Thirunavukkarasu v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the RRT"). By that decision, the RRT affirmed a decision which had been made by a delegate of the present respondent, the Minister for Immigration & Multicultural Affairs ("the delegate" and "the Minister" respectively). The delegate's decision had been that the present applicant, Mr Thirukkumar Thirunavukkarasu, who is a Sri Lankan national of Tamil ethnicity, was not entitled to the grant of a protection visa. 2 On 18 March 1996, the applicant had arrived in Australia with a student visa. On 13 August 1997, that visa had been cancelled. The applicant had then sought review of that cancellation decision by the Immigration Review Tribunal ("the IRT"). On 28 October 1997, the IRT had affirmed the student visa cancellation decision. On 27 November 1997, the applicant had lodged his protection visa application, which had been rejected by the delegate on 26 February 1998. On 17 March 1998, the applicant had lodged his application for review by the RRT of the delegate's decision, which application was, on 12 December 2000, in effect, dismissed by the RRT. 3 The applicant's application for review of the RRT's decision, as ultimately argued before me, focused on two aspects of the RRT's statement of findings and reasons: first, what the RRT had stated about the circumstances in which the applicant had left certain employment in Sri Lanka in the second half of 1993; and, secondly, what the RRT had stated about a claimed fear by the applicant that, if he were to return to Sri Lanka, he would be the victim of extortion on his arrival at Colombo airport. 4 As to the applicant's complaint concerning what the RRT had stated about the circumstances in which he had left certain employment in Sri Lanka in the second half of 1993, it is convenient to introduce my discussion of that complaint by referring to certain things stated by the applicant in his protection visa application and in a statement which he lodged together with that application. 5 In his protection visa application, the applicant stated that, from his birth in Sri Lanka in September 1970 until December 1975, he had lived in the Jaffna district, while, from January 1976 until March 1996, when he left Sri Lanka for Australia, he had lived in Colombo. He also stated that: from January 1976 to August 1989, he had attended the Hindu College Colombo; from April 1993 to September 1993, he had been employed as a software engineer by Computer Land (Pvt) Ltd in Colombo at a monthly salary of Rs 7,000; and, from September 1993 to September 1995, he had been employed as a computer programmer by the Hotel Serendib in Bentota at a monthly salary of Rs 10,000. 6 In a statement which he lodged together with his protection visa application, the applicant stated, "During the course of my employment [that is, by Computer Land] certain works were assigned to me in order to design special software systems to monitor the economy and the financial dealings of the Srilankan government with foreign countries. I was able to gather some Data regarding the exact amount of export income and foreign exchange earnings from the traditional commodities like Tea, Rubber etc. This included Data gathered from private exporters and government departments for the pre-planned projects of the Planning Ministry of SriLanka. Some of my colleagues who were at Hindu College Colombo left the school during the July 1983 communal riots, dislocated and re-settled in Jaffna. I am also a youth from Jaffna, hence I had continuous personal relationship with these colleagues even after their re-settlement in Jaffna. Some of them … joined the Libretation [sic] Tigers of Tamil Eelam (LTTE)…. Whenever they came to Colombo one Raju had also accompanied my cousin Mathi and approached me to divulge the secrets of the economic data and Software models which I gained during the course of my employment. … Raju informed me that he was on a mission to Colombo and was aiming to monitor economic targets of the government. Although I was reluctant, was forced to help due to my ethnocentrism on the basis of flashbacks of the July 1983 incidents. Some or other Raju was arrested by the security forces on the instructions of the Pro government Tamil groups EPDP [that is, the Eelam People's Democratic Party]. The EPDP came to my home in August 1993 and arrested me and detained in an un-authorised centre in Colombo. I was tortured by this group. My long absence from work made the Company to have suspicion on me and this forced me to tender my resignation on 14th August 1993." 7 Later, in a statutory declaration sworn by him on 29 November 2000 and provided by him to the RRT for the purpose of its review of the delegate's decision, the applicant, having repeated his account of having been detained and tortured by the EPDP and having referred as well to his having been released by the EPDP, then stated, "After these events I did not feel comfortable to return to work [that is, at Computer Land] as I was concerned that my having provided information to Raju might come out one day and lead to further trouble and hence I resigned my job on 14 August 1993." 8 When, in its statement of findings and reasons, the RRT was summarising the applicant's case for a protection visa, it included, in its summary of the applicant's statement lodged together with his protection visa application, the following: "[T]he Applicant … was forced to resign from his job [that is, at Computer Land] [o]n 14 August 1993 for his unexplained, prolonged absence". The RRT further included, in its summary of the applicant's statutory declaration of 29 November 2000, the following: "[H]e felt uncomfortable about returning to work [that is, at Computer Land] as the allegations might emerge there, so he resigned". 