14 The Burgher ethnicity of the applicant and his wife was referred to by the RRT materially in the following contexts:
· Burghers were unlikely to be of interest to the authorities.
· Burghers would be unlikely to be imputed with an LTTE profile, even less so than Sinhalese.
· according to "the country information", "the prospect of a Burgher assisting the LTTE is generally considered to be amusing".
· Tamils may encounter difficulties with police refusing to assist them but "there is no evidence that this applies to Singhalese (sic) or Burghers", according to advice from the Department of Foreign Affairs and Trade ("DFAT").
· DFAT cables were relied upon by the RRT to find that "it is inherently unlikely that Burghers would be accused of assisting the LTTE".
· Burghers in general do not suffer serious discrimination in Sri Lanka.
· Burghers "are a diminishing minority and are rarely involved in the struggles between Tamils and Singhelese (sic) or between political parties in Sri Lanka".
· The applicant and his wife "do not face a real chance of persecution for reasons of their Burgher ethnicity".
15 It was submitted on behalf of the applicant that the RRT relied upon irrelevant material and identified a wrong issue in the sense referred to by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf and Israelian (2001) 180 ALR 1 at [82] where their Honours said:
"The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."
16 The applicant's counsel submitted that the Burgher ethnicity of the applicant and his wife was an irrelevant consideration for the RRT to take into account. It was also put that it was irrelevant that Burghers have not been of interest to the police. It was contended that the primary consideration of the RRT should have been the presence of the Tamil boarders.
17 Those submissions are rejected. There was no reason for the RRT not to take into account the ethnicity of the applicant and his wife. The submission falls at the first hurdle because the allegedly irrelevant consideration relied upon was relevant. The RRT's decision records at p 4 that the applicant and his wife "claimed they were discriminated against because they belonged to the minority Burgher group, life became difficult because of the conflict between Sinhalese and Tamils". Further the RRT did take into account the presence of the Tamil boarders. Some criticism was made of the RRT for not investigating the status of the Tamil tenants or their profile. This aspect of the claim was first focussed upon by counsel for the applicant in oral submissions today. It is yet another example of an impermissible attempt to re-canvass the merits of the RRT's decision.
18 The applicant's counsel also submitted that it was not relevant to the claim for a protection visa that the applicant and his wife delayed coming to Australia until April 1997. I see no reason to support that view given that a delayed departure which is unexplained may relate to the genuineness of the alleged fear of persecution in a country of origin.
19 The issues raised in the three preceding paragraphs essentially cavil with the RRT's fact finding and amount to a disguised attempt to seek merits review in the Court. An additional issue raised by counsel for the applicant, orally today, cavilled with the RRT's failure to accept an allegation that the applicant and his wife were visited fortnightly by authorities. The RRT was not bound to accept that evidence and its failure to accept it does not mean that it failed to take into account a relevant consideration.
20 The applicant's counsel also submitted that the RRT did not properly apply the test of "well founded fear" referred to in Art 1A(2) of the Refugees Convention. It was contended that the RRT did not engage in the "required speculation" whether there was a real chance of persecution. The error of the RRT was said to be its reliance on "the general principle" that "Burghers in general" do not suffer serious discrimination in Sri Lanka, "rather than asking whether the applicant faces a well founded fear of persecution/discrimination upon return to Sri Lanka".
21 This submission is also misplaced. The RRT did undertake the "required speculation" whether the applicant and his wife had a well founded fear of persecution (ie. a real chance of persecution) if returned to Sri Lanka. The RRT specifically found that the applicant and his wife do not face a real prospect of persecution on account of their Burgher ethnicity (see [14] above). On the question of imputed political opinion, the RRT said at p 15 that it was satisfied that "there is no real chance that the applicants will face persecution for reasons of imputed opinion for the LTTE ... ." This conclusion was not surprising having regard to the matters referred to at [11] above which were not accepted by the RRT.