FEDERAL COURT OF AUSTRALIA

Rajaratnam v Minister for Immigration & Multicultural Affairs

[2000] FCA 1111

MIGRATION – decision of Refugee Review Tribunal refusing protection visa – decision of primary judge affirming decision of Tribunal – appellant citizen of Sri Lanka and of Tamil ethnicity – whether Tribunal erred in inferring that appellant did not have a well-founded fear of persecution in future – where that inference was based on the Tribunal’s finding that the appellant had suffered only one act of persecution for reasons of his ethnicity in the past – extortion – whether Tribunal erred in finding that extortion practised on the appellant by a lieutenant in the Sri Lankan army was motivated by lieutenant’s personal interest in the appellant and not the appellant’s race or ethnicity – multi-faceted nature of extortion – whether Full Court should prefer another inference of fact over the primary judge’s inference where both inferences equally open to primary judge – where inferences concern whether Tribunal has committed an error of law

Migration Act 1958 (Cth) s 476(1)(e)

Sidhu v Holmes [2000] FCA 776 considered

Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 considered

Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 considered

Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 166 ALR 641 referred to

MANUEL RAJARATNAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 27 OF 2000

MOORE, FINN AND DOWSETT JJ

10 AUGUST 2000

SYDNEY

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         The orders made below be set aside.

3.         The decision of the Refugee Review Tribunal be set aside.

4.         The matter be remitted to the Refugee Review Tribunal for determination according to law.

5.         The respondent pay the appellant’s costs of the appeal and of the proceedings below.

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

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MOORE J:

1                     I have read the reasons of Finn and Dowsett JJ in a draft form.  It is unnecessary to repeat their Honours’ summary of the reasons of the Refugee Review Tribunal (“the Tribunal”) and the summary of the approach of the learned primary judge and her conclusions.  It is also unnecessary to repeat in its entirety the account the appellant gave to the Tribunal of some of his experiences in Sri Lanka which the Tribunal accepted. It is sufficient, at this point, to note that the Tribunal accepted as plausible and credible the account the applicant gave of his dealings with Lt Ratnayake, and appears to have accepted either expressly or impliedly the entire account.

2                     Ground 3 in the notice of appeal concerns the Tribunal's consideration of the extortion of the sum of 120,000 rupees from the appellant by a group of soldiers at a checkpoint.  The approach of the Tribunal was criticised because, so the appellant contended, it proceeded on the assumption that the future would reflect the past.  That is, the Tribunal erroneously assumed that because there had been only one instance of extortion of the appellant at a checkpoint (and the appellant must have passed through checkpoints on many occasions) it could not be satisfied that there was a real chance the appellant would suffer extortion of a similar kind in the future.  In my opinion the primary judge correctly disposed of this point when she said:

“The Tribunal plainly understood that it was required to assess the degree of probability that the applicant would suffer extortion for reasons of his being a Tamil should he return to Sri Lanka.  It did not reach its conclusions solely on the basis that the applicant had only been a victim of extortion once in the past, although it did properly place weight on its finding in this regard.  It referred also to the independent evidence touching on the level of extortion in Sri Lanka (which suggested that it was widespread) and to evidence that the government was making attempts to rectify the problem.  The weight to be given to these various matters was a matter for the Tribunal.”

3                     Ground 2 of the notice of appeal raises a more difficult issue.  As noted earlier the Tribunal accepted the appellant’s account of his dealings with Ratnayake.  The conclusion reached by the Tribunal appears to have been that Ratnayake was motivated by what was described as the purely personal interest he had in the appellant and that he was not motivated by the appellant’s race or ethnicity or nationality.  The primary judge took the view that this constituted a finding of fact and there was no reason to conclude that the Tribunal had overlooked the evidence that the appellant had been abused by Ratnayake or had overlooked the independent evidence concerning extortion of Tamils in Sri Lanka

4                     The Tribunal dealt with the appellant’s claims concerning his treatment by Ratnayake in the way set out in pars 26 to 29 of the judgment of Finn and Dowsett JJ.

5                     The appellant contended before the primary judge that the Tribunal erred in law (as comprehended by s 476 (1) (e) of the Migration Act 1958 (Cth) (“the Act”)) by failing to consider “the nature and extent of any causal connection between the harm the applicant experienced at the hands of Lt Ratnayake and his Tamil ethnicity”.  As to this contention the primary judge said:

“[16]  I see no reason to conclude that the Tribunal was led into legal error by its use of the word “motivation” rather than the language of the Convention “for reasons of …”.  The reasons of the Tribunal are not to be over-zealously scrutinised.  In a number of authorities the importance of the identification of the motivation of a persecutor has been stressed (see, for example, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 esp per Dawson J at 241 and Gummow J at 284; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574).  The Tribunal correctly, in my view, identified the issue for its consideration as one of causation.  Further, the emphasis placed by the Tribunal on its finding that Lt. Ratnayake’s interest in the applicant was purely personal suggests that it was alert to the possibility of the applicant’s harsh treatment by Lt. Ratnayake having more than one effective cause.  The Tribunal is to be understood as rejecting this possibility as a matter of fact.”

