The appeal to this Court
30 The appellant is not legally represented in this appeal. He originally filed a notice of appeal which contained one generalised ground. Shortly before the hearing the appellant filed an outline of submissions which incorporated two proposed substituted appeal grounds. Those grounds engaged with the decision of the primary judge. Counsel for the first respondent properly did not oppose the appeal proceeding on the basis of the substituted grounds set out in the submissions. I granted leave to amend the appeal grounds accordingly.
31 The amended grounds are to the following effect:
(a) first, that the primary judge erred in law by accepting the appellant's risk profile would be increased because of close family ties to the LTTE but then did not accept that the IAA failed to deal with risk profile;
(b) second, the IAA did not refer in its reasons to whether there was a Convention nexus in the context of the extortion claims, and so the primary judge erred in assuming there was an unspoken nexus and in saying it was 'probably a combination of perceived wealth and the [appellant's] involvement with the LTTE' and failed to properly apply the law as set out in Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111 [46]-[48].
32 The first ground in effect seeks to re-argue the first ground before the primary judge. It is clear that the IAA did take into account the effect on risk profile of the involvement of the appellant's sister with the LTTE. The complaint seeks in essence a merits review. As the summary of the findings and reasoning of the IAA above discloses, the IAA considered the treatment of the appellant (and to some extent his family) by authorities both before and after the time when they had knowledge of the sister's involvement, and also considered the relevant country information. The primary judge considered carefully the IAA's findings and reasoning on that issue. The primary judge's rejection of the appeal ground before him was correct and no error is disclosed.
33 By the second ground, the appellant contends in effect that the IAA failed to have regard to an integer of the extortion claim, being that the appellant was extorted because of his links through his sister to the LTTE.
34 The issue of potential reasons for extortion was addressed by the primary judge. His Honour referred to his previous decision in BMQ16 v Minister for Immigration [2017] FCCA 150 in which he noted that there may be a range of reasons for extortion, including ethnicity or family connection to the LTTE or perceived wealth. In that case, the IAA had rejected a claim that the appellant had been harassed by extortionists because of some imputed association with the LTTE. The IAA had not expressly considered whether the appellant was a 'soft target' for extortion because as a Tamil, he was less likely to complain or receive protection if he did. The IAA reasoned that there was a simple criminal motive for the extortion attempt. His Honour considered it did not matter in that case that the IAA did not consider each potential motive for extortion expressly because while the appellant had suffered harm in the past (for whatever reason) the governance of Sri Lanka had improved since the election in January 2015 and the lapse of time since the extortion attempt meant that it was unlikely that the appellant would be of any continuing interest to the extortionists: BMQ16 [61] - [62]. The decision was affirmed on appeal: BMQ16 v Minister for Immigration [2017] FCA 1197, and a special leave application dismissed.
35 There is no doubt that care must be taken when considering whether extortion has been practised upon a person for a Convention reason: Rajaratnam [46]. The question arises as to whether the person extorted has been selected because of a Convention reason or whether that person may have been selected because they are perceived to provide the advantage (for example, money) sought by the extorting party.
36 The appellant refers in his grounds to the court's determination in Rajaratnam at [46] and [48]. Paragraph [48] is as follows:
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.
37 The primary judge's reference to potential multiple reasons for extortion is consistent with the passage from Rajaratnam relied upon by the appellant.
38 In this case, it is clear that the IAA in fact considered the connection between the appellant, his sister and extortion. Whilst it did not use the language of 'Convention nexus' or 'Convention reasons', that is not decisive. The question is whether it had regard to such matters in the context of extortion. The IAA made a factual finding that corrupt local officials previously used the appellant's sister's martyrdom to extort the appellant (IAA Reasons [15]). It also concluded that, 'while corrupt officials have used his sister's LTTE activity against him I am not satisfied that he was subject to serious harm or that he would face a risk of such harm upon return' (IAA Reasons [41]). Whilst the IAA also found that the extortion was opportunistic extortion by corrupt officials, it cannot properly be said that it ignored or failed to give proper weight to the sister's connection with the LTTE in the context of extortion or harm. The IAA went on to consider that the appellant's circumstances did not amount to or give rise to a risk of serious or significant harm, and that is the critical finding.
39 The primary judge's comment that the reason for extortion was 'probably a combination of perceived wealth and the appellant's sister's involvement with the LTTE' must be viewed in the context of the matters at IAA Reasons [15] and [41] that I have referred to in the preceding paragraph. There was a legitimate basis for drawing such inference, taking into account that the IAA clearly had both factors in mind and made findings as to both when considering the particular circumstances of the appellant.
40 The primary judge considered there was no error established on the part of the IAA as to its treatment of the appellant's extortion claims. I agree that the IAA properly disclosed its reasoning, it took into account the connection between the appellant's sister and the LTTE and its findings were open to it on the basis of the evidence of the appellant's circumstances and the country information. In the circumstances, there is no error on the part of the primary judge established. The second appeal ground also fails.
41 For completion, I note that before me the appellant raised the factual issue of whether the arrest incident occurred in 1999 or 2006. He said that he made a mistake before the delegate and that it occurred in 2006. The delegate considered and determined that issue based on the information provided at the time. The delegate noted the appellant had ultimately clarified at the visa interview that it occurred in 1999. The IAA considered the arrest. The IAA addressed the case as clarified by the appellant before the delegate and was not in error in doing so. It was aware of the claim that it occurred in 2006 (as noted above). The primary judge considered the issue in dealing with ground 5 of the grounds before him and his reasoning does not disclose error. In light of the delegate's statement as to the appellant's clarification, there were reasonable grounds for the IAA to proceed on the basis that the arrest occurred in 1999 and not 2006. Assuming the appellant's submission to me to be a request to consider an amended or additional ground of appeal, I would decline leave on the basis that it has no real prospect of success.