THE APPEAL
16 The notice of appeal claimed that the Federal Magistrate fell into error in relation to each of the three incidents. In relation to the Karuna group extortion incident, it was contended in substance that the Federal Magistrate fell into error in not finding that the Tribunal had not addressed the appellant's claim to be a refugee on the basis that he had been persecuted because he was a member of a particular social group namely Muslim businessmen in Sri Lanka and that the Tribunal had erred in finding that the extortion was directed at the appellant because of his personal wealth, in respect of which finding there was no evidence.
17 In relation to the protest incident, it was contended that the Federal Magistrate erred in finding that it was open to the Tribunal to reject the appellant's explanations on the grounds of vagueness and that the Federal Magistrate should have found that the Tribunal should have clarified any aspects of the appellant's claims or evidence which it considered to be vague or implausible.
18 In relation to the Negombo incident, it was contended that the Federal Magistrate erred in finding that the Tribunal's findings in relation to this incident was open to it on the material before it and the Tribunal made no jurisdictional error in the manner in which it dealt with the application.
19 At the hearing of the appeal the appellant developed the Karuna group extortion incident ground and submitted that the appellant had claimed before the Tribunal that he had been persecuted on the ground that he was a Muslim businessman. It was submitted that the social group which was the subject of persecution was Muslim businessmen but the Tribunal proceeded on the basis that the appellant's claim of persecution was based upon his membership of a particular social group "namely businessmen in Sri Lanka". The Federal Magistrate considered that this description by the Tribunal was wrong.
20 The appellant submitted that the Tribunal would fall into jurisdictional error if it did not assess the appellant's claim as it was presented to the Tribunal. The appellant relied on the observations of Lander J in SZBJH v Minister for Immigration and Citizenship [2008] FCA 501, particular at [40]‑[42]. As Lander J pointed out at [40]:
"… The appellant claimed refugee status by reason of being a member of a particular social group. He was entitled to have his application assessed as against that claim, not as against some other claim."
I would, with respect, adopt and follow and apply that observation. But in order to find jurisdictional error in respect of the particular social group identified by the Tribunal it is necessary to determine what was the appellant's claim and evidence as to his membership of a particular social group. The Federal Magistrate said at [26]:
"The applicant had never articulated a social group of which he was said to be a member and therefore at risk of persecution."
In my opinion, that observation is correct. I have read the transcript of the hearing before the Tribunal and in the context of the first ground of appeal, the relevant passages are found at pp7 and 8 of the transcript. The appellant's answers to the questions put to him by the Tribunal are set out in par [18] of the reasons for judgment of the Federal Magistrate.
21 Although the appellant did not articulate a specific or particular social group of which he claimed to be a member it was appropriate for the Tribunal to determine whether it could distil out of the appellant's claims and evidence a particular social group of which he was a member which was the subject of persecution. The Federal Magistrate was correct in par [20] of his reasons when he said that the appellant did not say that he was a member of a social group "businessman in Sri Lanka". The key to the appellant's claim in relation to the Karuna group extortion incident is found in his answer to the Tribunal that:
"The main purpose that they abducted me was because I am a Muslim and they didn't like the Muslim person growing his business in that area".
22 The Tribunal found that the appellant:
"… Has not been targeted in the past and that he would not be targeted in the reasonably foreseeable future for the essential and significant reason … of his race, religion or his membership of a particular social group, namely businessmen in Sri Lanka, or his political opinion. The Tribunal finds that the extortion was directed at the applicant based on a perception of the applicant's person [sic] wealth and aimed at him individually".
It can therefore be seen that the Tribunal found in relation to the Karuna group extortion incident that there was material before the Tribunal upon which it was open to the Tribunal to make these findings. Although the Tribunal may have been in error in identifying the particular social group as it did, it made a specific finding that the appellant had not been persecuted by reason of his religion, that is to say because he was a Muslim. These findings were responses by the Tribunal to the claims made by the appellant.
