FEDERAL COURT OF AUSTRALIA

Jayawardene v Minister for Immigration & Multicultural Affairs

[1999] FCA 1577

MIGRATION – Refugees – Protection Visa - Review of a decision of the Refugee Review Tribunal - well-founded fear of persecution based on membership of social group – social group defined as “single women or single women without protection in Sri Lanka” – fear of domestic violence – relevance of extortion claims – relevance of consideration of welfare of applicant’s child.

Migration Act 1958 (Cth):  ss 476(1)(a), 476(1)(e), 420(2)(b)

Morato v Minister for Immigration and Ethnic Affairs (1992) 39 CLR 401 cited

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

Minister for Immigration and Multicultural Affairs v Zamora (1998) 51 ALD 1 cited

Minister for Immigration and Multicultural Affairs v Teoh (1995) 183 CLR 273 distinguished

Sikahele v Minister for Immigration and Multicultural Affairs (Lindgren J, 10 November 1998, unreported) cited

Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477 followed

Tafokitau v Minister for Immigration and Multicultural Affairs [1999] FCA 1478 followed

DONA ANNE DEEPANI JAYAWARDENE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 690 of 1998

GOLDBERG J

12 NOVEMBER 1999

MELBOURNE

THE COURT ORDERS THAT:

1.         The application to review the decision of the Refugee Review Tribunal made on 16 November 1998 is dismissed.

2.         The applicant pay the respondent’s costs including reserved costs.

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

REASONS FOR JUDGMENT

Introduction

1                     The applicant has filed an application pursuant to s 476 of the Migration Act 1958 (Cth) for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 16 November 1998 whereby it affirmed the decision of the delegate of the respondent (“the Minister”).  On 21 July 1997 the delegate found that the applicant was not a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 as amended by the 1967 Protocol Relating to the Status of Refugees (collectively “the Convention”) and therefore was not entitled to the grant of a protection visa.

2                     Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention.  Article 1A(2) of the Convention provides that a refugee is any person who:

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

Background

3                     The applicant is a national of Sri Lanka who arrived in Australia on 19 October 1996 holding a visitor’s visa issued in Colombo on 13 October 1995.  The applicant lodged an application for a protection visa on 15 November 1996 which was refused on 21 July 1997.  The applicant applied to review that decision and the Tribunal held a hearing on 12 November 1998.

4                     The applicant is a Catholic Sinhala born on 23 September 1960 in Colombo.  She was educated and worked in Colombo and in 1982 she began work with a Tamil firm but after the communal violence of 1983 she was warned “not to patronise the Tamils” under threat of violence.  The applicant changed jobs and after her marriage in 1985 went to Iraq with her husband who was violent to her.  She returned to Sri Lanka, underwent surgery for a bone disorder which affected her legs and in 1988 she commenced work at the Asia Foundation.  Although the applicant and her husband were separated, her husband continued to harass her.  She left the Asia Foundation for alternative employment in 1989 but in May 1991 was re‑employed by the Asia Foundation.  A fellow employee at the Asia Foundation made life difficult for the applicant.  The applicant formed a special relationship with a Special Forces officer who was able to provide her with protection but he was killed in action in June 1992.

5                     The applicant had rented a house she owned to a Tamil family distantly related to the fellow employee who was making life difficult for the applicant.  In 1994 the applicant received complaints of people visiting the house she had rented at night and she warned the tenants not to entertain outsiders on the premises.  The tenants stopped paying rent and were three months in arrears by September 1994 when the applicant gave them notice to leave the premises.  The tenants said they could not leave because they did not have the money for the bond on a new lease. 

6                     In her initial submissions, the applicant said that in early 1995 she received threats from a patriotic Sinhala organisation accusing her of renting houses to the Tamil Tigers.  These threats frightened her so she borrowed money to lend to the tenants to enable them to move to another house.  Before they could move the applicant was threatened and told that the house would be burned down unless the Tamils left.  She arranged for some contacts in the army to go to the house and tell the tenants to leave, which they did.  At the hearing the applicant said that she discovered in late 1995 that the tenants were associated with the Tamil Tigers and she wanted them to leave for that reason.  After the tenants left the applicant received threats accusing her of informing on Tamils to the army.

