Case: Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Outcome: considered
The appellant relies on the following passage from the Tribunal's reasons to support this ground: "The applicant is concerned that the LTTE will seek to extort money from him upon return because he would be thought to have money given that he has worked abroad for so long. There has been no such approach to him in the past but if this were to occur I do not consider that the evidence indicates that it would be anything other than an opportunistic grab for money. What the applicant seems to me to fear is analogous with the circumstances described in Ram v MIEA (1995) 57 FCR 565. In his judgment (at 569-570) Burchett J stated: Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual .... [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually. I do not consider that the evidence about the appellant's circumstances indicates that there is a real chance that the applicant's race, religion, nationality, membership of a particular social group or his actual or imputed political opinion would be the essential or significant reason for any extortion demands which he may face upon return from the LTTE, rather the essential and significant reason for such treatment would be his perceived possession of money. Consequently such treatment does not constitute persecution within the meaning of the Refugees Convention." 5 It is true that in that passage the Tribunal does not say that the claim was that the appellant feared extortion because he was Tamil. However, a reading of the Tribunal's reasons as a whole makes it perfectly clear that that was the claim it was addressing. 6 The appellant's whole case for a protection visa was founded on his Tamil ethnicity. Under the heading "The Applicants' Claims" the Tribunal recorded claims that &#8226; the appellant was a male of Tamil ethnicity, &#8226; the LTTE had details of all Sri Lankan Tamils living in Sri Lanka and in foreign countries &#8226; the Army was reported to be killing Tamil civilians. It also recorded that &#8226; it had raised with the appellant information indicating that Tamils were subjected to less checking than before &#8226; the appellant's adviser at the first Tribunal hearing submitted that the appellant faced persecution because he is a Tamil from Jaffna &#8226; in a submission to the current Tribunal it was put that LTTE cadres were abducting Tamil youths and extorting money from Tamils, that as a Jaffna Tamil the appellant would not be able to live in any Sinhalese areas, and that more than a hundred young Tamils had been taken in for questioning and thirteen of them were arrested. It is clear from the foregoing that all these claims are related to the appellant's fears based on his Tamil ethnicity. 11 The Tribunal's statement (recorded at [4]) that it did not consider the extortion would be anything other than an opportunistic grab for money, in the context recorded at [6] to [10], is to be understood as a rejection of the reason the appellant advanced for the extortion, namely that he is a Tamil. The reference to Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 is unexceptionable. There it was claimed that the appellant was a member of a class of wealthy Sikhs who were liable to extortion. The Full Court held that because the extortion was not based on membership of that class but purely on opportunism, there was no Convention basis. That is what Burchett J said at 569-570. The Tribunal was saying that just as in Ram the extortion was not because the appellant was a wealthy Sikh, so in this case it was not because the appellant was a Tamil. In each case the extortion was opportunistic. 12 It was not put to the Tribunal that the appellant was a member of a particular social group. However the Tribunal did say it was not satisfied that there was a real chance that the appellant's membership of a particular social group would be the essential and significant reason for any extortion demands. The appellant did make social group claims before the Magistrate. For the reasons his Honour gave in connection with the appellant's Tamil ethnicity, the social group claim, based as it was on Tamil ethnicity (see [3]), had to fail. See pars 20 to 22 of the Magistrate's reasons. 13 The Tribunal did not fail to address the case put by the appellant. The Magistrate did not err in so holding. 14 This is that the Magistrate erred in finding that the Tribunal's decision with respect to the appellant's detention and torture "was not based on findings for which there was no information". This ground is directed to the Tribunal's refusal to accept that the appellant was arrested, detained, interrogated and tortured in December 1998 on suspicion of associating with the LTTE. The Tribunal gave four reasons for this conclusion. The first is not attacked. It is that "independent information indicates that Tamils have been subjected to checking in Colombo for many years. As is apparent from the account of relevant information outlined above, it was young Tamils from the north or east of the country without a plausible reason for their presence in Colombo who were likely to be taken into custody for further questioning or to establish their bona fides. This does not mean that other people are not, but it does indicate the importance attached to identity documents and weighs against the claim that the applicant was not allowed to show his passport." The reference to the passport is to the appellant's claim that after he had been detained, the authorities refused to allow him to show his passport to verify that he had come from Brunei where he had been working.