6                     The primary judge then noted the emphasis placed by the appellant on the fact that he was subjected to racial abuse by Ratnayake and was accused of assisting the Tamil organisation, as well as on evidence before the Tribunal that Tamils are subjected to harassment and human rights abuses in Sri Lanka generally.  The primary judge said:

“[18] I see no reason to conclude that the Tribunal overlooked these matters when it concluded that Lt. Ratnayake’s interest in the applicant was purely personal.  It referred in its reasons for decision to independent evidence from a number of sources touching on bribery and extortion in Sri Lanka with particular reference to Tamils.  A differently constituted Tribunal might have reached a different decision on the evidence.  However, it is not open to this Court to review the decision of the Tribunal on its merits.”

7                     The gravamen of the appellant’s submissions in the appeal on this point was that the reasons of the Tribunal, at best, give the appearance of the Tribunal having understood what is comprehended by the expression "for reasons of" in the Convention but, on closer analysis, the Tribunal did not understand the applicable legal principles.  That involved an incorrect interpretation of the law for the purposes of s 476(1)(e) of the Act.  The primary judge erred in not recognising this.  The respondent submitted that the Tribunal articulated the relevant legal principles and it cannot be inferred that it did not apply them.

8                     In its reasons the Tribunal, when discussing the question of what might have motivated Ratnayake, did not refer to or discuss the effect or significance of three aspects of the appellant’s account that the Tribunal had apparently accepted as correct.  Firstly, it did not refer to or discuss the occasion when Ratnayake had described the appellant in his shop as a “dirty Tamil”, refused to pay and taken goods.  Secondly, it did not refer to or discuss the occasion when the Lieutenant came into the shop, abused the appellant and indicated it was “his duty to eliminate all the Tamils”. Thirdly, it did not refer to or discuss the demand of Ratnayake, made immediately after the execution of the two Tamil youths, that the appellant provide him with whatever he wanted when he came to the shop or to the appellant’s agreement to this demand.

9                     Each of these matters was relevant to any consideration of the nature of the relationship between the appellant and Ratnayake and any assessment of what motivated Ratnayake in his dealings with the appellant if that consideration was to be undertaken in accordance with established legal principle.  That is because at least part of what Ratnayake was doing was demanding payment, in kind, from the appellant.  It was, as Finn and Dowsett JJ point out, a form of extortion. In my opinion, the real issue in this appeal is whether the primary judge erred by not inferring that the Tribunal did not appreciate how a relevant legal question (raised by the findings it made) should be formulated and answered. Such an inference might be drawn because the Tribunal did not expressly deal with, or deal in any detail with, the findings referred to in the preceding paragraph.

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 & Multicultural Affairs (1999) 84 FCR 274 particularly in pars 15 and 16.

11                  It is now well settled that the Court should not overzealously scrutinise the reasons of an administrative body such as the Tribunal.  The primary judge referred to these principles. In addition, if legal error is said to arise by inference from the reasons of the body, error should not be inferred lightly.  In that respect I adopt the approach discussed by Madgwick J in Sidhu v Holmes [2000] FCA 776 at par 13:

“If inferred error of law is an acceptable ground of review under the Act, then there is much to be said for the caution urged by counsel for the respondent that the search for such an inferred misunderstanding should not permit, as in some applications based on reasonableness, what is in truth an invitation to merits review …”

12                  The approach of the learned primary judge was to infer that the Tribunal had considered but rejected the possibility that, given the findings it had made concerning what Ratnayake had actually done (including what he had said to the appellant), Ratnayake had treated the appellant in the way he did because of the appellant’s race or ethnicity or nationality. It would have, in my opinion, been open to the primary judge to have come to a different conclusion given that the Tribunal did not refer to or discuss what were fairly compelling findings that Ratnayake’s conduct was associated with racial abuse and, in relation to the execution of the Tamil youths, patent and gross hostility towards Tamils. That failure would have justified, in my opinion, an inference that the Tribunal did not really appreciate the relevant legal principles.

13                  However this is an appeal and it is necessary for the conclusion of the primary judge to be given due weight.  In an appeal where there is an issue about findings of fact made by the trial judge based on inferences drawn from findings of primary fact, the circumstances may be such that the correct approach is that discussed by Beaumont and Lee JJ in Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 368-369:

“The Court is unlikely to be so satisfied [that the trial Judge failed to draw inferences that should have been drawn from the facts established by the evidence] if all that is shown is that the trial judge made a choice between competing inferences, inferences being a choice the Court may not have been inclined to make but not a choice the trial judge should not have made.”