7                     The applicant obtained an Australian visitor’s visa at the end of 1995 with a view to holidaying in Australia.  Because the fellow employee was still making life difficult for her, she resigned from the Asia Foundation but withdrew her resignation when she realised she had told the Australian High Commission that she had been granted leave to go to Australia and that her resignation might affect her visa.  The applicant changed her mind and planned to take a holiday in Sri Lanka.  In November 1995 she was run off the road by another vehicle and she began receiving threatening phone calls from Tamils.

The Tribunal’s reasoning

8                     In its reasons the Tribunal said:

“At the hearing, she said that her problems with a violent husband were not significant in her need for protection in Australia and that her fears were focussed on her fear of the LTTE.”

This proposition was challenged by the applicant at the hearing before me.

9                     The Tribunal also noted:

“The applicant fears that she will be attacked by the LTTE if she returns to Sri Lanka because she has been accused of betraying its cause.  Her mother stated that she had read all of the materials submitted by the applicant and that all of it was true.  She shared the applicant’s view that it was unsafe for the applicant to return until the LTTE is wiped out.  The applicant told the Tribunal that she had no fear of being harmed by Sri Lankan authorities, despite an earlier submission that she was suspected of links with the LTTE.”

10                  In its reasons the Tribunal set out the relevant legislative framework and referred to the authorities which give guidance as to what is involved in determining whether an applicant for refugee status has a “well‑founded fear of being persecuted”:  Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.

11                  The Tribunal then made a number of findings of fact observing that the applicant had made some inconsistent statements but that in assessing the applicant’s credibility it should examine the applicant’s claims as a whole. 

12                  The Tribunal found that the applicant did not have a well‑founded fear of persecution because she was thought to be a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) or the JVP.  Those findings were not challenged by the applicant. 

13                  The applicant did challenge the Tribunal’s findings that she did not have a genuine fear that she would be the victim of domestic violence if she returned to Sri Lanka and that any fears she may have had of being harmed by her husband were not well founded.  Those findings were made after the Tribunal analysed the evidence in relation to the applicant’s domestic situation.  The Tribunal accepted that the applicant was a victim of domestic violence and was in fear of her former husband and then continued:

“She indicated to the Tribunal that her concerns over mistreatment from her husband were no longer of real significance and the Tribunal concludes that she does not have a genuine fear that she will be a victim of domestic violence if she returns to Sri Lanka.  Her earlier submissions indicated that she had already divorced, but that it was unclear at the hearing, whether or not the divorce is finalised.  In any event, it was apparent from the evidence of the Applicant and her mother that her husband no longer shares their house, that a property settlement has been reached and the divorce, if not yet finalised, is close to that stage.  In all of the circumstances, the Tribunal finds that any fears the applicant has of being harmed by her husband on account of their marriage are not well‑founded.”

14                  Although the Tribunal accepted that the applicant had Tamil tenants in her house, it noted that her claim in relation to those tenants had also changed.  The Tribunal did not accept that the applicant was forced to allow the tenants to rent the house under pressure from her husband.  The Tribunal concluded that the tenants were in arrears in rent and that she evicted them for that reason and not for any reason associated in any way with the LTTE.  There was evidence before the Tribunal that threats had been made to the applicant in relation to the tenants, but the Tribunal was satisfied that these threats were motivated by friendship and revenge on the part of friends of the tenants and were unrelated to any Convention reason. 

15                  The Tribunal could also find no Convention reason in the harassment of the applicant at her work or what were said to be attempts at extorting money from the applicant.  In relation to the issue of extortion the Tribunal said:

“There is some evidence that the Applicant’s parents paid some demands for money, but that has not been the Applicant’s experience.  Now that the shop is closed and her business with her husband is being finalised with her divorce, there is not a real chance that she will be confronted by extortionists if she returns to Sri Lanka.  Even if she was, the demands she has mentioned have amounted to 5000rp or so, a relatively minor sum in view of the amounts she has referred to in her bank account and in making a settlement with her husband.  Such payment would not be of such a degree of serious harm as to amount to persecution for the purposes of the Convention.

Furthermore, there is no Convention reason which appears to motivate extortionists.  Information available to the Tribunal demonstrates that all sorts of people are the victims of extortionists, including Tamils … Muslims and displaced people … Those people may or may not be wealthy.  The perpetrators are Tamil terrorists, police, the Armed Forces and other groups that might have an advantage in strength at a given time.  Their demands for money appear to be motivated by the criminal desire to illicitly obtain money from a disparate array of people whose only shared characteristic is that they are perceived to [be] vulnerable enough to be able to pay.”

