FEDERAL COURT OF AUSTRALIA Thomas v Minister for Immigration & Multicultural Affairs [2000] FCA 1735 JULIAN RAVENDRAN THOMAS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 970 of 2000 HILL J 24 NOVEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 970 OF 2000 BETWEEN: JULIAN RAVENDRAN THOMAS APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL J DATE: 24 NOVEMBER 2000 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 Before the Court is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of the Minister for Immigration and Multicultural Affairs ("the Minister"), or a delegate of the Minister, not to grant a protection visa to Mr Julian Ravendran Thomas ("the applicant"). 2 Two matters are raised, each of which is said to constitute either a breach of s 476(1)(a) or s 476(1)(c) of the Migration Act 1958 (Cth) ("the Act"). For present purposes it does not matter how one characterises the submission of the applicant. It suffices to say that the real complaint is that the Tribunal constructively failed to exercise its jurisdiction by failing to deal with two matters, each of which it is alleged afforded a case for the applicant. 3 One of the criteria for obtaining a protection visa is that the decision-maker be satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees amended by the 1967 Protocol relating to the Status of Refugees ("the Convention"). Australia will have protection obligations to an applicant if that person satisfies the decision-maker that he or she is a refugee as defined in Article 1A(2) of the Convention. That definition is as follows. A refugee is a 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, is unable or, owing to such fear, is unwilling to return to it." 4 I shall deal separately with each of the two arguments. Bringing LTTE funds to Colombo 5 The first matter put on behalf of the applicant is (as it was before the Tribunal) that he had been forced to carry a parcel of money raised on behalf of contacts within the Liberation Tigers of Tamil Eelam ("the LTTE") and hand it to LTTE personnel in Colombo. The applicant said that he had taken the money to Colombo and, although the applicant did not and could not know, it was his case that he believed that the person to whom he gave money which was then taken to Colombo had been either arrested and tortured or, in an act of revenge against him, had informed on him to the authorities. The Tribunal dealt with this claim, as follows, in its reasons. 6 First, it noted the applicant's claim that he believed that he had been identified as an LTTE activist by the Sri Lankan authorities and was suspected of raising and transferring funds to the LTTE. The Tribunal noted also that it had put to the applicant that: "this suspicion that the authorities have that overseas Tamils generally raise money for the LTTE does not seem to lead to widespread arrest of returning Tamils." It dealt with an incident in 1993 when the applicant had returned to the United Arab Emirates ("UAE"), was rounded up at checkpoints and had had what the Tribunal referred to as "serious trouble". 7 The Tribunal noted further that before coming to Australia in 1996, rather than going to Sri Lanka, the applicant said he carried a package containing money into Sri Lanka which he had been given by an LTTE fundraiser in UAE. Under the heading "Findings and Reasons" the Tribunal said: "I note that the Applicant states he was forced to carry a parcel of money from UAE to LTTE contacts in Colombo, and that as soon as he handed over this money the LTTE reported him to the police as he was perceived by them as an opponent or threat. It is a little surprising that the LTTE would entrust the transfer of a parcel of money to someone they doubted was loyal. It is also surprising that after a successful transfer they would then conclude that the courier was an opponent or threat and report him to the police. I found the Applicant's evidence on this point illogical and unconvincing. I am not satisfied the Applicant transferred money to the LTTE or that the LTTE reported to the police that he did so." 8 Subsequently, the Tribunal Member made it clear, if it was not already clear, that he was not satisfied that the applicant was suspected of assisting the LTTE at all by transferring money or for any other reason. The Tribunal's decision on this matter is said to be inadequate in that it did not deal with the case which the applicant had put in the manner I have foreshadowed. 9 For present purposes, it can be accepted that failure on the part of the Tribunal properly to consider an argument brought by an applicant would represent a constructive failure on the part of the Tribunal to deal with a matter. One further general comment should perhaps also be made. It is clear that the Tribunal's reasons should not be subjected to overly technical analysis. 10 It seems to me that the Tribunal, for the reasons it described as "illogical and unconvincing" did not accept that the applicant transferred money for the LTTE or that the LTTE reported to the police that he did so. As I have said, that factual finding was said to arise because the applicant's evidence was "illogical and unconvincing". The difficulty I have is that once there was a finding that the applicant did not transfer money to the LTTE emanating from the UAE, it is difficult to see that it is necessary for the Tribunal to go that step further and find that, thereafter, either the person to whom the money was given was arrested and notified the authorities of the applicant's name or, as a matter of spite, gave the name to the authorities. Neither of those two possibilities could arise unless the money in question had reached Colombo. The Tribunal's finding that it did not makes the other matters irrelevant, particularly where its finding that the applicant's evidence on the point was unconvincing depends not merely on what the applicant said but the applicant's demeanour in saying it. 11 Matters of fact are ultimately not for this Court, they are for the Tribunal to determine. A failure to decide particular factual matters which on the facts as found could not arise cannot be a constructive failure to exercise jurisdiction. The extortion point 12 I have found the second issue rather more difficult. It is clear enough that the applicant's case was expressed to involve extortion. The applicant, in a letter (undated) addressed to "The Director, Onshore Refugee Operations", through his solicitors, referred in that letter to the threat of extortion from the LTTE as relevant to the claim he was making for a protection visa. It was certainly his case that while in the UAE a representative of the LTTE had demanded 100,000 riyals from him to be delivered in Colombo and that he collect further funds in the UAE from Tamil expatriates. He says he was, also, at the time, required to donate personally 500,000 riyals because his attitude towards Tamils was unacceptable and showed no sympathy or patriotism. The applicant said that he paid the donation required of him of 500,000 riyals. 