Kathiravelu v Minister for Immigration & Multicultural Affairs [2000] FCA 1279 (11 September 2000)

Last Updated: 12 September 2000

FEDERAL COURT OF AUSTRALIA

Kathiravelu v Minister for Immigration & Multicultural Affairs [2000] FCA 1279

IMMIGRATION - Refugee - application by elderly Tamil woman for protection visa refused - refusal affirmed by Refugee Review Tribunal - extortion practised against applicant by Tamils opposed to Liberation Tigers of Tamil Eelam and by Sri Lankan police - motivation for extortion - whether for Convention ground of race - mixed motivations - perceived wealth - harbouring of suspected LTTE member.

Migration Act 1958 (Cth) s 476(1)(a), (e)

Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274, referred to

Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517, referred to

Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565, referred to

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225, distinguished

Paramananthan v Minister for Immigration and Ethnic Affairs (1998) 94 FCR 28, distinguished

NAGESWARI KATHIRAVELU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1145 OF 1999

LINDGREN J

11 SEPTEMBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1145 OF 1999

BETWEEN:	NAGESWARI KATHIRAVELU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	11 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1145 OF 1999

BETWEEN:	NAGESWARI KATHIRAVELU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	11 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 The applicant ("Ms Kathiravelu") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate of the respondent ("the Delegate" and "the Minister" respectively) not to grant her a protection visa.

2 Section 29 of the Act provides that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

(a) travel to and enter Australia;

(b) remain in Australia.

It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). As a party to the Convention, Australia has undertaken protection obligations to a person who is a "refugee" as defined in the Convention.

4 Article 1A(2) of the Convention provides that a refugee is any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6 The RRT's decision was a "judicially reviewable decision" (s 475(1)(b) of the Act), the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476) and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).

7 Ms Kathiravelu's case is that she, a Tamil, is outside the country of her nationality, Sri Lanka, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of race, membership of a particular social group and imputed political opinion. On her present application, her submissions concentrated on race alone.

Procedural background

8 The Applicant arrived in Australia on 8 August 1996 (most recently - she had previously visited Australia). On 7 February 1997, she applied, through McDonnells Solicitors, for a protection visa (visa sub-class 866). The Delegate refused the application on 8 September 1997. On 23 November 1998 the RRT affirmed the Delegate's decision. Ms Kathiravelu sought judicial review of the RRT's decision. On 3 May 1999, by consent, the Court set aside the decision and remitted the matter to the RRT to be decided according to law. The RRT, differently constituted, conducted a hearing on 3 August 1999. On 14 September 1999 it again affirmed the Delegate's decision not to grant a protection visa. On 7 October 1999 Ms Kathiravelu filed her application in this Court for review of the RRT's decision. On the hearing on 3 July 2000 she filed in Court an amended application referred to below.

The reasons for decision of the RRT

9 The Reasons for Decision of the RRT are lengthy, partly because of the successive submissions and statutory declarations made on behalf of, and by, Ms Kathiravelu, and partly because they recount aspects of the earlier proceeding before the RRT mentioned above. The submissions made to me related chiefly to extortion practised against Ms Kathiravelu by Tamil activists opposed to the Liberation Tigers of Tamil Eelam ("LTTE") and by the police in Colombo. In summary, she submits that the RRT erred in assuming that the Convention ground of race was prevented from being a reason for the persecutory extortion alleged because the extortion was motivated by the activists' desire for money to support their activities and by greed in the case of the police. Accordingly, in the following summary of the RRT's Reasons for Decision I will omit most of the facts that are not related to extortion.

Ms Kathiravelu's claims and evidence before the RRT

10 Ms Kathiravelu was born in 1940 and is a Tamil from Jaffna. She moved from Jaffna to Colombo to live in April 1991, remaining there until August 1996 when, as noted above, she travelled to Australia as a visitor. She had previously travelled to Thailand in December 1988 and to Australia to visit her son in April-July 1992.