9 Then, in that part of its statement of findings and reasons in which the RRT was discussing the evidentiary material which was before it and setting out its findings on that evidentiary material, the RRT stated, "[T]he Applicant has claimed both that he was 'forced to resign' [that is, from Computer Land] because of a prolonged and unexplained absence from work and that he resigned because he did not feel comfortable returning to work after being under suspicion and sensitive to potential allegations. However, he obtained employment with another employer [that is, the Hotel Serendib] more or less immediately. If he was suspected [that is, by Computer Land] of stealing confidential information and passing it on to the LTTE it is implausible that such suspicions would not be passed on to subsequent employers…. … The Tribunal does not accept the claims that the Applicant provided information to the LTTE in his capacity as an employee at either Computer Land or the Bentota hotel [that is, the Hotel Serendib]. It is satisfied that he has contrived those stories of LTTE connections and it is equally satisfied that the Applicant voluntarily changed employment between those two places when it suited him to do so." 10 Before me, the applicant focused on the RRT's statement, in the passage which I have just quoted from its statement of findings and reasons, "If he was suspected of stealing confidential information and passing it on to the LTTE it is implausible that such suspicions would not be passed on to subsequent employers". 11 In his written submissions, the applicant identified, as a particular fact on the existence of which the RRT had based its decision, "that the applicant's employer at Computer Land suspected him of stealing confidential information and passing it on to the LTTE". The applicant then submitted that that fact did not exist, so that the requirement set out in par 476(4)(b) of the Migration Act 1958 (Cth) ("the Act") had been satisfied. The applicant further submitted, as I understood it, that, because the requirement set out in par 476(4)(b) of the Act had been satisfied, it therefore followed that he had made out the ground of review set out in par 476(1)(g) of the Act. 12 Put in the way in which I have summarised them in the preceding paragraph of these reasons for judgment, those submissions by the applicant were, of course, hopeless. It is sufficient for present purposes to point out that, far from concluding "that the applicant's employer at Computer Land suspected him of stealing confidential information and passing it on to the LTTE", it is obvious that the RRT had concluded the contrary. 13 However, it appears that, in spite of the way in which the applicant put the matter in his written submissions, the "particular fact" on which he actually wished to rely before me for the purpose of his argument based on par 476(4)(b) of the Act was that he had asserted, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE. I will therefore deal with the matter in these reasons for judgment in the way in which I take the applicant to have intended to put it, namely, that he had not, for the purpose of obtaining a protection visa, made an assertion of the type which I have just described, although the RRT had mistakenly based its decision on his having done so. 14 I have, on at least one earlier occasion, expressed my difficulty in accepting that the Parliament intended to encompass, within the notion of a "particular fact" in par 476(4)(b) of the Act, the RRT's construction of an item of evidentiary material before it (see Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 622 (9 August 1999, unreported) at [59]; an appeal from that decision was subsequently dismissed by a Full Court of this Court, although without reference to the point: see Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 (French, Heerey and Lindgren JJ, 12 November 1999, unreported)). However, other Judges of this Court do not labour under the same difficulty as I do. I am therefore prepared to proceed herein on the basis that a finding by the RRT that the applicant had asserted, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE was a finding by the RRT of a "particular fact" for the purpose of par 476(4)(b) of the Act. 15 That being so, in order for the applicant to succeed on the ground set out in par 476(1)(g) of the Act, it is necessary for him to establish each of the following three matters: first, that the particular fact to which I have referred in the preceding paragraph of these reasons for judgment did not exist; secondly, that that particular fact was one on the existence of which the RRT's decision to affirm the delegate's decision had been "based"; and, thirdly, that there had been no evidentiary material before the RRT to justify its finding that that particular fact did exist. The requirement that the applicant establish the first two of those three matters flows from par 476(4)(b) of the Act, while the requirement that the applicant establish the third of those three matters flows from par 476(1)(g) of the Act (see my discussion of the third of those three matters in my reasons for judgment in Arudselvan at [56]). 