14                  In the present case the nature of the inference in question is not of the type ordinarily in issue.  That is, this appeal concerns whether an error of law should have been inferred and not simply whether a particular inferred fact should have been found as part of the fact finding function of a trial judge.  However I see no reason in principle why the approach of Beaumont and Lee JJ should not apply when considering whether an inference should have been drawn by the primary judge that an administrative tribunal committed legal error.  In the present case it was, in my opinion, equally open to the primary judge to infer error as it was to infer no error.  That latter view is supported by the Tribunal’s correct identification and application of the relevant legal principles in relation to the extortion at the checkpoint.  As the primary judge adopted the latter view it is not appropriate in these circumstances, in my opinion, for this Full Court to prefer the inference that there was error.

15                   It follows, in my opinion, that this Full Court should not interfere with the primary judge's conclusion that the Tribunal’s decision did not disclose an error of law being an error involving an incorrect interpretation of the applicable law: see s 476(1)(e) in its consideration of Ratnayake’s conduct.

16                  Accordingly I would dismiss the appeal and order that the appellant pay the respondent’s costs.

Associate:

Dated:              10 August 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FINN AND DOWSETT JJ:

Introduction

17                  This is an appeal from a decision of a Judge of this Court dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”).  That latter decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa to the appellant.  For present purposes, the appellant will be entitled to refugee status if:

… owing to well-founded fear of being persecuted for reasons of race … [he] is outside [Sri Lanka] … and … owing to such fear, is unwilling to avail himself of the protection of that country … .

Background

18                  The appellant is a Sri Lankan man of Tamil ethnicity who arrived in Australia on 11 April 1996 and applied for a protection visa on 22 May 1996.  That application was rejected on 30 September 1996.  On 15 July 1999 the Tribunal affirmed that decision.  The relevant facts, as accepted by the Tribunal, are set out below.  They are primarily concerned with the treatment to which the appellant was subjected by a Lieutenant Ratnayake and an incident of extortion which the appellant experienced at a checkpoint in Kollupittya.  The following summary comes largely from the reasons for judgment given by the learned primary Judge and from the Tribunal’s findings.

19                  The appellant was a merchant, trading in partnership.  He was the partner primarily concerned in running the business.  The business was located at the heart of Colombo, in Pettah.  It traded in all kinds of grocery items, both wholesale and retail.  Between 1988 and 1994 the partnership supplied goods to the army, represented by a Major Herath.  The appellant paid Major Herath a “commission” on army purchases.  The business was profitable.  In 1994 Major Herath was posted to another location in Sri Lanka and introduced the appellant to Lt Mendis, who took over the purchasing.  Subsequently Lt Ratnayake became involved in the process.  The appellant dealt with Mendis and Ratnayake on the same basis as he had with Major Herath.  On occasions he was paid in cash, but sometimes by cheque.  From the beginning of 1995 cheques were frequently dishonoured.  Initially, the defaults were small but eventually, the partnership was receiving only about 10% of the value of the goods sold, with promises of later payment.  The appellant told Ratnayake that he could not continue to supply him unless he was paid.  Ratnayake became angry and scolded the appellant in front of three shop assistants.  He said

You dirty Tamil.  If Tamil Tigers come and ask you, you give all what you have.  When they want to pay money and buy you don’t want to have any dealings with them.  If you don’t give items today you will be in big trouble. 

Ratnayake then took what he wanted.  The appellant became concerned and discussed the matter with his partners.  One of them, Mr Yousef said that as the appellant had initiated the dealings with the army, he should handle the problem.  The appellant continued to supply Ratnayake who continued to pay only part of the amount due.  By August or September 1995, the total debt was about 70,000 Sri Lankan Rupees, a very large amount for the partnership.  By this time, it was causing difficulty in running the business.  They were unable to maintain stock levels and profits.  Mr Yousef urged the appellant to recover the moneys owing.  He tried to contact Mr Pathmanathan, who had originally introduced the army personnel.  He had moved to another suburb in Colombo.  When the appellant ultimately found him, he said that he could do nothing.  Unable to find any other solution, the appellant pawned his wife’s jewellery, including the ‘Thali’ the symbol of marriage according to Tamil culture.  He said that these problems were beginning to ruin his family life.

20                  At the end of September 1995, the appellant decided to make a formal complaint.  He travelled to Panagoda Army Camp and made a statement to an officer called Lt Wijesuriya.  Some days later, Lt Wijesuriya informed him that as Ratnayake was involved in the dealings, he could not do anything until an inquiry was held.  At a later stage he said that Ratnayake had been transferred to another part of the country.  The appellant was shocked, realizing that in those circumstances, it would be difficult to recover the debt.  Lt Wijesuriya told him that as the appellant had already made a complaint it was his duty to conduct an inquiry.