11 On 20 March 1997 McDonells Solicitors, who were then representing Ms Kathiravelu, submitted a preliminary "short statement" by her to the Department of Immigration and Multicultural Affairs ("the Department"). The RRT summarised the claims made in the short statement as follows. Ms Kathiravelu's home was invaded, searched and household items were destroyed by the Sri Lankan army in 1985 while they were searching for one of her sons, about whom she was questioned. She was forced to give money to the LTTE in 1985, 1986, and from 1990 until "the evacuation of Jaffna in October 1995". Her home was invaded and looted in early 1991 when she was abused and questioned about another son. In Colombo in March 1996 she was picked up by the police and detained for five days at the Wallawatte police station for questioning about a relative "with whom she had been staying." She was abused and physically mistreated and was released only after a bribe of 52,000 rupees was paid. While staying at a hostel in Colombo in July 1996, Ms Kathiravelu was detained for a week, questioned about her sons and relative, had to pay a 35,000 rupee bribe, and was threatened with further arrest.

12 On 22 April 1997, McDonells Solicitors supplied to the Department a submission accompanied by a statutory declaration by Ms Kathiravelu of 24 paragraphs dated 16 April 1997 making the following more detailed and extensive claims. On the hearing Ms Kathiravelu was later to ask the RRT to disregard the earlier short statement as she had been in a confused state at that time. In fact the RRT stated that it gave no weight to the earlier statement in making any adverse findings about Ms Kathiravelu's reliability or credibility. The following account of her claims and evidence is, in substance, based on the RRT's summary of the submission made to the Department in April 1997.

13 Ms Kathiravelu was brought up in a village in the Jaffna area, married in 1958 and spent most of her married life in Colombo, returning to Jaffna to live after her husband's death in 1971. She and her husband had six children, three sons who live outside Sri Lanka (one in Australia) and three daughters who live in Sri Lanka. In 1983 Tamil youths began fighting the Sri Lankan government for independence. Ms Kathiravelu's youngest son joined a group called the "Tamil Eelam Liberation Army" ("TELA"). The security forces searched their home and abused and threatened Ms Kathiravelu in order to ascertain the son's whereabouts. She agreed to pay the TELA 100,000 rupees in a lump sum and to supply food for its local members twice a week in return for the release of her son. This arrangement continued for four or five years.

14 In 1985 another son was working with a cooperative society which supported "PLOTE", the major rival of the LTTE. The LTTE abused her verbally and physically and demanded that her son withdraw from the cooperative. He did so and PLOTE subsequently abused Ms Kathiravelu verbally, beat her and demanded money from her. She paid PLOTE 20,000 rupees, the proceeds of the sale of some land.

15 In October 1990, the Sri Lankan army surrounded Ms Kathiravelu's village, and ultimately ordered the residents to leave. The forces detained and randomly assaulted Ms Kathiravelu and others. She had to leave the village. In April 1991 she fled to Colombo where she stayed with a friend.

16 She visited her son in Melbourne in April-July 1992, and returned to Colombo with his financial support. She was harassed in Colombo by the police since her National Identity Card showed her as being from Jaffna.

17 In Colombo she rented a "small annex" and was supported financially by her sons in Australia and France. She lived in Colombo from 1992 to 1996. In late 1994 her cousin's son, elsewhere referred to as her cousin's sister's son, commenced living with her in the annex. He told her that he was a supporter of the LTTE. She said that she rented a room to him because he was alone and had nowhere to live and she was alone too.

18 After some six months, anti-LTTE Tamil groups started to harass Ms Kathiravelu and to demand money from her. They told her they knew she was harbouring an LTTE man. She gave them 30,000 rupees in late 1995.

19 In February 1996, the police questioned her about her lodger. She said she did not know where he was. The police told her he was an LTTE member and that they had come to arrest him. They accused her of harbouring him and they assaulted and physically and verbally abused her for half an hour. They took her to the Dehiwala police station where she was assaulted, her fingerprints were taken and she was questioned further about her lodger. She was released after two days upon promising to pay 50,000 rupees.