16 To deal first with the third of the three matters to which I have just referred, in my view, there had been evidentiary material before the RRT to justify its finding that the applicant had asserted, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE, namely, the applicant's statements which I have set out at [6] and [7] above. I refer in particular to the applicant's statement, in his statement lodged together with his protection visa application, that Computer Land was suspicious of him and to his statement, in his statutory declaration of 29 November 2000, that he was concerned that his having provided information to Raju might come out. 17 In my view, it was open to the RRT to construe those two statements by the applicant as an assertion by him, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE. 18 I should, at this point, record a submission before me by the Minister that, even if it had not been open to the RRT to construe that material which the applicant put before me and which had also been before the RRT as including an assertion by the applicant, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE, still, the applicant's reliance on par 476(1)(g) of the Act must fail. That was because he had not put before me a transcript of his oral evidence before the RRT at a hearing of his application for review which the RRT conducted on 29 November 2000. In my view, that submission by the Minister was correct, given both the applicant's burden of persuasion under par 476(1)(g) of the Act and the fact that it may be that, before the RRT, the applicant gave oral evidence directed to the question of the existence of the relevant suspicion on the part of Computer Land. However, given the view which I have expressed in the preceding paragraph of these reasons for judgment, it is unnecessary for me to adopt the Minister's submission which I am presently discussing. 19 The view which I have expressed in the next preceding paragraph of these reasons for judgment also makes it unnecessary for me to trouble myself about whether the applicant has established the first two of the three matters to which I have referred at [15] above. Nevertheless, I propose to say something about each of them. 20 As to the matter whether the particular fact did or did not exist, in a case in which, like the present, the particular fact relied on by an applicant for the purpose of par 476(4)(b) of the Act is the RRT's construction of an item or items of evidentiary material, the question whether that particular fact did or did not exist would, in substance, be a question whether the RRT's construction of that item or those items of evidentiary material was or was not correct. However, the giving of a separate answer to that question will never be necessary. If the RRT's construction of the item(s) of evidentiary material was one which was not open to it, then, not only has the applicant satisfied his or her burden of persuasion under par 476(1)(g) of the Act, but he or she has also necessarily satisfied his or her burden of persuasion under par 476(4)(b) of the Act of establishing that the RRT's construction of the item(s) was not correct. If, on the other hand, the RRT's construction of the item(s) of evidentiary material was one which was open to it (as in the present case), then, the applicant having failed to satisfy his or her burden of persuasion under par 476(1)(g) of the Act, it matters not whether he or she persuades the Court that the correct construction of the item(s) of evidentiary material was different from that given to it or them by the RRT. (Incidentally, the fact that it will never be necessary for the Court to determine separately the question whether the RRT's construction of an item or items of evidentiary material was or was not correct reinforces my difficulty in concluding that the Parliament intended to encompass, within the notion of a "particular fact" in par 476(4)(b) of the Act, the RRT's construction of an item or items of evidentiary material before it.) 21 I turn now to the matter whether the RRT's finding that the applicant had asserted, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE was a finding on which the RRT's decision to affirm the delegate's decision had been "based" within the meaning of par 476(4)(b) of the Act. 22 Whether a decision has been "based" on a particular factual finding depends on the criticality of that finding to the making of the decision, as was pointed out in a foundation case on provisions like par 476(4)(b) of the Act: see Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220 (Black CJ, Spender and Gummow JJ agreeing). Further, in Chopra v Minister for Immigration & Multicultural Affairs [1999] FCA 480 (Lee, Whitlam and Weinberg JJ, 23 April 1999, unreported), a Full Court of this Court said (at [64]) in unanimous reasons for judgment that, if a finding of a particular fact is "but one of a number of considerations, any one of which would have been sufficient to lead the [Refugee Review] Tribunal to refuse [an] application" for review, then that finding is not one on which the decision is based in the Curragh sense. 23 As I read the RRT's statement of findings and reasons in the present matter, the finding by it that the applicant had asserted, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE appears not to have been a finding on which the RRT's decision was based in the Curragh sense. One of the things which the RRT concluded was that the applicant was "an unreliable witness who could not be believed". The fact that, according to the RRT, the applicant had asserted, for the purpose of obtaining a protection visa, that Computer Land had suspected him of having stolen confidential information and of having passed it on to the LTTE, was presumably relied on by the RRT in reaching its conclusion that the applicant was an unreliable witness who could not be believed, but it was merely one among many such matters. (It is unnecessary for present purposes to give details of those many other matters.) The situation thus appears to me to be like that under consideration in Chopra, rather than being like that under consideration in another Full Court decision to which the applicant referred me, Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 (Kiefel, North and Mansfield JJ, 3 August 2000, unreported): see at [49] (and note that the Full Court in Rajamanikkam appears, from its reasons for judgment, not to have been referred to Chopra). I add that, to the extent to which there may be perceived to be a difference in reasoning between Chopra and Rajamanikkam (although I am uncertain that there is), I would prefer the reasoning in the former. However, given the view which I have already expressed on the third of the three matters to which I have referred at [15] above, it is unnecessary for me to express a concluded view on the matter which I am presently discussing. 