The applicant’s case

16                  In her initial application for a protection visa the applicant claimed that she had been persecuted:

“as a consequence of both her imputed political profile and her gender/membership of a particular social group”.

The particular social group relied upon by the applicant was that of “a persecuted female without protection in the workplace or in the community”.  The imputed political profile referred to appeared to be that she was seen by the LTTE as a pro‑government or military informant and an opponent of the Tamil cause whereas at the same time the Sri Lankan authorities and the applicant’s Singhalese associates suspected her of being supporter of the Tamil movement.

17                  In her initial application the applicant referred to a number of instances of armed extortion where money was demanded from the applicant and her family.

18                  When the applicant sought a review of the Minister’s decision to refuse her a protection visa she filed submissions with the Tribunal in support of that application.  In relation to the Convention grounds relied upon the submissions set out:

“Social Group

Although Ms Jayawardene does not revoke her claim to be in fear of persecutory harm on account of her gender – in particular being a separated woman in Sri Lanka who has physical disabilities both genetic and as a consequence of violence sustained and traumas inflicted upon her in a most unhappy and sometimes brutal marriage to her estranged husband, she does not centre her refugee claims upon this Convention ground.

       The earlier submission in this respect adequately covers those aspects of her claim. [This earlier submission is found in particular on page 7 of her application for a protection visa dated 14 November 1996].

Political Opinion (imputed)

…

The applicant cannot expect to enjoy or find security or protection from the State forces in whose eyes she will be at risk as a consequence of her fraternising with LTTE terrorists and enemies of the State.

       Colombo is rife with Tamil groupings and underground activists opposed to each other and in some cases opposed to or competitive with the army.  Intelligence is sophisticated and pervasive and the animosities of Tiger versus anti‑Tiger Tamil groups is a second if mainly sub‑terranean theme in the civil war affecting that country.  If the Tigers learn of the applicant’s return she will not be permitted to remain neutral and the anti‑Tiger Tamil groups will create pressures upon her which would cause her further serious harassment, disruption and potentially most serious violence amounting to persecution.  She believes her very life is at risk.”

19                  In her application for review of the Tribunal’s decision the applicant relied upon three grounds:

(a)        the decision involved an error of law within s 476(1)(e) of the Act, in that the Tribunal incorrectly interpreted and applied the test of “well‑founded fear” of persecution;

(b)        the decision involved an error of law within s 476(1)(e) and s 420(2)(b) of the Act, in that the Tribunal incorrectly interpreted and applied the applicable law because of its adverse findings as to the applicant’s credit on the basis that she had made some inconsistent statements and had added to her claims in successive submissions;

(c)        procedures required to be observed in connection with the making of the decisions were not observed in that the Tribunal did not act according to the substantial justice and merits of the case within s 476(1)(a) and s 420(2)(b) of the Act.

The second and third grounds were abandoned at the hearing in the light of the decisions in Abebe v Commonwealth of Australia (1999) 162 ALR 1 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

20                  At the hearing I granted the applicant leave to amend her application to add the following grounds:

“4.       There was no evidence or other material to justify the making of the decision.

Particulars

The RRT based the decision on the existence of the fact that the applicant ‘indicated to the Tribunal that her concerns over mistreatment from her husband were no longer of real significance’ and that fact did not exist.

5.         Procedures that were required to be observed by the Act in connection with the making of the decision were not observed. 

Particulars

(a)        The Tribunal failed in breach of s.430 of the Act to set out its findings on material questions of fact or to refer to the evidence upon which those findings were based in relation to:

(i)         extortion not being for a convention related ground for the applicant;

(ii)        the threats of harm made by those who practised extortion upon the applicant’s family;

(iii)       the applicant’s fear of persecution at the hands of her husband as persecution by reason of her membership of a particular social group such as single women or single women without protection in Sri Lanka.

(b)        The Tribunal failed to afford the applicant an opportunity to comment if the Tribunal was to ignore rights of the applicant or her child under Australia’s Treaty Obligations.

This final particular was also added as a particular to the ground that the Tribunal incorrectly interpreted and applied the applicable law.