20 In the meanwhile, her lodger had disappeared. Ms Kathiravelu has not seen him since the day she was detained by the police in February 1996.

21 Following her release by the police, Ms Kathiravelu was obliged to report to them every two weeks and she received regular visits from them. As a result, the owner of the annex asked her to leave. She stayed temporarily with friends in Wellawatte and then at a hostel. She now had to report to a different police station. The police told her they believed she knew the whereabouts of the young man. She states that she had come to learn from friends that the young man was in fact a member of an LTTE bombing squad. She states that she had not known this when he was living with her.

22 She felt that it was no longer safe for her to remain in Sri Lanka. Her son sent her the relevant documents to travel to Australia. She paid 3,000 rupees to extend her passport and did not inform the police that she was leaving the country.

23 Ms Kathiravelu claimed to fear persecution by reason of her Tamil ethnicity and her membership of a particular social group, namely, her extended family, including her cousin's son. She claimed to have been detained as a result of her membership of a family that was perceived to be politically opposed to the Sri Lankan authorities. She submitted that as a Tamil returning from overseas, she would be presumed by the police and Tamil groups to be wealthy and would therefore be vulnerable to extortion by them.

24 Ms Kathiravelu told the RRT that the son of her cousin's sister had come to Colombo to live with her from late 1994, and that the first problems concerning him occurred in about June 1995, when three or four people, who identified themselves as members of the "EPRLF" (an anti-LTTE group), inquired whether the boy was participating in the LTTE and she denied that he was.

25 The RRT asked Ms Kathiravelu about the police arrest. She said that the police came early on a morning in February 1996. They asked where the relative was but he had escaped. Ms Kathiravelu was taken to the police station and questioned. She was accused of lying and was assaulted and locked in a cell. After two or three days the police accompanied her to her house and she gave them about 50,000 rupees some four days after her release. She was forced to sign at the police station every fortnight and was subjected to police checks on four or five occasions at her house. On these occasions the police would accuse her over the young man's whereabouts and abuse her and hit her with whatever was in their hand.

Findings and reasons

26 The RRT accepted that a young Tamil relative of Ms Kathiravelu had lodged with her in Colombo from late 1994 until early 1996 and that:

"some Tamils (whether or not actually identified as the EPRLF...) came on one or more (but not many) occasions in the second half of 1995 and extorted money from [Ms Kathiravelu] on the basis that she had adult children living overseas and therefore could pay extortion".

The RRT was not satisfied, however, that these visits related to her lodger at all or that the extortionists visited her up to, or more than, ten times. It was "not satisfied that these visits or the extortion occurred for any Convention reason", stating "[t]he motivation was simply the money said to have been extorted from the Applicant" (my emphasis). The RRT observed that these visits and the extortion by the Tamil activists opposed to the LTTE ceased at the beginning of 1996 and did not resume. The RRT concluded that there was no reason to believe that extortion by them would recur "or that such extortion in the future would be motivated for a different, Convention reason".

27 In relation to what it referred to as Ms Kathiravelu's "primary claim" relating to the questioning and mistreatment by the police early in 1996 in relation to her Tamil lodger, the RRT was not satisfied that she was tortured or beaten, although it accepted that she was treated discourteously and may have been handled roughly (pushing or grabbing) when the police first came. It accepted that in February 1996 the police did question her about her lodger and subsequently kept in touch with her through her periodic reporting to the police, but not because she was a member of the suspect's family (there was no claim that other family members were targeted) or because she was suspected of being a member of the LTTE.

28 The RRT found no evidence that Ms Kathiravelu's National Identity Card or passport, which it observed were renewed in April and July 1996 respectively, were renewed fraudulently or without the knowledge of the relevant authorities. Their renewal by the authorities and Ms Kathiravelu's departure from Sri Lanka openly on her passport in August 1996 persuaded the RRT that she was not of interest to them because of any profile attributed to her; rather, she was of interest to them only as a potential source of information about her lodger.