24 I turn now to the second aspect of the RRT's statement of findings and reasons concerning which the applicant complained before me, namely, what the RRT had stated about a claimed fear by the applicant that, if he were to return to Sri Lanka, he would be the victim of extortion on his arrival at Colombo airport. 25 It is convenient to introduce my discussion of that part of the applicant's case before me by referring to part of the summary given by the RRT, in its statement of findings and reasons, of the applicant's case for a protection visa. 26 In that summary, the RRT stated that the applicant had set out his claims in various forms, including in written submissions of 17 September 1998 and orally at the hearing before the RRT on 29 November 2000 which I have already mentioned above, and had also submitted various materials to the RRT, including a letter of support from Amnesty International ("AI"). 27 At one point in that summary, the RRT stated, "The Applicant says it is 'common knowledge that asylum seekers returning to Sri Lanka are arrested at the airport' and provides some materials to that effect. He fears he will be detained at the airport if he returns to Sri Lanka and will also have to confess he applied for refugee status in Australia, thereby bringing himself under suspicion as to the reasons he would want to seek asylum. More particularly, he states that he has been imputed to support the LTTE not only because of his race but also because of his involvement with school friends who later became LTTE members and he fears he faces persecution for that reason at the hands of the government forces and government allies, such as the EPDP. Further, as a Tamil returning from overseas he will be taken into custody and accused of LTTE connections for the purpose of extortion." Although the RRT did not, in its summary of the applicant's case for a protection visa, identify the source of the applicant's claims which I have just quoted, I infer that it was, in part at least, the applicant's written submissions of 17 September 1998. Those submissions had stated that, if the applicant were to return to Sri Lanka, "he would have to arrive via Katunayake Airport outside Colombo, there being no other international airport in the country". Those submissions had then referred to an AI report from 1993 which had stated that "[r]eturning asylum seekers … are often held for questioning … upon their arrival at Katunayake". Those submissions had next referred to a Canadian report from 1992 which had stated that "the police extort money from Tamils who have returned from Western countries". Then, having referred to those two reports, those submissions had continued, "It is therefore likely that the applicant's circumstances would lead to a situation whereby: a. He will be at risk of detention at the airport. When the security officers realise that he has been in Australia for some time, they may well ask by what authority he stayed in Australia and he would have to say that he applied for Refugee Status. The next obvious question is as to why he had to apply for Refugee Status, and as a Tamil he may then be under suspicion because of this application. b. It would appear that as a Tamil he will be suspected of involvement with or sympathy for the LTTE, solely on the basis of his race. His previous involvement with the friends who later joined LTTE, if known to the security forces would doubtless increase their interest. That if he was required to return to Colombo, he would face a real chance of being subject to cordon and search operations of the security forces directed at Tamils. Therefore, he would find difficulty in showing any good cause for being in Colombo. Therefore, although he has contacts in Colombo, (though this did not help him in the past) his absence from the capital, and to a lesser extent, his lack of employment and the remote chance of obtaining employment place him at some risk. c. That as a Tamil who has spent a considerable period in a western country he will be of interest to the security forces as a target of extortion. As reported in Document CX 11328, The Sunday Times, 'Colombo cops in Extortion Racket' 11 June 1995 where it was stated that 'a full scale investigation into the activities of several city based policemen has been ordered by Police Chief Frank De Silva, following allegations that these officers had extorted large sums of money from Tamil detainees in return for their release. According to the sources, the suspect officers deliberately take into custody affluent Tamils living in the city, and threaten to link them with the LTTE if they refuse to pay up the demanded sum.' That whilst economic persecution by itself is not grounds for refugee status, the fact that this is possible because the applicant is a Tamil provides the requisite Convention related nexus. This increases the risk of mistreatment should he be detained and recent reports of money being sent by those overseas to support the LTTE (Sydney Morning Herald 10/2/96) also increase the risk of maltreatment in the event that he is rounded up. Furthermore, the recent reports of raids on private homes indicate that even if he did have a private place to live in Colombo is not necessarily a guarantee against arrest." 