Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820

FEDERAL COURT OF AUSTRALIA

Applicant M153 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 820 Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42 affirmed Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 considered SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 applied VWAL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 266 applied SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 mentioned

APPLICANT M153 OF 2004 and ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 125 OF 2006

SUNDBERG J 30 JUNE 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 125 OF 2006

BETWEEN: APPLICANT M153 OF 2004 and ORS

Appellants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SUNDBERG J

DATE OF ORDER: 30 JUNE 2006

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the first respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 125 OF 2006

BETWEEN: APPLICANT M153 OF 2004 and ORS

Appellants

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SUNDBERG J

DATE: 30 JUNE 2006

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 The Refugee Review Tribunal affirmed the decision of a delegate of the respondent not to grant the appellants protection visas. An application for review of that decision was dismissed by the Federal Magistrates Court: Applicant M153 of 2004 v Minister for Immigration [2006] FMCA 42. This is an appeal from that decision. Pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 the appeal is to be heard by a single judge. 2 The background facts and the first appellant's claims are set out in the Magistrate's decision, and in more detail in the Tribunal's reasons. The second, third and fourth appellants are the first appellant's wife and children. Their claims are dependent on his. I will refer hereafter to "the appellant" alone. FIRST GROUND OF APPEAL 3 There are three grounds of appeal. The first is that the Magistrate erred in finding that the Tribunal "did not fail to consider that the basis of the appellant's fear of extortion by the LTTE was a Convention related reason". The contention before the Magistrate was that in respect of the appellant's claim that he feared that the LTTE would seek to extort money from him upon his return to Sri Lanka, the Tribunal failed to consider that his claim was that extortion would be by reason of his Tamil ethnicity. It was also said that the Tribunal failed to consider whether such extortion would be by reason of the appellant's membership of a particular social group, namely Tamils returning to Sri Lanka from overseas or Tamils perceived to have money. 4 The appellant relies on the following passage from the Tribunal's reasons to support this ground: "The applicant is concerned that the LTTE will seek to extort money from him upon return because he would be thought to have money given that he has worked abroad for so long. There has been no such approach to him in the past but if this were to occur I do not consider that the evidence indicates that it would be anything other than an opportunistic grab for money. What the applicant seems to me to fear is analogous with the circumstances described in Ram v MIEA (1995) 57 FCR 565. In his judgment (at 569‑570) Burchett J stated: Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual …. [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually. I do not consider that the evidence about the appellant's circumstances indicates that there is a real chance that the applicant's race, religion, nationality, membership of a particular social group or his actual or imputed political opinion would be the essential or significant reason for any extortion demands which he may face upon return from the LTTE, rather the essential and significant reason for such treatment would be his perceived possession of money. Consequently such treatment does not constitute persecution within the meaning of the Refugees Convention." 5 It is true that in that passage the Tribunal does not say that the claim was that the appellant feared extortion because he was Tamil. However, a reading of the Tribunal's reasons as a whole makes it perfectly clear that that was the claim it was addressing. 6 The appellant's whole case for a protection visa was founded on his Tamil ethnicity. Under the heading "The Applicants' Claims" the Tribunal recorded claims that · the appellant was a male of Tamil ethnicity, · the LTTE had details of all Sri Lankan Tamils living in Sri Lanka and in foreign countries · the Army was reported to be killing Tamil civilians. It also recorded that · it had raised with the appellant information indicating that Tamils were subjected to less checking than before · the appellant's adviser at the first Tribunal hearing submitted that the appellant faced persecution because he is a Tamil from Jaffna · in a submission to the current Tribunal it was put that LTTE cadres were abducting Tamil youths and extorting money from Tamils, that as a Jaffna Tamil the appellant would not be able to live in any Sinhalese areas, and that more than a hundred young Tamils had been taken in for questioning and thirteen of them were arrested. It is clear from the foregoing that all these claims are related to the appellant's fears based on his Tamil ethnicity. 7 The Tribunal then examined numerous items of country information, including material submitted by the appellant, relating to mistreatment of Tamils in Sri Lanka and the improving position of Tamils there. This reinforces the view that the Tribunal's attention was specifically directed to fears held by the appellant based on his Tamil ethnicity. 8 Immediately after its exposition of the country information, the Tribunal introduced its "Findings and Reasons" with the words "the applicant is of Tamil ethnicity". 9 The Tribunal had before it a submission from the appellant's solicitors which contained these passages: "The Applicant states that it is well known that LTTE cadre had infiltrated in Colombo Metropolitan and are engaged in abduction of Tamil youths and extortion from Tamil people are continuing. The Applicant fears that he would be definitely abducted by the LTTE if he returns back and stayed in Colombo. According to DAFT CX 82735 the LTTE activities include 'child recruitment, hostage taking and extortion …. Its child recruitment activities which according to UNICEF are ongoing in all areas of the north and east, are limited to Tamils and include retaliation activities in which family members are abducted as substitutes for children who refuse to join the LTTE. There are also reports that the LTTE has increased its harassment and extortion activities against Tamils in Colombo in recent months." It was thus aware that the appellant claimed to fear extortion by reason of his being a Tamil. 10 The Tribunal's ultimate conclusion, at the end of its reasons, is that there is no real chance of serious harm amounting to persecution "because he is Tamil" or "because of any associated real or imputed political opinion". 11 The Tribunal's statement (recorded at [4]) that it did not consider the extortion would be anything other than an opportunistic grab for money, in the context recorded at [6] to [10], is to be understood as a rejection of the reason the appellant advanced for the extortion, namely that he is a Tamil. The reference to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 is unexceptionable. There it was claimed that the appellant was a member of a class of wealthy Sikhs who were liable to extortion. The Full Court held that because the extortion was not based on membership of that class but purely on opportunism, there was no Convention basis. That is what Burchett J said at 569‑570. The Tribunal was saying that just as in Ram the extortion was not because the appellant was a wealthy Sikh, so in this case it was not because the appellant was a Tamil. In each case the extortion was opportunistic. 12 It was not put to the Tribunal that the appellant was a member of a particular social group. However the Tribunal did say it was not satisfied that there was a real chance that the appellant's membership of a particular social group would be the essential and significant reason for any extortion demands. The appellant did make social group claims before the Magistrate. For the reasons his Honour gave in connection with the appellant's Tamil ethnicity, the social group claim, based as it was on Tamil ethnicity (see [3]), had to fail. See pars 20 to 22 of the Magistrate's reasons. 13 The Tribunal did not fail to address the case put by the appellant. The Magistrate did not err in so holding.