R D NICHOLSON J:
11 The appellant appeals against a judgment dismissing her application for review of a decision of the Refugee Review Tribunal. The Tribunal affirmed the decision of a delegate of the respondent not to grant protection visas to the appellant and her husband and their two children.
12 The appellant's circumstances were succinctly stated by the primary judge as follows. She and her husband are Tamils from the northern province of Sri Lanka. They were married in 1984. The day following their marriage they were detained, questioned and mistreated by members of the Sri Lankan Army because of their suspected association with the LTTE. In October 1984 the appellant's husband left Sri Lanka and went to Singapore. In October 1985 the appellant left Sri Lanka and joined her husband in Singapore. Shortly after that they moved to India. The husband has returned to Sri Lanka on a number of occasions - in 1988, 1990, 1991 (twice), 1992 (twice), 1994 and 1995. The appellant returned to Sri Lanka in 1988, at least once between 1988 and 1995, and in October 1995.
13 The Tribunal was satisfied that the returns by the appellant and her husband to Sri Lanka demonstrated that at the time of those returns they did not have a relevant subjective fear for the purpose of the Refugees Convention. It also made adverse findings as to the credibility of the appellant and her husband. It found the appellant had embellished her account of her last visit in 1995 in order to enhance her claims for refugee status to remain in Australia.
14 The claims which the appellant had made were, firstly, that a few days after their return to Colombo on the last occasion, the police had come and checked houses and she was questioned because she had not registered with the police as required. The Tribunal did not accept this went beyond a routine check and questioning and did not accept she was threatened or mistreated on that occasion. Secondly, she claimed that soon after that return the LTTE had demanded five hundred thousand rupees and said that if the money was not paid they would take her daughter (then aged 9 years) for their Youth Forces.
15 Despite its generally adverse conclusions in relation to the appellant's credibility, the Tribunal accepted as plausible that she had experienced LTTE demands for money soon after her return from overseas in 1995. The reasons of the Tribunal in this respect read:
"However, the Tribunal accepts as plausible that she did experience LTTE demands for money soon after she returned from overseas in 1995 - there is ample anecdotal evidence (including in accounts set out in Tribunal decisions) concerning extortion and demands for persons returning from overseas to LTTE-controlled areas. This was also documented in 1992 by the Research Directorate of the Immigration and Refugee Board of Canada, Sri Lanka: Internal Flight Alternatives 1992, which noted:
"… the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion since there is a perception among LTTE and government security forces that people who have been abroad will have saved a great deal of money."
The available information leads to a conclusion that some people who are wealthy or perceived to be wealthy are the targets of extortion, regardless of race, religion, nationality or political opinion. The Tribunal concludes that the Applicants were targeted for financial demands because, living and working overseas, they were perceived to be wealthy and not because they are Tamils or a punishment for matters going back more than ten years. (Indeed, if the LTTE believed the Applicants to have betrayed them by giving information to the security forces, everything that is known about the LTTE suggests they would have taken more serious retribution against the Applicant wife than demands for money.) The Tribunal is satisfied that in such circumstances those people subject to such demands are not a particular social group for the purposes of the Convention.
The Tribunal is not satisfied that these demands, or any other adverse attention by the LTTE in relation to the Applicant and his wife, were motivated for any Convention reason or that any feared future harm on return for not having paid the money demanded is motivated by a Convention reason."
Extortion Issue
16 For the appellant it is contended that there are two bases for finding the primary judge erred in not finding reviewable error of law in these reasons of the Tribunal relating to extortion. The first is that there was a failure by the Tribunal to comply with s 430(1)(d) of the Migration Act 1958 (Cth) ("the Act") in that it did not refer to the evidence or other material on which the findings of fact were based so there was reviewable error pursuant to s 476(1)(a) of the Act. Alternatively, it is contended that if the sources upon which the Tribunal relied to reach its view on this issue were ambiguous, its reasoning was nevertheless in error of law because it did not explain why it made one available finding rather than another: Alphonsus v Minister for Immigration & Multicultural Affairs [1999] FCA 289 par 37.
17 The passage quoted discloses reliance by the Tribunal upon three evidentiary sources, namely (1) anecdotal evidence; (2) accounts set out in Tribunal decisions; and (3) the Internal Flight Alternatives document. As the reasons of the trial judge state, there is no description by the Tribunal of either of categories (1) or (2).
18 The third category is the document which addresses relatively safe places in the south and centre of Sri Lanka for Tamils fleeing the violence in the north and east. Section 2.1 of the paper includes the following:
"Several sources indicate that the LTTE often use extortion to gain funds and services from Tamils and others in the north and elsewhere. An LTTE minimum tax of two gold sovereigns (about CDN$300) per family has been reported, with those unable to pay allegedly facing imprisonment or being told to send a son or daughter to the LTTE army instead…Malcolm Rogers of the Sri Lanka Project based at the British Refugee Council states that Tamils returning from abroad are at particular risk of extortion, since there is a perception among the LTTE and the government security forces that people who have been abroad will have saved a great deal of money…" (Emphasis added)
19 I agree with the trial judge that the failure by the Tribunal to identify the anecdotal evidence in the Tribunal decisions does not give rise to a reviewable error under s 430(1)(d) of the Act. His reason for so concluding was that the finding in question is that the appellant experienced LTTE demands for money soon after she returned from overseas in 1995. That was a finding based upon the appellant's evidence to that effect. It is not based upon the anecdotal evidence or the Tribunal decisions, which, as the primary judge stated, only served to explain why the Tribunal was prepared to accept the applicant's evidence in this respect when generally it was not prepared to do so.