28 It is the similarity between the material which I have just quoted from the written submissions of 17 September 1998 and the material which I have quoted at the outset of the preceding paragraph of these reasons for judgment which causes me to infer that the former was, in part at least, the source of the latter. (I assume that another source of the applicant's claims which I have quoted at the outset of the preceding paragraph of these reasons for judgment was the applicant's oral evidence given at the hearing before the RRT on 29 November 2000. However, as I have already mentioned above, the applicant did not put before me a transcript of that hearing.) 29 (It is convenient to note now that, except for his complaints about the manner in which the RRT had dealt with his claimed fear that, if he were to return to Sri Lanka, he would be the victim of extortion on his arrival at Colombo airport, the applicant made no complaint about the manner in which the RRT had dealt with that part of his written submissions of 17 September 1998 which I have set out above. In particular, the applicant made no complaint about the manner in which the RRT had dealt with that part of his written submissions of 17 September 1998 in which he had claimed a fear of being persecuted on his arrival at Colombo airport because he had unsuccessfully sought asylum in Australia.) 30 I turn now to the AI letter of support to which I have already referred above. That letter had referred to the arrest on their arrival at Colombo airport in 1998 of a number of returning unsuccessful asylum-seekers. The ground of their arrest had been suspicion of having left Sri Lanka on forged documents in order to collect money for the LTTE. The AI letter had then referred to the existence of an assumption (no doubt, by the authorities at Colombo airport was meant) that returned unsuccessful asylum-seekers "have left the country illegally" and had then stated that: "… under the law, once accused[,] it is up to them to prove they leftlegally. Worse still, there is an assumption that they will have been fundraising for, or at least contributing to, LTTE funds. … Finally, it is certainly assumed that returned asylum-seekers are returning with a lot of money, or at least access to a lot of money. Given the culture of bribery among security officials, this latter factor considerably increases the likelihood of them being detained. Amnesty International has received reports which we have not yet been able to confirm that some young Tamils recently returned from Australia as rejected asylum-seekers have been tortured by the security forces for the purpose of extorting bribes from their families." 31 In the course of its summary of the applicant's case for a protection visa, the RRT summarised that part of the contents of the AI letter of support which I have just set out as having included assertions that the applicant, "… faces harm as soon as he returns because he will be presumed to have departed illegally and raised funds for the LTTE while he was abroad. In addition, he will be assumed to have money and will be detained and tortured by corrupt officials intending to extort money from him". It appears to me that that summary was adequate for the RRT's purposes. 32 Having summarised the applicant's case for a protection visa, the RRT, in that part of its statement of findings and reasons in which it was discussing that case and making its findings, dealt, among other things, with the applicant's claim, which had been made (at least) in his written submissions of 17 September 1998, that he feared being persecuted on his arrival at Colombo airport because he had unsuccessfully sought asylum in Australia. (As I have already mentioned, the applicant made no complaint before me as to the manner in which the RRT had rejected that claim.) In dealing with that claim, the RRT dealt, at some length, with the AI letter of support. 33 The RRT acknowledged that information which had been provided to it by the applicant had demonstrated that some returning asylum seekers had encountered difficulties on their return. The RRT then stated that the Australian Department of Foreign Affairs and Trade ("DFAT") had inquired into the circumstances of the persons referred to in the AI letter of support as having been arrested at Colombo airport in 1998. The RRT then summarised the DFAT and other information in the following way: "The available information indicates that, in general, returning asylum seekers who are harassed are people displaced from the war zone who illegally left Sri Lanka with the help of people smugglers, are deported by third countries and mostly lack proper travel and identification documentation." The RRT then continued, "The Applicant has appropriate documentation, left the country legally, is not a displaced person, has a national identity card that states his residence is Colombo and can choose to return to Sri Lanka voluntarily. His passport has expired but there appears no reason why he could not renew it with Sri Lankan authorities in Australia. They are the same authorities that permitted him to leave the country unhindered. His application for a protection visa is confidential and need not be disclosed. In any event, none of the information before the Tribunal indicates that making a refugee application, of itself, is a reason for harassment by Sri Lankan authorities. While the general situation does not exclude the possibility that other people may be harassed on return to Sri Lanka, the Tribunal concludes the Applicant in this case does not face a real chance of persecution because he has sought asylum in Australia." 