)(e) of the Act.

Counsel for the applicants submitted, thirdly, that the RRT had erred in law in its construction of the concept of “well-founded fear” and in the application of that test to the circumstances surrounding the applicants’ supposed delay in departing Turkey. It was submitted that a decision infected by such an error was similarly reviewable under s 476(1)(e) of the Act.

The Convention

Section 36 of the Act is in the following terms:

(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 in s 5 of the Act as:

the Convention relating to the Status of Refugees done at Geneva on 28 July 1951;

Section 5 also defines “Refugees Protocol” as:

the Protocol relating to the Status of Refugees done at New York on 31 January 1967;

By Article 1A(2) of the Convention as amended by the Protocol, Australia has obligations of protection to an applicant who:

owing to 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 Convention, therefore, requires that, in order for Australia to have protection obligations to an applicant, the feared persecution of the applicant must be for reasons of “race, religion, nationality, membership of a particular social group or political opinion” (“a Convention reason”).  It has been held that it is not necessary for any actual or feared persecution of an applicant by reason of political opinion to be based upon the applicant’s actual political opinion.  Rather, it may be based upon political opinion imputed to the applicant by his or her actual or potential persecutors.  Thus, in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said at 575:

For the purposes of the Convention, a political opinion need not be an opinion that is actually held by the refugee.  It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor.  In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 416 Gaudron J said:

persecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief.

In the same case, McHugh J said that:

It is irrelevant that the appellant may not have held the opinions attributed to him.  What matters is that the authorities identified [Mr Chan] with those opinions and, in consequence, restricted his liberty for a long and indeterminate period.

In relation to persecution for alleged membership of a “particular social group”, Lockhart J observed in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417 at 432:

The word “particular” does not narrow the scope or meaning of the expression “particular social group”.  Rather it indicates that there must be an identifiable social group to which one can point and say that there is a particular social group.

The interpretation of the expression “particular social group” calls for no narrow definition, since it is an expression designed to accommodate a wide variety of groups of various descriptions in many countries of the world which, human behaviour being as it is, will necessarily change from time to time.  The expression is a flexible one intended to apply whenever persecution is found directed at a group or section of a society that is not necessarily persecuted for racial, religious, national or political reasons.  Social groups may have interests in common as diverse as education, morality and sexual preference.  Examples include the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies. [The Handbook on Procedures and Criteria for Determining Refugee Status (1979)] provides some assistance because it states that a social group “normally comprises persons of similar background, habits or social status”.  This emphasises the need for some common or binding element of persons to constitute them as a recognisable or cognisable group.  The social group referred to in the Convention and Protocol is intended to encompass groups of people who share common social characteristics and might be the target of persecution but who do not fit into classifications of race, religion or political opinion.

In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 Dawson J observed at 342:

The requirement that the feared persecution be by reason of “membership” of a particular social group was taken by Black CJ (with whom French J agreed) in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 404-5; 111 ALR 417 at 420 to require that the persecution be on account of “what a person is – a member of a particular social group – rather than upon what a person had done or does”. But as Black CJ himself recognised, that statement should not be taken too far. The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable, but not illuminating.  For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts – that the persons involved are parents – is quite central to what they are.

See also Zamora v Minister for Immigration and Multicultural Affairs (Madgwick J, unreported, 5 September 1997) where his Honour observed, at p 7:

Thus, the social characteristics which define some groups are what the members of the group do.  Where membership of a social group is defined by what its members do, then whether persecution on account of an activity of a member of the group can also be said to be persecution by reason of the membership of the group, is a matter of fact and degree.  It will depend on how closely the activity concerned is bound up with the key activities that define the membership of the group.  Here it would seem that the applicant’s activities which attracted the persecution of her could be said to be the core activities of her social group.

Did the RRT err in law in its interpretation of a Convention Reason?

Counsel for the applicants referred to that part of the reasons of the RRT where it was concluded:

The Tribunal does not accept that he has been targeted in the systematic way claimed by fundamentalist Muslims at all.

Such targeting is alleged to be because of the Applicant husband’s activities in installing anti-bomb devices.  The Tribunal does not accept that this has anything to do with the Applicant husband’s religion.  The Tribunal also does not accept that such targeting would be on account of either a political opinion or imputed political opinion.  The only Convention reason that such targeting could come under is that of a particular social group.  However there is no evidence before the Tribunal that fundamentalist Muslims target those involved in the security industry.

Counsel for the applicants made a general submission that the passage just quoted evinced an error of law in that the RRT had failed properly to analyse whether the applicants had suffered persecution for a Convention reason.  It was said to be not sufficient for the RRT merely to “pay lip service” to the need to examine whether an applicant had suffered persecution for reasons of political opinion or membership of a particular social group.  It was further said to be inferred from its reasons that the RRT had failed to regard persecution for reasons of political opinion as capable of being based upon political opinion imputed to an applicant by his or her persecutors as well as upon an actual political opinion; (see Minister for Immigration and Ethnic Affairs v Guo (supra) per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 575).

The alternative submission was then made that if the RRT had correctly construed “political opinion” as used in the Convention, it had failed to apply that understanding to the facts of the present case.  It was submitted by Counsel that it had been open for the RRT, upon the evidence before it, to conclude that the political opinion imputed to the applicant husband by his persecutors had been based not on the applicant husband’s identification with the views and opinions of his customers but rather on his opposition to Muslim fundamentalists as manifested by his refusal to supply them with code information to negate the efficacy of his bomb-warning devices.

In my view the passage to which Counsel pointed discloses that the RRT considered the question of imputed political opinion and concluded, upon the evidence before it, that any persecution offered to the applicant husband had been based, not upon imputed political opinion, but, rather, upon his reluctance or refusal to provide assistance to his alleged persecutors in incapacitating his own bomb-warning devices.  In other words, the RRT regarded the applicant husband as having been persecuted because of his determination, in good faith, to preserve the confidentiality of his customers and the codes for their bomb warning devices and not because of any political persuasion imputed to him by his persecutors.