13 In the final paragraph of that same submission the applicant claimed to have been victimised not only by the Sri Lankan police and authorities but also by the LTTE and based his application for being properly regarded as a refugee on that basis. The matter did not seem to engage a great deal of attention at the time of the hearing before the Tribunal. A copy of the transcript has been put in evidence through the applicant's solicitor in an affidavit. 14 In the transcript the applicant noted that the Tamil population overseas was perceived as fundraisers and that it was difficult to avoid having to give money to the LTTE while living outside of Sri Lanka. The Tribunal Member noted in his verbal comments in that transcript that the government did not arrest people who had been working overseas when they returned on the basis of suspicion of giving funds to the LTTE. This was disputed by the applicant who claimed he had been arrested in 1993, not long after the events involving the assassination of Rajiv Gandhi. 15 Some reference to extortion occurred again later in the transcript. At that stage, the applicant gave evidence that he came from a family in Sri Lanka with a big house in Colombo. His evidence was that over the years very many Tamils had been killed in Sri Lanka if they did not cooperate with the security forces or the LTTE. Indeed, as the applicant said: "... if they don't give money they're shot dead". In that part of the transcript, which reflects the last few minutes of the hearing, the applicant said to the learned Tribunal Member: "So, these guys [presumably the LTTE], you know, I'm scared of these guys, most of them, even in Australia I, you know, I don't have very much friends at all ...." 16 Finally, it may be noted that the applicant after the hearing delivered a letter dated 15 January 2000 which is also in evidence. In that letter, the applicant said: "Certain arrest, persecution and torture and extortion await a young Tamil male returning to Colombo now ... The situation in Sri Lanka has not improved for the last ten years ... The educated Tamils like myself are very vulnerable to LTTE. I will be targeted for extortion and arrest and detention by the security forces." 17 It is common ground that there is nothing in the Tribunal's reasons that mentions the extortion claim. The issue in the present application is whether, on the basis of the material I have just summarised, it can fairly be said that the applicant raised a claim that if required to return to Sri Lanka he would have a well-founded fear of being extorted, that being treated as persecution, on the basis of his ethnicity, namely being a Tamil and in circumstances where the government of Sri Lanka would be unable or unwilling to put an end to the persecution he said he feared. 18 The Tribunal noted that the applicant believed that he was at risk of harm from the LTTE "because they believe that he has betrayed them". The Tribunal noted that: "It was put to the Applicant hat [sic] there did not seem to be evidence that Tamils in Colombo, who were from Colombo, who had a home to go to there, and who could establish they had good reason to be in Colombo were at any particular risk of harm." In the applicant's case he was born in Colombo, his family has a big house there and nothing in particular had happened to him subject to arrest in respect of the events immediately following Rajiv Gandhi's assassination and the confiscation of his passport. 19 I must bear in mind, as the High Court has instructed, that the reasons of the Tribunal should not be examined over-zealously with a view to finding error. For the applicant to succeed in the present case it has to be clear that the submission was clearly raised, that the Tribunal failed to deal with it and that the submission was not one upon which it was impossible to succeed. 20 It is obvious from the passages that I have referred to that the applicant mentioned the word "extortion". Certainly, a deal of the evidence concerned extortion outside Sri Lanka, namely in UAE or Australia. But a case that the applicant had been the subject of extortion in UAE or Australia would hardly prove that the applicant had a well-founded fear of extortion occurring to him in Sri Lanka. It is also clear that, in an appropriate case, extortion could constitute persecution and could be for a Convention reason which, assuming that the state was unable or unwilling to take action, might entitle an applicant to be found to be a refugee within the definition and thus a person to whom Australia would have protection obligations. 21 The manner in which the applicant brought up this matter is really quite confusing when one looks at the material. The question I have to ask myself is whether, despite the confusion, the applicant made it clear that the case he wished to put was that he would have a well-founded fear of persecution for a Convention reason in Sri Lanka should he return there because he would be extorted by the LTTE in circumstances in which the government would be unable or unwilling to take action to protect him. 22 While I have some misgivings that the Tribunal did not even use the word "extortion", one thing seems to have been clear to the Tribunal. That is that Tamils in Colombo who were from Colombo and had a home to go to there and who could establish they had good reason to be there, were not at any particular risk of harm. If, indeed, evidence was sought to be given and relied upon that persons in the position of the applicant who returned to Colombo were subject to extortion for a Convention reason (and I have searched in vain for some suggestion that that really was the case) the passage to which I have referred in the reasons might possibly be taken as an answer to it. Given the Tribunal's findings that the applicant had not transferred money for the LTTE, that his identity documents had not been confiscated, that he was not suspected of assisting the LTTE by transferring money for any other reason and that there was no support for the conclusion that all overseas Tamils were subject to arrest and mistreatment if suspected of raising and transferring funds to the LTTE, all those matters can be put to one side. 23 As I have indicated I do not think it is easy. The applicant's claim was confusing. Although the applicant mentioned extortion, he failed to distinguish between the extortion in UAE on the one hand and extortion in Colombo on the other. It seems to me, on balance, unfair to criticise the Tribunal for failing to deal with a point which hardly seems at the forefront of the applicant's case and particularly given its finding that there was no likelihood of harm occurring to him if he, in fact, returned to Colombo. 24 I do not think that the applicant has made out a case that the Tribunal has constructively refused to exercise its jurisdiction and deal with the extortion case that is said to have been put. In these circumstances, I would dismiss the application. 25 The applicant is to pay the Minister's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 24 November 2000 Counsel for the Applicant: C Colborne Solicitor for the Applicant: Craddock Murray & Neumann Counsel for the Respondent: V Harstein Solicitor for the Respondent: Sparke Helmore Date of Hearing: 24 November 2000 Date of Judgment: 24 November 2000