21                  On a day towards the end of September 1995, Ratnayake and three other soldiers came to the partnership premises.  They all had automatic weapons.  Ratnayake told the appellant that he was aware that he had made a complaint about him.  He looked very angry.  In front of the assistants, Ratnayake grabbed the appellant by the shirt collar and began to abuse him.  The appellant was humiliated.  Ratnayake said that his duty was to eliminate all Tamils from Sri Lanka, that there was no room for Tamils and that Sri Lanka belonged to the Singhalese.  One of the soldiers went to a shelf and dislodged items on it, so that they fell to the floor.  This harassment lasted for about ten minutes.  Finally, Ratnayake said that if the appellant went to the camp again or said anything further against him, he would kill him and that his relatives would not find his body.  The appellant was very afraid.  That night he told Mr Yousuf that he was not interested in the business any more.  Mr Yousuf became very upset and said that they should forget the money.

22                  Early in October 1995 the appellant received a letter from the army requesting him to report to the army camp on a nominated day.  On the evening before that day, the appellant was abducted by Ratnayake.  He was blindfolded and taken a short distance.  When his blindfold was removed, he saw seven or eight soldiers with Ratnayake and two handcuffed and blindfolded youths.  He was told that the two youths were members of LTTE (Liberation Tigers of Tamil Eelam).  Each of the youths was then shot and killed by the soldiers.  Their bodies were dumped into a nearby river.  The appellant was shivering and did not know what to do.  He knelt in front of Ratnayake and told him that he (the appellant) would never ask for any money and that he had children to look after.  He cried and said that he would withdraw his complaint.  Ratnayake then said that this was his last chance, that he was pardoning his life as they did business together, and that the appellant should provide him with all that he wanted when he came to his shop.  The appellant agreed.  The soldiers then took the appellant to a checkpoint near his home and told him to go.  He was in a state of deep anxiety and spent three weeks in hospital.  When he recovered, he decided to leave the country.  He returned to the business on only a couple of occasions.  Mr Yousuf took over its conduct.

23                  Another incident occurred in December 1995 as the appellant was making arrangements to leave Sri Lanka.  When he stopped at a checkpoint, a group of soldiers took his passport and 12,000 rupees which he was carrying.  The soldiers said that they knew that he was an LTTE suspect and that he was trying to flee the country.  The appellant later recovered his passport after paying them 120,000 rupees in four instalments.

24                  There was substantial general evidence of bribery and extortion in Sri Lanka.  It is summarized in the following passage from p 21 of the Tribunal’s discussion of the checkpoint incident:

The Tribunal accepts as credible the applicant’s evidence that he was extorted by three or four soldiers at a checkpoint.  The applicant’s evidence in this regard is consistent with the independent evidence above that suggests that extortion is widespread in Sri Lanka and that there is a prevalence of bribery and extortion at checkpoints.  In fact, the independent evidence suggests that it is practiced by government officials, the police and security forces, the LTTE and anti-LTTE militant Tamil groups.

The Tribunal is further satisfied that the applicant was extorted for a Convention reason – namely his race (Tamil), and is supported in this finding by the independent evidence above which suggests that Tamils, in particular in Sri Lanka, are targets of extortion – simply because they are Tamils.

The decision of the Tribunal

25                  The Tribunal accepted the appellant’s claims concerning his treatment at the hands of Ratnayake and as to the checkpoint incident, but rejected certain other claims.  It then considered the Ratnayake incidents and the checkpoint incident separately.

26                  In relation to the former, the Tribunal directed itself as follows:

Because persecution implies an element of motivation, a bare causal connection between the harm feared and a Convention ground is not enough.  Although the applicant is a Tamil, and the applicant was harmed by Lt. Ratnayake, in order for the Tribunal to be satisfied that the applicant fulfils the requirements of the Convention, it must be satisfied that Lt. Ratnayake was motivated to harm the applicant for a Convention reason. (p 20)

27                  The Tribunal then referred to the judgment of French J in Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293 at 299-300 in support of this proposition and continued:

The applicant gave evidence that Lt. Ratnayake sought to do him harm because he made a complaint to the Army about Lt. Ratnayake’s behaviour.  He gave evidence that the incident in which he was kidnapped and brutalised by Lt. Ratnayake was because the Lieutenant wanted to scare the applicant into withdrawing his complaint.  The applicant’s witness gave evidence that Lt. Ratnayake would carry on a “personal vendetta” against the applicant.  Thus, although the applicant is a Tamil, the Tribunal is satisfied from the applicant’s evidence that Lt. Ratnayake’s motivation in seeking to harm the applicant in the past, and at any time in the future, was personal and not because of his race, religion, nationality, membership of a particular social group or political opinion. (p 21)  (Emphasis added)