21                  The submissions made by the applicant were not based upon a well‑founded fear of persecution for reasons of  political opinion other than with reference to her extortion claim.  It was not suggested that the Tribunal had erred in finding that the applicant had no well‑founded fears of persecution for the reason that she either was or may be imputed to be a supporter of the LTTE.  Nor was it suggested that she had a well‑founded fear of persecution by the LTTE other than by reference to her extortion claim to which I shall return.

22                  The attack on the Tribunal’s decision was centred around the submissions that the Tribunal:

(a)        had failed to deal with the essential questions of the applicant’s membership of a particular social group and her fear of her husband;

(b)        had not considered her claim that she suffered extortion which was backed up by threats to personal safety;

(c)        had failed to give her notice if it was not going to take into account the welfare of her child.

Fear of husband and membership of a social group

23                  The submission that the Tribunal erred in that there was no evidence or other material to justify its conclusion that her concerns over mistreatment from her husband were no longer of real significance should be considered in the light of the evidence before the Tribunal.  Although the Tribunal said that:

“At the hearing, she said that her problems with a violent husband were not significant in her need for protection in Australia and that her fears were focused on her fear of the LTTE”

and that:

“She indicated to the Tribunal that her concerns over mistreatment from her husband were no longer of real significance”,

the Tribunal made what was in substance a finding that any fear of mistreatment by the husband was not well‑founded.  The Tribunal accepted that the applicant was a victim of domestic violence and was in fear of her former husband but the Tribunal found that any fears the applicant had of harm by her husband were not well‑founded.

24                  The applicant submits that there is no evidence to support these findings and that the Tribunal failed to set out its findings or refer to the evidence in relation to the fear of persecution by her husband.  The complaint is also made that the Tribunal did not address the issue as to whether the applicant was being persecuted in this way by reason of her membership of a particular social group, namely single women or single women without protection in Sri Lanka.  Having regard to the Tribunal’s finding that the applicant did not have a genuine fear that she would be the victim of domestic violence, and that any fears that she may have had were not well‑founded, it was not necessary for the Tribunal to go to the next stage of determining whether the issue of persecution arose by reason of membership of a particular social group.

25                  The applicant pointed to a number of passages in the transcript where the applicant had given evidence about her fear that she would be the victim of violence from her husband if she returned to Sri Lanka.  The following passages were relied upon:

“MR VRACHNAS:           What about your ex‑husband?

MS D. JAYAWARDENE:  He doesn’t know where I am.  I am terribly afraid of him.  He is one of the main reasons that I can’t go back.  If I go back, even … since he is also involved with them I will have no escape.  Even if I go after two or three years he will still find me.  When he was exposed and when all this came to light when they found out – when they found out my tenants were LTTE and they were associates of him in business, my husband lost – ex husband lost a lot of credibility, he lost his business, he nearly went bankrupt, and he physically threatened me and ---

MR VRACHNAS:             When was this?

MS D. JAYAWARDENE:  This was in 1996, the early part.  Towards the latter part of 1996 he just forced me to sign my house as a mortgage to him as well saying that he will kill my family if I don’t do that.

…

MS D. JAYAWARDENE:  … I was frightened of my husband and, like, he was threatening me all the time not to do anything like that, not to go to the authorities, that he wanted them there, they are his business associates, and I was mortally terrified of him.  I was – even prior to that, since I had bad experiences, I didn’t want to get into further trouble because he was the direct threat I had because of his association with the LTTE as well, so I didn’t want to do anything to anger him any further so I just – I didn’t know what to do really.

…

MR VRACHNAS:             You don’t know if you are divorced?

MS D. JAYAWARDENE:  I am too scared to get in touch with him and ask, and ---

…

MS D. JAYAWARDENE:  My relationship with my ex‑husband is not right at all.  It has never been right right from the beginning.  He was just – I don’t want to get – state my personal problems because it is not relevant here, but right from the start I was terrified of him.  And first it was for different reasons but later on it became other reasons.”

Reliance was also placed on the following evidence from the applicant’s mother:

“MRS T. JAYAWARDENE:       He gave us calls sometimes threatening and telling us, ‘Where is she?’  And asking for her address and things like that.  Maybe the – he has – I don’t think he has a permanent place.  He has business all over the country.  He is a qualified engineer, a professional, and also very … man I should say, and he works for the LTTE, he does business for them.”