29 In sum, the RRT did not accept

* that Ms Kathiravelu was questioned or detained by the police for a Convention reason, including her ethnicity;

* that the questioning of Ms Kathiravelu and the imposition of reporting conditions on her in relation to an inquiry about a person suspected of being an LTTE bomber amounted to persecution of her for a Convention reason; or

* that any rough handling or physical mistreatment of her, associated with the questioning, occurred for any Convention reason.

The RRT noted that although it is generally Tamils who are detained and questioned in relation to LTTE activities, in several recent cases Sinhalese have informed the RRT that they have also been detained and questioned in relation to LTTE activities and that in some of these cases they have had suspected LTTE supporters staying with them.

30 The RRT found that although Ms Kathiravelu's account of extortion by police officers was plausible, there was no reason to believe that the money was demanded for a Convention reason as distinct from self-interested criminal greed. The RRT did not accept that Ms Kathiravelu was or would be "simply targeted and persecuted [by pro-government Tamil groups and the police] as a Tamil on the basis of her ethnicity" (my emphasis).

31 The RRT further found that if Ms Kathiravelu was subject to the threat of extortion or other harm by the police, she had access to legal measures to deter and provide redress for this type of harassment.

32 The concluding paragraphs of the RRT's Reasons were as follows:

"Taken together, a consistent picture emerges, indicating that the Sri Lankan authorities do not target Tamils per se and that although abuses can occur, the Government is providing genuine and increasingly effective mechanisms for protection or redress against abuse by the security forces. On the basis of the evidence before it, the Tribunal does not accept that the probable consequence of brief detention for the checking of identity or questioning about Tamil lodgers will be the physical mistreatment of those detained or that Sri Lankan government is `aware that the probable consequence of such detention will be the physical mistreatment of those detained' or that it regards such treatment as acceptable.

Although it is possible that on return to Sri Lanka the Applicant may attract some legitimate police interest, having departed without explanation when required to report regularly, the Tribunal is not satisfied that this would amount to persecution for a Convention reason.

It is a legitimate cause for concern by the Applicant that, as a person who has lived overseas and had relatives overseas and is therefore believed to have access to money and be a suitable target for threats and extortion, she has in the past (and may again in the future) attract criminal and non-legitimate interest from the police or others, but the Tribunal is satisfied that this is not a harm or danger which would be motivated by any Convention reason (include [sic] ethnicity or particular social group).

The Tribunal is satisfied that the Applicant does not have a well-founded fear of persecution for a Convention reason on return to Sri Lanka. There may be legitimate matters of humanitarian concern in this case, not least because of the length of time over which the Applicant has encountered worries and difficulties arising from the unsettled situation in Sri Lanka, resulting in her present condition as described by the clinical psychologist. However, the Tribunal has no jurisdiction to make determinations on any humanitarian aspects of the Applicant's claims other than those which give rise to a claim to refugee status in terms of the Convention definition".

Grounds of the present application for an order of review

33 The grounds of review relied upon by Ms Kathiravelu appear in her amended application as follows:

"(1) The decision of the RRT involved an error of law being either an incorrect interpretation of the applicable law and/or an incorrect application of the law to the facts as found by Refugee Review Tribunal.

(i) the RRT erred in interpreting the applicable law or in applying it to the facts as found in concluding that the carrying out of extortion as part of a self-interested criminal attempt to obtain money was inconsistent with such acts being carried out for a Convention reason.

(ii) The RRT erred in interpreting the applicable law in applying it to the facts as found concluding that for the Convention test to be satisfied it was necessary for the Sri Lankan authorities to be motivated to target Tamils per se as opposed to their being the subject of discriminatory acts.

(2) Procedures required by the Migration Act 1958 (Cth) to be observed in connection with the making of the decision was not observed.