28                  The Tribunal then noted the comments of Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 to the effect that the requirement that persecution be “for reasons of” one of the prescribed categories excludes from the purview of the Convention “indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim …”.  The Tribunal concluded:

The evidence supplied by the applicant at his hearing makes it clear that Lt. Ratnayake was interested in the applicant – not because of his Tamil race [or nationality] – but rather as an individual, initially because he was able to make money from their dealings, and later because he did not want the applicant to pursue any complaints against him.  Lt. Ratnayake’s interest in the applicant was purely personal, and not characteristic of any Convention grouping.  The Tribunal therefore cannot be satisfied that the applicant has a well founded fear of being persecuted for a Convention reason. (p 21)  (The words “purely personal” are italicised in the original text, presumably for emphasis.)

29                  As to the incident at the checkpoint, the Tribunal accepted that it amounted to persecution for reason of the appellant’s Tamil ethnicity and referred to independent evidence that extortion directed at Tamils was common.  However it concluded that it was not satisfied that the appellant’s fear of extortion in the future was well-founded, stating:

Extortion is, according to the independent evidence, widespread in Sri Lanka.  The applicant lived all his life (until 1996) in Colombo apart from the four years he spent in Saudi Arabia between 1980-84.  In all these years – and in particular since 1984-1996 – the applicant has claimed one incident of extortion even though he must have passed through checkpoints on innumerable occasions.  The applicant’s evidence thus suggests that he suffered an isolated incident of persecution.  (Emphasis is original.)

Based on the applicant’s own previous experiences and evidence at the hearing, and in light of the independent evidence which suggests that the government is making attempts [albeit slowly] to redress the problem of extortion through the anti-harassment committee, and through official investigations, the Tribunal cannot be satisfied that there is a real chance of the applicant being extorted in Sri Lanka, in the foreseeable future.  Rather, based on the applicant’s own evidence the chance is remote and insubstantial.  The Tribunal cannot therefore be satisfied that the applicant’s fear of persecution for reasons of his race (extortion because he is a Tamil) in the foreseeable future in Sri Lanka is well founded. (p 22)

30                  The conclusion that the appellant had only once been the victim of racially motivated extortion assumed that the Ratnayake incidents could not be so described.  Those incidents also occurred during 1995.  It should be noted that after the checkpoint incident, the appellant left Colombo for Kandy, residing there from January 1996 until he departed for Australia in April of that year.

The decision of the primary judge

31                  The appellant applied to this Court for judicial review on two grounds.  The first was that the Tribunal erred in law (s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”)) by:

(a)    failing to consider “the nature and extent of any causal connection between the harm that the applicant experienced at the hands of Lt. Ratnayake and his Tamil ethnicity”;

(b)   failing to consider “whether the applicant’s ethnicity made him more vulnerable to persecution by Lt. Ratnayake”; and

(c)    assuming, “in relation to the applicant’s fear of being the victim of extortion for reasons of his race, that the future would reflect the past” and failing to consider “whether the future may be different from the past”.

32                  The second ground was that the Tribunal failed to observe procedures required by the Act (s 476(1)(a)), in that it “failed to refer to evidence or other material on which it based its finding that the government is making attempts to address the problem of extortion” (s 430(1)(d)).

First Ground

33                  As to the first two contentions, that the Tribunal failed to consider “the nature and extent of any causal connection between the harm that the applicant experienced at the hands of Lt. Ratnayake and his Tamil ethnicity” and “whether the applicant’s ethnicity made him more vulnerable to persecution by Lt. Ratnayake”, the primary Judge concluded:

[16]    I see no reason to conclude that the Tribunal was led into legal error by its use of the word “motivation” rather than the language of the Convention “for reasons of …”.  The reasons of the Tribunal are not to be over-zealously scrutinised.  In a number of authorities the importance of the identification of the motivation of a persecutor has been stressed (see, for example, Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 esp per Dawson J at 241 and Gummow J at 284; Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568, Minister for Ethnic Affairs v Guo (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574).  The Tribunal correctly, in my view, identified the issue for its consideration as one of causation.  Further, the emphasis placed by the Tribunal on its finding that Lt. Ratnayake’s interest in the applicant was purely personal suggests that it was alert to the possibility of the applicant’s harsh treatment by Lt. Ratnayake having more than one effective cause.  The Tribunal is to be understood as rejecting this possibility as a matter of fact.