34 Having concluded its discussion of the applicant's claim that he feared being persecuted on his arrival at Colombo airport because he had unsuccessfully sought asylum in Australia, the RRT then turned immediately to his claimed fear of being the victim of extortion on his arrival at Colombo airport. As to that matter, the RRT stated: "He [that is, the applicant] also fears that he will be the subject of extortion attempts because he is a Tamil returning from overseas. He was not the subject of such attempts while he lived in Colombo, so it appears not to be his race that is essential to the group of people he suggests is at risk of extortion attempts. It is established law that there must be a nexus between the feared persecution and the Convention reason that motivates the persecutor ( see: Ram v MIEA & Anor (1995) 57 FCR 565 at 568; Applicant A v MIEA (1997) 142 ALR 331 per Brennan CJ at 334 335, McHugh J at 354). It is not enough if the Applicant is a member of a particular social group but is persecuted for another reason. For the purposes of the Convention a particular social group comprises 'a recognisable or cognisable group within a society that shares some interest or experience in common' (Morato v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, per Lockhart J. at p. 416). In Applicant A (above), Dawson J characterised a particular social group as: '…a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. It indicates not a disparate group, but one having a unifying feature.' [at 341] In the Federal Court case Minister for Immigration & Multicultural Affairs v Hiromi Kobayashi & Anor [1998] 722 FCA (29 May 1998), Foster J made the following comments about membership of a particular social group: '…it remains important to keep steadily in mind the essential unity of the conception. A crowd is not a social group, and numerous individuals with similar characteristics do not make a social group - certainly not one of a kind that is properly described as having a membership. There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that is it 'for reasons of' his membership of that group.' [at 569] The Tribunal is not satisfied that people returning from overseas, whether Sri Lankans in general or Tamil Sri Lankans, constitute a particular social group for the purposes of the Convention, as they are not a group of people who 'share a certain characteristic or element which unites them and enables them to be set apart from society at large.' The inference of the Applicant's claim is that he will be perceived to sufficiently wealthy to pay extortion demands. However, no approaches have been made to extort his perceived wealth through his parents, for instance. He claims that the purpose of attempts by the government security forces or its allied militant groups would be extortion. That is a criminal activity that is devoid of a connection with the Convention. He seeks to add the Convention perspective by stating that the criminals will falsely accuse him of a connection with the LTTE. That does not disclose a Convention motivation and, in any event, would be a short-lived strategy as victims no doubt would report such attempts to relevant authorities. There is no reason to believe that the relevant Sri Lankan authorities would fail to act against such criminal activities, particularly if valuable time was taken up in investigating false allegations of LTTE connections. If the Applicant is anxious about extortion attempts, he can report those anxieties to the authorities in the expectation they will provide adequate protection against illegal activity. The chances of the Applicant being the victim of an extortion attempt are insubstantial. In summary the Tribunal concludes that the Applicant's fears about extortion are ill-founded: they are not linked with the Convention; there is no more than a remote chance they might be realised; and he can obtain adequate State protection." 35 The applicant has made before me a number of complaints about the passage from the RRT's statement of findings and reasons which I have quoted in the preceding paragraph of these reasons for judgment. Those complaints may be summarised as dealing with the following four matters: first, the RRT's conclusion that the applicant's claim of fear of being the victim of extortion on his arrival at Colombo airport was not a claim of fear of being persecuted for reasons of race within the meaning of the Refugees Convention; secondly, the RRT's conclusion that neither returning Sri Lankans in general nor returning Sri Lankan Tamils in particular constituted a particular social group within the meaning of the Refugees Convention; thirdly, the RRT's conclusion that there existed no more than a remote chance that the applicant's extortion fear would be realised; and, fourthly, the RRT's conclusion that the applicant could obtain adequate State protection on his return to Sri Lanka. 36 Before me, the Minister submitted that, for the applicant to succeed in his challenge to the RRT's decision so far as the aspect of his case which I am presently discussing was concerned, it would be necessary for him to establish judicially-reviewable error by the RRT in respect of either the first or the second of the above four matters and also in respect of each of the third and fourth of the above four matters. The applicant expressly accepted that that was so. 37 In those circumstances, I propose to deal first with the applicant's complaint about the RRT's conclusion that there existed no more than a remote chance that the applicant's extortion fear would be realised. 