Particulars

The RRT failed to comply with section 430 (1) of the Migration Act 1958 (Cth) by its failure to make finding of fact concerning whether the applicant was made more vulnerable to extortion by the EPRLF and/or the police as a result of her race."

Reasoning on the present application for an order of review

Error of law

34 Ms Kathiravelu submits that the only reason why the RRT concluded that the extortion practised on her did not bring her within the Convention definition of "refugee" was that it erred in its interpretation and application of the definition. In support, she submits that the RRT did not find that the extortion was not a sufficiently serious interference with her rights to amount to persecution or that there was not a real chance that the extortion would be repeated if she were to return to Sri Lanka. As noted below, in relation to extortion by anti-LTTE Tamils, the RRT did find, contrary to the submission, that there was not a real chance that the extortion by them would be repeated.

Extortion by anti-LTTE Tamils

35 I will deal first with the question of extortion by anti-LTTE Tamils in the second half of 1995. Ms Kathiravelu submits that the RRT erroneously assumed that there was a necessary dichotomy between "criminal extortion" and Convention based acts. She refers to the two sentences that I have emphasised in the following passage from the RRT's Reasons for Decision:

"After carefully considering all the evidence before the Tribunal, the Tribunal accepts that a young Tamil relative of the Applicant was lodging with her in Colombo from late 1994 until early 1996. The Tribunal accepts that some Tamils (whether or not actually identified as the EPRLF, given the Applicant's conflicting accounts) came on one or more (but not many) occasions in the second half of 1995 and extorted money from the Applicant on the basis that she had adult children living overseas and therefore could pay extortion. The Tribunal is not satisfied that these visits related to her young lodger at all and does not accept that the extortionists came on up to or more than ten occasions on each of which the lodger managed to absent himself to avoid their attentions. The Tribunal is not satisfied that these visits or the extortion occurred for any Convention reason. The motivation was simply the money said to have been extorted from the Applicant. According to the Applicant's evidence, these visits and extortion ceased at the beginning of 1996 and did not resume. There is no reason to believe that they would recur now, more than three years later, or that such extortion in the future would be motivated for a different, Convention reason".

36 Ms Kathiravelu submits that it is sufficient that race was a factor, and need not be the only factor, in the selection of her as a candidate for extortion, citing Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165; (1999) 84 FCR 274 (FC) ("Perampalam") at 282-283 per Burchett and Lee JJ and Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517 (FC) ("Sarrazola") at 645-646.

37 I accept that the Convention definition of "refugee" can be satisfied even though persecution can be seen to be in part for a non Convention reason. In Perampalam the RRT found that the LTTE approached Tamils for funding. Burchett and Lee JJ held that it was beside the point that particular Tamils were singled out because of their perceived wealth. Similarly, in Sarrazola the Full Court held that it was an error to think that a motivation of extortionists to recover a debt owed to them by their victim's deceased brother was inconsistent with a motivation of harming the victim by reason of her family membership or her relationship to her brother as such.

38 In the second sentence relied on by Ms Kathiravelu, the RRT does not state that the motivation of the Tamil extortionists was "not simply race" - a formulation which might, at least as a matter of language, have suggested that the RRT was erroneously assuming that the Convention definition could not be satisfied if motivation was mixed. At least as a matter of language, the finding that the anti-LTTE Tamils' motivation was "simply the money" may be thought to exclude the Convention grounds, that is, to be inconsistent with her Tamil ethnicity being a factor.

39 I accept, however, that this is not necessarily the end of the matter. Ms Kathiravelu's case before the RRT was that members of the EPRLF came because of her accommodation of an LTTE member. She told the RRT that they asked about him (and about her own children). She said that when they came, the boarder would disappear, leaving her to deal with the visitors and that they harassed her and she gave them money - 30,000 rupees one time and smaller sums on other occasions.