34                  Her Honour noted that the appellant emphasized the racial abuse suffered by him at the hands of Ratnayake and the evidence that Tamils are subjected to harassment and human rights abuse in Sri Lanka, and then observed:

[18] I see no reason to conclude that the Tribunal overlooked these matters when it concluded that Lt. Ratnayake’s interest in the applicant was purely personal.  It referred in its reasons for decision to independent evidence from a number of sources touching on bribery and extortion in Sri Lanka with particular reference to Tamils.  A differently constituted Tribunal might have reached a different conclusion on the evidence.  However, it is not open to this Court to review the decision of the Tribunal on its merits.

35                  The third contention was that the Tribunal erred in concluding that the appellant did not have a well-founded fear of being the victim of extortion in future.  This finding concerned the checkpoint incident.  The Tribunal concluded that because the appellant had been the victim of extortion on only that occasion, it could not infer that there was a real chance of his being subjected to extortion in the future.  The primary Judge observed:

[22] The Tribunal plainly understood that it was required to assess the degree of probability that the applicant would suffer extortion for reasons of his being a Tamil should he return to Sri Lanka.  It did not reach its conclusion solely on the basis that the applicant had only been a victim of extortion once in the past, although it did properly place weight on its finding in this regard.  It referred also to the independent evidence touching on the level of extortion in Sri Lanka (which suggested that it was widespread) and to evidence that the government was making attempts to rectify the problem.  The weight to be given to these various matters was a matter for the Tribunal.

[23] A differently constituted Tribunal may well have reached a different conclusion as to whether the applicant has a well-founded fear of extortion for reasons of being a Tamil if he returns to Sri Lanka.  However, I am not satisfied that the decision of the Tribunal … involved an error of law … .  Merits review of the decision of the Tribunal is not available in this Court.

Second Ground

36                  As to the second ground of the application for review, namely that the Tribunal failed to refer to the evidence or other material on which it based its finding that the government was making attempts to address the problem of extortion, the primary Judge noted:

[24] …  As developed, this contention took on the character of a challenge to the weight attached by the Tribunal to a press report in the South China Morning Post which referred to a government-ordered investigation into an extortion scandal involving Tamils detained by city and suburban-based police, and to its failure to refer explicitly to a US Department of State Country Report on Sri Lanka from which its knowledge of the Anti-Harassment Committee was apparently derived.

37                  Her Honour concluded:

[26] …  The Tribunal’s relevant finding on a material question of fact was that “the chance [of the applicant being extorted in Sri Lanka] is remote and insubstantial.”  It was only required to refer to the evidence or other material on which the finding was based.  It did so, in my view, by referring to the “independent evidence” upon which it relied in concluding that “the government is making attempts to redress the problem of extortion” and by referring to the applicant’s evidence of his previous experiences in Sri Lanka.  The “independent evidence” to which the Tribunal referred is now before the Court in the book of relevant documents prepared by the respondent.  No suggestion has been put to the Court that the material referred to by the Tribunal as the “independent evidence” was not capable of being identified or has not been identified.

The issues in the appeal

38                  At the hearing of the appeal one ground was abandoned.  The following grounds were pressed:

2.         The Court erred in finding that the Refugee Review Tribunal ("the Tribunal") had not erred by misinterpreting the law and misapplying the law to the facts that it found as regards the words, "for reason of race ..." in Article 1A (2) of the Convention Relating to the Status of Refugees 1951 (the Convention).

Particulars

a)         The Refugee Review Tribunal failed to consider whether, on the facts which it found, the appellant faced an increased vulnerability to racially motivated persecution.

3.         The Court erred in finding that the Refugee Review Tribunal had not erred by misinterpreting and misapplying the law to the facts that it found as regards the issue of whether the appellant had a well founded fear of persecution in terms of the Convention.

Particulars

a)         The Tribunal assumed, in relation to the applicant’s fear of being the victim of extortion for reason of his race, that the future would reflect the past, and failed to consider whether the future may be different from the past.

39                  Ground 3, as particularized, is no more than a complaint that the Tribunal drew an inference as to fear of future persecution from the frequency of past persecution.  Presumably, it relates to the Tribunal’s dismissal of the checkpoint incident as a basis for fear of persecution because it was, in the Tribunal’s view, the only such incident experienced by the appellant.  Taking the evidence of this incident in isolation, such an inference was reasonably available, and we very much doubt whether this ground of appeal, by itself, relates to a permissible basis for judicial review of the Tribunal’s decision.  However we doubt whether it was appropriate, in this case, to consider the evidence in such a fragmented way. 

40                  As we understand the appellant’s case, it comprised three elements, namely:

·                 That extortion directed at Tamils was relatively widespread in Sri Lanka, being practised by the Tamil guerilla organization (LTTE) and similar groups and by government officials, the police and security forces.  Although the government has taken some steps to remedy the situation, it has historically been unable to protect Tamils from such extortion;

·                 That the appellant experienced such extortion at the hands of Ratnayake from the time when the latter first failed to pay for the goods in question, culminating in the quite shocking incident in which two young Tamils were killed in the appellant’s presence; and

·                 That the appellant was also subjected to extortion in the checkpoint incident.