It was then submitted that the same passage from the RRT’s reasons disclosed a separate error of law in the consideration of whether the applicant husband had been persecuted for membership of a particular social group within the meaning of the Convention.  The observations in Morato (supra) and Applicant A (supra) were invoked in support of the contention that, instead of identifying the relevant social group as “those involved in the security industry”, the RRT should have considered the defining qualities of the particular social group to which the applicant husband belonged as persons offering anti-bomb devices, or protection from bomb attacks.

Counsel for the respondent submitted, however, that the RRT was entitled to make a finding that, upon the evidence before it, any alleged persecution suffered by the applicants had not been by reason of the applicant husband’s membership of a particular social group.  Counsel referred to this passage from the evidence given by the applicant husband before the RRT where he commented:

After I complained to the police station they still said that they will look after us, but deep down I didn’t have any faith in the police force anyway, I knew that they were not going to do anything because this is the way it’s done in Turkey unfortunately, and later on I have realised that also my workload was going down, because the things that I have done, like putting stereos and music devices to the beautiful cars, I was also answering the needs of the young and modern Turkish people. Now those people were totally against that. I don’t know how come and what they were doing outside to sort of making my workload going lower and lower. I have noticed that.

Similarly, Counsel for the respondent pointed to this response of the applicant husband when he was asked, with reference to the alleged telephone calls: “Did they say they were from the group that telephoned you?

A.Yes, they have told me on the phone, plus to the other Alevi Association they always ring and notify them…(indistinct)

Counsel then referred to a further question put to the applicant husband: “Why would [the Muslim fundamentalists] ring there?” to which he replied:

A.They ring there not because of me, sir, they ring there because it’s an Alevi Culture Association and they said that, don’t have some...(indistinct)...there is a way of their praying and its called Jani, don’t have that, don’t gather together, don’t have any social activities, that sort of thing.

In the same context reference was made to this passage from the written evidence where the applicant husband stated:

Because of the fact that I was Alevi and I was actively involved in associations, for example, money donations, helping families who lost their family members and things like this, fundamentalist religious groups started targeting well-off businessmen like me.

Let me tell you about why I was especially targeted because of my business. I was supplying everybody who came to me with security systems irrespective of their religion, language, race…  Of course there are other companies that offer the same service in Turkey but I was the only that served to such a large clientele…

Such incidents were upsetting people and those successful Alevi people like me were being targeted.

Those passages from the evidence were relied on as supporting the respondent’s contention that there was evidence before the RRT from which it could infer that any persecution which may have been suffered by the applicant husband had not been by reason of his membership of a particular social group.  The applicant husband’s evidence, it was submitted, asserted various reasons for his alleged persecution and the RRT was entitled to find that the only social group conceivably relevant to the applicant husband’s circumstances was one based upon his work in the security industry.  Counsel further submitted that the RRT was entitled, on the evidence before it, including the evidence of the applicant husband, to conclude that persons engaged in the security industry had not been targeted for persecution by Muslim fundamentalists.

Whether the social group be characterised as “those involved in the security industry” or, as the applicant husband contended, “people offering anti-bomb devices, or protection from bomb attacks”, the RRT was entitled, on the evidence before it, to infer that the applicant husband had not been persecuted “for reasons of membership of the group”.  From the evidence of the applicant husband that “Of course there are other companies that offer the same service in Turkey but I was the only that served to such a large clientele” the RRT concluded that the basis of his persecution, if any, had been his refusal to provide the Muslim fundamentalists with the information they required.  That refusal could be characterised, as it apparently was by the RRT, as referable to concerns of a private or business kind and not as referable to membership of a particular social group.  As McHugh J explained in Applicant A v Minister for Immigration and Ethnic Affairs (supra):

The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return.  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the state either encourages or is or appears to be powerless to prevent that private persecution.

Moreover, I am not persuaded that the RRT has erred in law by failing to set out the legal basis of its decision. If the Court, on review, can discern from the reasons that the right legal principles have been identified and correctly applied to the facts as found, then, in my view, no reviewable error of law arises under s 476(1)(e) of the Act. It is not the function of the Court on review to subject the reasons of the RRT to a minute dissection in order to distil some inconsistency or infelicity of expression from conclusions which are perfectly intelligible when read as a whole.

As the High Court succinctly observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) (per Brennan CJ, Toohey, McHugh and Gummow JJ) at 272:

These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

And per Kirby J at 291:

The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

(See also Minister v Guo (supra) per Kirby J at 594; and the observations of Lockhart J in Politis v Federal Commissioner of Taxation [1988] ATC 5,029 at 5,032.)

I am therefore unable to impute to the RRT any error of law inherent in its conclusion that any persecution allegedly suffered by the applicants was not for a Convention reason.  It follows that it is unnecessary to consider whether or not the RRT erred in its approach to the question of whether the applicants actually suffered or feared persecution for the reasons which they asserted.  A finding of fact in favour of the applicants on that question would not entitle them to protection obligations owed by Australia pursuant to Article 1A(2) of the Convention.  Accordingly, the error of law which Counsel for the applicants contended was inherent in the RRT’s failure to revisit its findings of fact and ask “What if I am wrong?” as stipulated in Wu, if it occurred could not have availed the applicants.  The application must accordingly be dismissed with costs.

I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             5 November 1998

Counsel for the Applicants:	Ms D Mortimer
Solicitors for the Applicants:	Erskine Rodan & Associates
Counsel for the Respondent:	Mr W Mosley
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 February 1998
Date of Judgment:	5 November 1998