26                  As against this evidence the respondent pointed to the passage in the submission made to the Tribunal in par 18 above where the applicant said she did not centre her refugee claims upon the Convention ground of membership of a social group.  The respondent also relied upon the following passages in the transcript:

“MR VRACHNAS:           It looked like you had a lot of personal problems in Colombo.  It looked as if you may have had personal problems in Colombo.

MS D. JAYAWARDENE:  Well, the personal – I had personal problems since 1989 when I had – when my husband forced me to go through an abortion.  I had personal problems.  I mean, if I wanted to – I mean, I wouldn’t have – if I wanted to leave on personal problems alone I wouldn’t have stayed that long, believe me, and I left before that.  I could manage my personal problems because everyone has personal problems and it is nothing knew, and my family was very supportive to me, and they cared for me and I cared for them, so as long as – the personal problems I could have handled.”

…”

27                  I have had reservations about the Tribunal’s finding that the applicant does not have a genuine fear that she will be the victim of domestic violence if she returns to Sri Lanka, particularly having regard to the Tribunal’s acceptance that she was a victim of domestic violence and was in fear of her former husband.  I am not sure that I would have reached the same conclusion.  Nevertheless there was some material and evidence before the Tribunal upon which it was open to it to make such a finding.  I am satisfied that there was evidence before the Tribunal upon which it was open to the Tribunal to find that the applicant did not have a genuine fear that she would be the victim of domestic violence if she returned to Sri Lanka.  If I am wrong in that respect I am satisfied that there was evidence before the Tribunal upon which it was open to it to find that any fear that the applicant may have had in this respect was not well‑founded, having regard to the objective circumstances which were before the Tribunal. 

28                  I am also satisfied that even if the applicant did have a genuine fear of domestic violence which was well‑founded, that persecution which she feared if she went back to Sri Lanka was not for the reason of her “membership of a particular social group”.  The social group relied upon by the applicant is the fact of being a single woman or a single woman without protection in Sri Lanka.  The persecution which the applicant fears is persecution by a single person, namely her former husband, not persecution by any other person.  If she were to be subjected to violence from her husband that would not be because she was a single woman or a single woman without protection in Sri Lanka but rather because she was his former wife; that is to say violence would be engendered because of their former relationship of husband and wife.  Put shortly, her husband would not be attacking her because she was a single woman or a single woman without protection, but rather because she was his former wife.  As was said by Black CJ in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 404:

“Each element of the definition must be considered.  A critical element in the present case is that the fear of persecution relied upon must be a fear for reasons of membership of a particular social group.  It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason.”

In Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 Dawson J said at 240-241

“The words “for reasons of” require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution.  It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution.  The persecution must be feared because of the person’s membership or perceived membership of the particular social group.  For instance, the appellants in this case are each members of at least one recognised particular social group – a family, consisting of them and their son – but it is not their membership of that specific family which motivates their prospective persecutors.  The question which arises in this appeal is whether the persecution they fear is by reason of their membership of a particular social group consisting of all such families who face persecution.  That is not only a question about causal nexus, but about what constitutes a ‘particular social group’.”

(See also McHugh J at 257, Gummow J at 284).  These observations are apposite to the applicant’s situation as what motivates her husband to harass and persecute her is the fact of their former relationship, not the fact that she happens to be a single woman without protection.

29                  I have proceeded, for present purposes, on the footing that the particular social group, single women or single women without protection in Sri Lanka, is an appropriate social group for the purposes of Article 1A of the Convention.  However, I doubt that such a group is a proper group for the purposes of Article 1A.  If it is said that single women or single women without protection in Sri Lanka are a social group because they are more vulnerable to, or otherwise fear, persecution, then such a social group is not an appropriate social group for the purposes of Article 1A of the Convention, as a particular social group cannot be defined by reference to a fear of persecution alone:  Applicant A v Minister for Immigration and Multicultural Affairs (supra), per McHugh J at 263; R v Immigration Appeal Tribunal; Ex parte Shah [1999] 2 WLR 1015 per Lord Steyn at 1022, Lord Hoffman at 1037‑1038.

30                  In Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458 the Full Court (Black CJ, Branson and Finkelstein JJ) said at 464:

“In our view, Applicant A’s case is authority for the following propositions.  To determine that a particular social group exists, the putative group must be shown to have the following features.  First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group.  Second, that characteristic must set the group apart, as a social group, from the rest of the community.  Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.”