38 As to that matter, the applicant's submissions took, in substance, the following form: first, the RRT's conclusion that there existed no more than a remote chance that the applicant's extortion fear would be realised was, within the meaning of par 430(1)(c) of the Act, a finding by the RRT on a material question of fact; secondly, par 430(1)(d) of the Act required the RRT to refer in its statement of findings and reasons to the evidentiary material on which that finding had been based; thirdly, the RRT had not complied in that respect with par 430(1)(d) of the Act; and, fourthly, a breach by the RRT of par 430(1)(d) of the Act amounted, within the meaning of par 476(1)(a) of the Act, to a failure by the RRT to observe a procedure that was required by the Act to be observed in connection with the making of its decision. 39 As to the third step in those submissions, the applicant relied on Minister for Immigration & Multicultural Affairs v Gutierrez (1999) 92 FCR 296 (North J). That was a case in which the RRT had, in effect (see at 300, [14]), concluded that a refugee claimant's country of nationality would be unable to afford him effective protection on his return. The RRT had referred in its statement of findings and reasons to no specific evidence on which that conclusion had been based, although it had stated that it accepted the refugee claimant's claims in their entirety. The Minister submitted before North J that, by referring in its statement of findings and reasons to no specific evidence on which that conclusion had been based, the RRT had breached par 430(1)(d) of the Act and had thus enlivened par 476(1)(a) of the Act. (Obviously, that submission was made before the Minister's Pauline conversion regarding the effect of pars 430(1)(d) and 476(1)(a) of the Act.) It was submitted in reply by the refugee claimant that, by stating that it accepted his claims in their entirety, the RRT had "thereby incorporated by general reference all the evidence tendered to the Tribunal which supported the finding" (see at 300, [13]). 40 North J accepted the Minister's submissions in preference to those of the refugee claimant. He stated (at 300, [13]), "In my view s 430(1)(d) requires a specific reference to the evidence or other material which supports the relevant finding. The purpose of s 430(1)(d) is to arm the reader of the decision with an understanding of the steps by which the Tribunal reached its decision. It would not be sufficient for the Tribunal to say that it found that the State could not effectively protect a person 'on the basis of all the evidence tendered to the Tribunal which supports the finding', unless that formula identified particular evidence. In the present case the reference is even more oblique." 41 Accepting for present purposes the correctness of the approach taken by North J in Gutierrez to par 430(1)(d), I nevertheless reject the applicant's submission that, in the circumstances of the present case, the RRT did not refer in its statement of findings and reasons to the evidentiary material on which had been based its finding that there existed no more than a remote chance that the applicant's extortion fear would be realised. 42 In my view, the RRT referred to two aspects of the evidentiary material before it as evidentiary material on which had been based its finding that there existed no more than a remote chance that the applicant's extortion fear would be realised. 43 First, there was the reference to the evidentiary material that "no approaches have been made to extort his perceived wealth through his parents, for instance". Secondly, there was the reference to the evidentiary material that, "… in general, returning asylum seekers who are harassed are people displaced from the war zone who illegally left Sri Lanka with the help of people smugglers, are deported by third countries and mostly lack proper travel and identification documentation." It is true that the second of those references did not appear in that part of the RRT's statement of findings and reasons in which it was dealing specifically with the applicant's claimed fear of being a victim of extortion on his arrival at Colombo airport. The reference instead appeared in that part of the RRT's statement of findings and reasons in which it was dealing with the applicant's claimed fear of being persecuted on his arrival at Colombo airport because he had unsuccessfully sought asylum in Australia. However, given that each of those successive parts of the RRT's statement of findings and reasons was concerned with the question of what was likely to happen to the applicant on his arrival at Colombo airport, I infer that the RRT relied again in the later of those two parts on the evidentiary material to which it had referred in the earlier of those two parts. In particular, I infer that the RRT considered that there existed a real chance of extortion of returning unsuccessful asylum seekers on their arrival at Colombo airport only if they had left the country illegally, having been displaced from the war zone, and had no proper travel and identification documents, a class into which the applicant would not fall. 44 Given the conclusion which I have reached regarding the applicant's complaint about the RRT's conclusion that there existed no more than a remote chance that the applicant's extortion fear would be realised, it is unnecessary, for the reason which I have already given, that I should deal in these reasons for judgment with the applicant's complaints about the other three matters to which I have referred at [35] above.