41                  The general evidence of extortion directed against Tamils could, by itself, have been sufficient to justify an inference that the appellant had a well-founded fear of persecution for a Convention reason although it is unlikely that the Tribunal would have drawn such an inference in the absence of evidence of racially motivated extortion directed at the appellant, his family or associates.  However the appellant offered evidence of such personal experience which the Tribunal accepted.  Both the Ratnayake incidents and the checkpoint incident were arguably incidents of extortion or similar conduct, said to be commonly directed against Tamils.  The Tribunal appears to have considered that the former incidents should not be so treated, perhaps because no precisely similar incident was referred to in the general evidence concerning extortion directed at Tamils.  If that is the reason, then we consider that the Tribunal has taken an unjustifiably narrow view of the circumstances which may constitute extortion.  New methods of extortion will be developed to exploit every opportunity.  However such an error would not justify intervention by this Court.  Nevertheless, the Tribunal’s view of the Ratnayake incidents seems to have led it to consider the evidence concerning them in isolation from the general evidence of extortion directed at Tamils.  These incidents were then dismissed from further consideration on the basis that they were motivated by “personal” considerations rather than by race.  By so dismissing the Ratnayake incidents, the Tribunal established a doubtful factual basis for its ultimate conclusion that the appellant’s fear of racially motivated extortion could not be well-founded because he had only once experienced such extortion.

42                  It is appropriate, at this stage, to consider the mechanism by which extortion may constitute persecution for reason of race.  This question was addressed by Burchett and Lee JJ in Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274, especially at pars 15 and 16 as follows:

A separate issue in the Tribunal related to the question of extortion.  The appellant gave evidence of extortionate demands made upon her by the LTTE, enforced by violence and threats of violence, from which the government was plainly unable to protect her.  As to this, the Tribunal found:

“While there is no doubt that the LTTE approaches Tamil[s] for funding, its primary reason for selecting individuals as prime targets for extortion is because of their perceived wealth …”

The appellant was seen as affluent.  Although the Tribunal expressly accepted that “the LTTE has frequently attempted to extort money from the applicant”, and that, given its “current strength in the Eastern Province … there is a real chance based on past occurrences that the LTTE would make similar demands on the applicant were she to return to her home and estates in Thambiluvil”, it did not regard activity of this kind as “persecution for a Convention reason”.

The Tribunal cited Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, where Burchett J said (at 569), in a judgment with which O’Loughlin and R D Nicholson JJ agreed:

“Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim.  Their forays are disinterestedly individual.”

But this was in the context (as appears from the same judgment at 567) of an express finding by the Tribunal that “the applicant has not satisfied me that the extortion was anything other than a criminal act, or that he was targeted for any reason other than he was known to have money”.  Here, the Tribunal’s finding is the opposite: it says “there is no doubt that the LTTE approaches Tamil[s] for funding”.  The additional fact that the particular Tamils approached are chosen “because of their perceived wealth” is no more legally relevant than the fact (in Paramanthan) that the security forces targeted, among Tamils, young males from Jaffna who might be thought more likely to be guerillas.  Extortion directed at those members of a particular race from whom something might be extorted cannot be excluded from the concept of persecution within the Convention, and Ram does not suggest it can.  On the evidence, it was plainly open to the Tribunal to conclude that the fanatical combatants in the LTTE saw it as the obligation of every Tamil to make sacrifices, willingly or by coercion, for Tamil Eelam.  No doubt, it was for this reason the finding was made “that the LTTE approaches Tamil[s] for funding”.  A motivation of this kind is sufficient for the purposes of the Convention.  The words “persecuted for reasons of” look to the motives and attitudes of the persecutors (see Ram at 569), and if the LTTE practices extortion, with violence and threats of violence, against Tamils, the government being unable to provide protection, because the LTTE holds that Tamils must be coerced into supporting it, the terms of the Convention are satisfied.

43                  The appellant’s case concerning the Ratnayake incidents was that the latter was able to exploit the former because of his Tamil ethnicity and the relative lack of protection extended to Tamils by the Sri Lankan government.  There was substantial evidence to support this view.  On the occasion on which the appellant first raised with Ratnayake the possibility of discontinuing the supply of goods unless he was paid, he was subjected to racist abuse.  After the appellant complained to the army about Ratnayake’s conduct, he and other armed soldiers came to the shop and again offered violence.  Ratnayake spoke of his duty to eliminate all Tamils from Sri Lanka.  The incident involving the two young Tamils was clearly intended to demonstrate to the appellant that Ratnayake could do what he liked where Tamils were concerned.  This appears to have been the appellant’s reading of it.