31                  When one applies these propositions to the applicant’s case I am satisfied that it cannot be said that the applicant has a well founded fear of persecution for reason of her membership of a particular social group.

32                  There is no merit in the submission that the Tribunal incorrectly interpreted and applied the test of “well-founded fear” of persecution.  The Tribunal accurately identified and stated the relevant principles of law and in its reasoning correctly applied those principles to its analysis of, and conclusions on, the facts.

The extortion claim

33                  The applicant submitted that the Tribunal did not consider her claim that she suffered extortion which was backed up by threats to personal safety.  She also submitted that the Tribunal had failed to ask the necessary question whether a Convention ground motivated the extortion in her particular case.  The Tribunal was prepared to accept that the applicant might be the target of attempts to obtain money by illicit means because the applicant’s family was “comparatively well off”.  I am prepared to accept for present purposes that the Tribunal did not go to the next stage and find that the attempts to obtain money were backed up, or fortified, by threats of physical harm.  But even if the Tribunal had made such a finding it does not follow that the fear of such extortion and potential violence, or putting it another way, persecution, is for a Convention ground.

34                  The relevant Convention ground relied upon was political opinion because the demands were made by LTTE supporters or because of the applicant’s membership of a social group, namely people who are wealthy or who have significant assets in Sri Lanka.  Insofar as the extortion occurred or threats were received in relation to the former tenants of the applicant, the Tribunal was satisfied that such threats were motivated by friendship and revenge and were unrelated to the Convention.  It was open to the Tribunal to make such a finding on the evidence before it and I do not consider that the Tribunal erred in law in making such a finding.  The applicant said that whenever she received the threats the persons making them always mentioned the tenants.  She said that the threats were directly related to the tenants every time.

35                  To the extent to which the acts of extortion which occurred were not made in relation to the tenants the Tribunal found that the payments made were not of such a degree of serious harm as to amount to persecution for the purposes of the Convention.  The applicant complains about this finding because it does not take into account the evidence that the extortion threats were backed up by physical threats to the applicant and her family.  The applicant also contends that the Tribunal’s finding that there was “no Convention reason which appears to motivate extortionists” failed to take into account or consider that the acts of extortion directed to the applicant and her family occurred for a particular Convention reason.  It is submitted that these errors by the Tribunal constituted a breach of s 430 of the Act because the Tribunal failed to set out its findings on material questions of law and did not refer to the evidence on which those findings were based.

36                  There is no substance in these submissions.  The Tribunal accepted that it was plausible that the applicant and her family were comparatively well off and had been the targets of extortion attempts by illicit means.  It is implicit in the Tribunal’s reasoning that the extortion was accompanied by threats of harm to the applicant and her family if the demands for money were not met.  So much is found in the Tribunal’s use of the term “extortion” and its reference to the applicant being “the target of attempts to obtain money by illicit means”.  The Tribunal considered the evidence as to the extortion issue and found that there was not a real chance that the applicant would be confronted by extortionists if she returned to Sri Lanka.  Such a finding was open to the Tribunal on the evidence before it.  It was not necessary for the Tribunal to find that the payments demanded would not be of such a degree of serious harm as to amount to persecution for the purposes of the Convention.  Even if that finding was not open to the Tribunal it did not vitiate the Tribunal’s finding that there was not a real chance that the applicant would be confronted by extortionists if she returned to Sri Lanka.

37                  By finding that there was no Convention reason which appeared to motivate extortionists, the Tribunal implicitly rejected the proposition that in this particular case there was a Convention reason for the extortion.  The fact that the applicant and her family were comparatively well off was not a Convention reason.  This finding also rejected the proposition that the extortion occurred because of demands made by LTTE supporters.  It was open to the Tribunal on the evidence to make these findings and reject these submissions. 

38                  Put another way, the Tribunal was not prepared to find that being comparatively well off constituted membership of a social group for the purpose of Article IA of the convention.  The observations of Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 are apposite in this respect.  At 568 his Honour said:

“Persecution involves the infliction of harm, but it implies something more:  an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.  Not every isolated act of harm to a person is an act of persecution.  Consistently with the use of the word “persecuted”, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”.  If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon “membership of a particular social group”.  The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, “membership of a particular social group”, is provided by the words “for reasons of” – the membership of the social group must provide the reason.  There is thus a common threat which links the expressions “persecuted”, “for reasons of”, and “membership of a particular social group”.  That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim’s membership of a particular social group.  He is persecuted because he belongs to that group.”