20 In relation to the alternative argument for error of law, it is said that there is ambiguity or obscurity in the Internal Flight Alternatives document in that it is not clear whether it is referable to people returning from abroad in general or Tamils returning from abroad in particular. The passage quoted by the Tribunal states Tamils are at "particular" risk. That passage however, when seen in the context of the above quoted extract from s 2.1, follows a reference to "Tamils and others".
21 There can be no doubt that the resolution of the posited ambiguity was material. In Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 at 282 Burchett and Lee JJ recognised that 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.
22 On this point the primary judge took the view that the reference by the Tribunal to Tamils returning from abroad being at risk of extortion in "particular" was to be read as a contrast with Tamils who had not been abroad. He therefore considered the Tribunal was justified in coming to the conclusion that the appellant and her husband were targeted for financial demands because, living and working overseas, they were perceived to be wealthy rather than because they were Tamils. He therefore considered the case was akin to Santhikumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1777 rather than Alphonsus.
23 In my view the primary judge was correct. The reference to the Internal Flight Alternatives document satisfies the obligation to refer to material of which the conclusion was based in that it stated that "there is a perception among the LTTE and government security forces that people who have been abroad will have saved a great deal of money". That is a general perception, not confined to persons of Tamil ethnicity although putting them at "particular" risk. This was not therefore a case where there was an ambiguity in the passage relied upon.
24 Furthermore, the decision in Alphonsus was a decision of a single judge handed down prior to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 where the Full Court addressed the content of the obligation under s 430. It accepted there is no specific requirement in the section for a tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. Whether a question of fact is material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision.
25 It is clear from the same reasons that the reasoning process which a tribunal adopts may require a decision on a question of fact in order to complete the logical chain that the tribunal has adopted as the basis for its decision. Failure to set its findings in relation to that fact would involve a contravention of s 430(1)(c). Additionally, it is clear that the requirement to set out findings on material questions of fact and to refer to the material on which the findings are based is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with.
26 In my opinion this reasoning of the Full Court does not require a literal application of the words relied upon for the appellant in Alphonsus. The Tribunal made a finding on the material question of fact, namely who were perceived to be the targets of extortion. It based that conclusion on the available information, the clear inference being that it favoured the view of that information which it incorporated in its finding. It was not required to give reasons for rejecting or attaching no weight to the evidence or other material which would tend to undermine any finding it made. It follows that I do not consider that any reviewable error is made out in this respect under s 430 and s 476(1)(a) or under s 476(1)(e).
27 I have had the advantage of reading in draft the reasons of Tamberlin J. He refers to the passage in the reasons of the majority in Singh at par [48] in which it is stated that, inter alia, s 430 calls for a recording of "the actual reasons of coming to that decision." Prior to the Tribunal's quotation of the statement of the British Refugee Council (quoted above and by Tamberlin J) the Tribunal referred to the anecdotal evidence on which it relied, including accounts in Tribunal decisions. The reference to the Internal Flight Alternatives document was additional. When the Tribunal went on to state "the effect of the available information" which led to its conclusion, it was giving its reasons for its conclusion, namely it relied on those sources. In my view there was no relevant failure to give reasons. The duty to give reasons is not to be read as itself being the source of the obligation to state the material on which findings are based. What is required is that a tribunal disclose its reasoning process and that the Tribunal has done. As was said in Singh at 484 par [62] "fundamentally the reasons need to reveal to the parties why the decision went the way it did". I consider these reasons did just that. For reasons given above I consider the Tribunal additionally discharged the obligation to state the material on which its findings in that respect was based.
28 There is a further aspect to the extortion argument. It is submitted that if the LTTE's threat to forcibly abduct children for their Youth Force was a threat made only to Tamil families, then the appellant should have been found to be a member of a particular social group. It is submitted that the Tribunal's failure to address this matter prior to concluding that the appellant was not a member of a particular social group gives rise to reviewable error under s 430(1) and s 476(1)(a) of the Act or s 476(1)(e) of the Act. The particular social group contended for was that of Tamils.
29 In its reasons the Tribunal said there was no suggestion in the statements by the appellant that there had been any difficulties with the LTTE until the incident described in October 1995, being that in which the threat in relation to the daughter was alleged to occur. It said:
"The Tribunal is aware that the LTTE recruited actively in the areas it controlled and that (as reflected in the evidence of both Applicants) it took the view that each family should provide a fighter for its forces. This forced recruitment occurred regardless of the expressed or imputed political opinions of the Tamil youths concerned and was not a measure motivated to harm the Tamil youths concerned for any Convention reason."
It is submitted for the appellant that the clear implication of this is that the possible recruitment of the daughter complained of by the appellant was recruitment which applied only to "Tamil youths".
30 The primary judge dealt with the issue on the basis that if the accompanying threat in relation to the daughter called into correctness the finding that the financial demands made of the mother were not for a Convention reason, on the assumption such a threat would not be made unless the family were Tamils, that did not rise above the making of an erroneous factual finding on the part of the Tribunal which is not itself a ground of review.
31 The issue as now pressed was not put in that way to the Tribunal. It was not, therefore, then a material fact which the Tribunal was required to address.
32 Given the way that the issue arose before the Tribunal and the absence of evidence on the point it cannot be said that the Tribunal's approach to this aspect gave rise to a reviewable error in either of the two claimed ways.