44                  This evidence would certainly justify an inference that Ratnayake was exploiting the vulnerability of Tamils for his own financial benefit and perhaps, in order to prevent detection of his misconduct.  Although Ratnayake’s initial default in payment may have been unrelated to the appellant’s ethnicity, there is reason to conclude that his subsequent conduct was based upon exploitation of the appellant’s vulnerability, which vulnerability was because of his ethnicity.  We may not usurp the role of the Tribunal in this matter, and we do not assert that such a conclusion was inevitable.  However we consider that if the Tribunal had fully understood the import of the passage from Perampalam which we have quoted above, it would inevitably have recorded a much more detailed assessment of this evidence and of any other circumstances which might have tended to prove or disprove that Ratnayake’s conduct constituted persecution for a Convention reason.  In particular, we note that:

·                 there was no explanation of why the Tribunal concluded that Ratnayake’s conduct was not motivated by matters of race, given that such conduct was overtly based upon such matters;

·                 the general evidence as to racially-based extortion was not considered in connection with the Ratnayake incidents; and

·                 there was no explanation as to why random extortion by soldiers at a checkpoint should be found to be racially motivated whilst exploitation of the same person, with ethnic abuse and violence directed to persons of shared ethnicity, should be found not to be so motivated.

45                  Of course, it was open to the Tribunal to conclude that the Ratnayake incidents and the checkpoint incident were motivated in different ways, and there were reasons for so concluding.  However, we would have expected to see a discussion of these matters in the reasons if the Tribunal had considered them.  We stress that we are here seeking to identify and evaluate the process of reasoning undertaken by the Tribunal.  We are not questioning the adequacy of the Tribunal’s exposure of that process in its reasons.

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) 166 ALR 641 at 645-646.  The need for this is apparent enough.  In the usual case of extortion the extorting party will be acting for a self-interested reason (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.

49                  We suspect that the Tribunal failed to recognise this possible duality when making its finding in relation to the isolated act of extortion at the checkpoint.  After all, those soldiers were also certainly motivated by self-interest.  However, as to the Ratnayake incidents, it is clear that the Tribunal did not recognise that Ratnayake's conduct towards the appellant had to be assessed in the setting in which it occurred.  Having succeeded to an established procurement arrangement with the appellant's business which provided for the payment of a secret commission to him, Ratnayake's initial interest in the appellant could properly be characterised as being an interest in the appellant as an individual "because he [Ratnayake] was able to make money from their dealings".  Likewise to the extent that later interest was shown in the appellant because the Lieutenant "did not want [him] to pursue any complaints against him", that interest in taking action against the appellant could again be characterised as an interest in the appellant "as an individual".  But the sum of these two interests by no means exhausted his interest.

50                  First, he transformed an illegal, but previously mutually acceptable and long standing, procurement arrangement into one oppressive of the appellant because of non-payment for goods supplied.  Secondly, the appellant's initial resistance to this was met by racial abuse and a continuation by Ratnayake of his practice of purchasing goods but of paying little.  Thirdly, after the appellant’s formal complaint to the army, two incidents involving Ratnayake occurred.  The second of these, the summary execution of the Tamil youths could be viewed as designed to induce the appellant to withdraw his complaint or to secure the continuation of the extorsive relationship that had previously existed between the parties.  In either case, the totality of the evidence accepted by the Tribunal necessarily raised for consideration whether that conduct was practised for a Convention reason.  Given the obvious manifestation of racial attitudes during the course of Ratnayake’s dealings with the appellant, it was necessary to address the complex causation inquiry mentioned earlier.  When one has regard to the particular matters focussed upon by the Tribunal, it is clear that the Tribunal misconceived how that inquiry was to be undertaken.  It was not sufficient to find that at particular times or in respect of particular actions, Ratnayake’s interest in the appellant was personal.  Such a finding, while unexceptionable as far as it goes, simply does not exhaust the causation inquiry.  The Tribunal was, in the circumstances, obliged to consider whether the totality of Ratnayake’s actions (including those manifesting a personal interest) in the setting in which they occurred had, as well, a Convention-related character.  The Tribunal failed to do this.  In so doing it misunderstood what was required of it in applying the law to the claims and evidence it had accepted.

51                  We conclude that the Tribunal has failed to appreciate the nature of the relevant test and has erred in law in so doing.  In those circumstances the appeal from the decision of the learned primary Judge should be allowed and the orders made below set aside.  The decision of the Tribunal should also be set aside and the matter remitted to it for determination according to law.  The respondent should pay the appellant’s costs of the appeal and of the proceedings before the learned primary Judge.

Associate:

Dated:              10 August 2000