23 The Federal Magistrate did not err either jurisdictionally or otherwise when he said at par [25]:
"It follows that the Tribunal did not fall into jurisdictional error in dealing with the issue of the Karuna extortion in the way that it did, albeit that the Tribunal's articulation of a particular social group did not accurately reflect the Applicant's claim".
Further, the Federal Magistrate did not fall into error when he said at par [23] that the claims made by the appellant in his evidence referred to in par [13] were "as a matter of analysis, simply claims that as a Muslim, he faced prejudice".
24 I consider that the Tribunal assessed the appellant's application against the claims he made albeit that it also considered a claim which he did not make, namely one based on membership of a social group being businessmen in Sri Lanka. What is relevant is that the Tribunal specifically referred to and addressed the claim of the appellant that he had been persecuted and feared persecution in the future by reason of the fact that he was a Muslim.
25 Consistently with the principles enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 19 and SZBJH v Minister for Immigration and Citizenship (supra) at [40]‑[42] the Tribunal responded to, and dealt with, the claims which the appellant had articulated and which also arose on the materials before it.
26 Even if the Tribunal had addressed the question whether the appellant was a member of a social group, namely Muslim businessmen in Sri Lanka, its reasoning discloses that it would have rejected that claim having regard to its findings that the appellant had not been targeted in the past and would not be targeted in the reasonably foreseeable future for the reason of his race or his religion or his political opinion and that the extortion was directed at him based on a perception of his personal wealth and aimed at him individually in respect of which there was material upon which it was open to the Tribunal to make these findings: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394‑395.
27 The ground of appeal based upon the Negombo incident does not disclose, in its terms, any jurisdictional error. In substance it challenges the Tribunal's fact finding process and conclusions. At the hearing of the appeal the appellant developed this ground by submitting that there was a constructive non‑exercise of jurisdiction in that the Tribunal failed to consider the appellant's claim and instead looked at the Negombo incident in isolation. In short, the appellant submitted that the Tribunal did not address the substance of the appellant's case in relation to this incident. I reject that submission. The Tribunal articulated clearly the circumstances out of which the appellant's claim in relation to this incident arose. The appellant submitted that the Tribunal did not consider the incident in the context of the appellant's claim to be a refugee. That is not a correct analysis of the Tribunal's reasoning. In its reasoning, the Tribunal set out in some detail the claims made by the appellant in relation to this incident. The Tribunal also canvassed the incident with the appellant in the hearing as the transcript discloses. The Tribunal did not accept the appellant's evidence as to the circumstances involved with the incident as credible and did not accept his evidence. It was open to the Tribunal so to find on the material before it. The Tribunal then reasoned that even if it were to accept all the claims made by the appellant in relation to this incident it found that there was not an instance of "Convention persecution" since the appellant was detained as part of a sweep of the area following an explosion and was not targeted specifically, nor for any Convention reason.
28 The Federal Magistrate found that the claim in relation to this incident fell squarely within the area of merits of review, and in my opinion, the Federal Magistrate did not err.
29 The ground of appeal in relation to the protest march incident is predicated on the Tribunal's finding that it did not accept the appellant's claims in relation to this incident because of "the vagueness and implausibility" of the claim. The appellant submitted that this disclosed jurisdictional error because it was open to the Tribunal to clarify the claims which were vague and implausible according to it which it failed to undertake. The Tribunal explained in its reasons specifically why it did not accept the appellant's evidence and claims in relation to this incident. It was open to the Tribunal on the material before it to find that it did not accept those claims. Further, I am satisfied, as was the Federal Magistrate, that a reading of the transcript of the hearing in relation to the Tribunal's questioning and the appellant's answers in relation to this incident demonstrates that the Tribunal explored with the appellant aspects of the claims in relation to this incident which troubled the Tribunal.
30 The reasoning of the Tribunal and the reasoning of the Federal Magistrate did not disclose any jurisdictional error in relation to the Tribunal's findings and the Federal Magistrate's conclusion in relation to this incident.
31 The appeal should be dismissed with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.