The applicant’s child

39                  The applicant relies upon the principles discussed in Minister for Immigration and Multicultural Affairs v Teoh (1995) 183 CLR 273 in support of her submission that she had a legitimate expectation that the Tribunal would consider the welfare of her child in the course of determining her application for review.  It is submitted that by failing to give her the opportunity to comment if the Tribunal was not going to consider the welfare of the child:

(a)        the Tribunal failed to observe procedures that were required to be observed by the Act in connection with the making of the decision;

(b)        the Tribunal incorrectly interpreted and applied the applicable law within the meaning of s 476(1)(e) of the Act.

The principles laid down in Teoh do not fall within the category of procedures required to be observed by the Act.  There is nothing in the Act which refers to the considerations raised by Teoh.

40                  I do not consider that the principles laid down in Teoh were relevant to the Tribunal’s consideration of the issues before it and the grounds relied upon by the applicant in support of her claim that she had a well-founded fear of persecution for a convention reason.  The principles laid down in Teoh will be relevant when a decision-maker is exercising a discretion such as occurred in Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405.  It is quite another situation where a decision-maker has to determine whether the evidence before the decision-maker supports the proposition or conclusion that an applicant for a protection visa qualifies for the description “refugee” for the purposes of Article 1A of the Convention.  In Sikahele v Minister for Immigration and Multicultural Affairs (10 November 1998, unreported) Lindgren J was reviewing a decision refusing a grant of a Class 806 Family (Residence) Visa to the applicant.  His Honour found that, as the Tribunal correctly held, the applicant did not satisfy the criteria for the grant of the particular visa for which she applied so that the Minister was required by law to refuse it.  His Honour then considered a submission that the United Nations Convention on the Rights of the Child, which was ratified by the Commonwealth Executive in 1990 and entered into force for Australia on 16 January 1991, overcame the operation of the provisions of the Act and the Regulations as Article 3(1) of the Convention provided:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary consideration”.

His Honour said at [20]:

“I do not accept the submission.  It is one thing to say that a decision maker must take into account the Convention when a decision maker is exercising a discretion or is attempting to resolve a ambiguity, but it is an altogether different thing and one contrary to law, to say that a decision maker or court must or may ignore an unambiguous mandatory time restraint imposed by an Act in favour of the Convention;  cf  Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7 (Mason CJ and Deane J), 298 (Toohey J) and cases there cited”.

(See also Holani v Minister for Immigration and Multicultural Affairs [1999] FCA 484, upheld on appeal [1999] FCA 707). 

41                  In Fakatava v Minister for Immigration and Multicultural Affairs [1999] FCA 1477, Cooper J was concerned with the review of a decision by the Immigration Review Tribunal that the applicant had not satisfied the criteria for the particular visa which had been the subject of application.  It was submitted in substance that the Tribunal had failed to take into account the principles laid down in Teoh and the requirement in Article 3(1) of the Convention on the Rights of the Child that the best interests of the child shall be of primary consideration.  His Honour referred to the passage in Sikahele to which I have referred in paragraph 40 above and said at [42]:

“The decision in Teoh goes no further than to hold that where there is room for the exercise of a discretionary judgment there may be a legitimate expectation that the government decisionmaker will exercise the discretion consistently with Australia’s treaty obligations.  It does not permit decisionmakers to use treaty provisions to make decisions which are contrary to the requirements of Australia’s municipal law.”

In Tafokitau v Minister for Immigration and Multicultural Affairs [1999] FCA 1478 Cooper J, in a case where the applicants failed to comply with the criteria for the grant of the relevant visa, adopted his reasoning in Fakatava and concluded at [15] that the provisions of the United Nations Convention on the Rights of the Child:

“do not allow the provisions of the Act and Regulations to be avoided where otherwise the circumstances require that those provisions be applied.”

I would with respect adopt the observations of Cooper J.

42                  Having regard to the Tribunal’s findings of fact and the relevant principles of the Treaty and the Act it was not open to the Tribunal to avoid the operation of the provisions of the Act by reference to Article 3(1) of the United Nations Convention on the Rights of the Child and find that otherwise the applicant was entitled to a protection visa.

43                  The application to review the decision of the Refugee Review Tribunal made on 16 November 1998 will be dismissed with costs.

Associate:

Dated:              12 November 1999