40 There was no country information before the RRT as to the source or sources of funding of anti-LTTE Tamil groups. The RRT made no finding on the matter and apparently could not have done so on the country information before it. For all that appears, the anti-LTTE Tamils may derive funds from non-Tamils as well as the Tamil population of Sri Lanka. According to the RRT, Ms Kathiravelu claimed that the visitors extorted money from her "on the basis that she had adult children living overseas and therefore could pay extortion". This could amount to a finding that her Tamil ethnicity played no part or it could be consistent with her Tamil ethnicity playing a part.

41 It seems to me that according to the RRT, on Ms Katheravelu's account there were three possible reasons to be considered for the anti-LTTE Tamils' initial contact with her. The first was the making of inquiries about her pro-LTTE lodger. The second was her perceived wealth. The third was her Tamil ethnicity. In relation to the first, perhaps surprisingly, the RRT expressly declared itself "not satisfied that these visits related to her young lodger at all." This left to be considered Ms Katheravelu's Tamil ethnicity and her perceived wealth (not mutually exclusive).

42 What Burchett and Lee JJ stated in Perampalam is relevant to the present issue. In that case, the Tribunal had referred to the judgment of Burchett J (with whom O'Loughlin and R D Nicholson JJ agreed) in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 ("Ram") in which the following passage had appeared (at 569):

"Plainly, extortionists are not implementing a policy; they are simply extracting money from a suitable victim. Their forays are disinterestedly individual."

In Perampalam, Burchett and Lee JJ distinguished this passage. They did so on the ground that in Ram there had been an express finding by the Tribunal as follows (at 567):

"...the applicant has not satisfied me that the extortion was anything other than a criminal act or that he was targeted for any reason other than he was known to have money."

Burchett and Lee JJ observed that in the case before them, by contrast, the RRT had made a positive finding as follows (at 282):

"...there is no doubt that the LTTE approaches Tamil[s] for funding."

As noted already, there is no comparable finding here by the RRT to the effect that anti-LTTE Tamil groups approach Tamils for funding.

43 If I found it necessary to do so, I would construe the passage set out earlier as containing findings that the anti-LTTE Tamils approached Ms Kathiravelu for no other reason than that she was perceived to have a capacity to pay because she had adult children living overseas - a consideration equally applicable to non-Tamils. This view of the paragraph is consistent with the beneficial reading of the RRT's Reasons for Decision that I am required to give: see, for example, Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.

44 There is, in any event, an independent reason why, in my opinion, the passage set out earlier does not avail Ms Kathiravelu, namely, the finding in the last two sentences that there is no reason to believe that the visits and extortion will be repeated. This finding is one that was open to the RRT and provides an answer to a claim of well-founded fear of persecution in the form of extortion by anti-LTTE Tamils.

Extortion by the police

45 I turn now to the issue of extortion by the police. The RRT accepted that the motivation for police contact with Ms Kathiravelu was their legitimate interest in obtaining information about a person suspected of being a member of an LTTE bombing squad. This was not connected with Ms Kathiravelu's race or political opinion. Indeed, the RRT noted that there are instances of non-Tamils having been also detained and questioned in relation to their accommodation of suspected LTTE supporters. Ms Kathiravelu's adviser submitted that it was a well documented fact that if a person was suspected of harbouring an LTTE suspect, or of merely giving accommodation to a suspect, he or she will be severely dealt with by the authorities. As explained below, the RRT's finding as to the motivation of the police in questioning, and sometimes detaining, Ms Kathiravelu is relevant to the motivation for the subsequent extortion practised on her.

46 Ms Kathiravelu attacks the following two passages in the RRT's Reasons for Decision:

"There is no evidence or plausible reason to believe that the money was demanded for a Convention reason, rather than a self-interested criminal attempt to obtain money. The submissions before the Tribunal on behalf of the Applicant suggested that as a person with adult children abroad or who had herself been abroad and returned, the Applicant would be assumed to be wealthy by both the police and pro government Tamil groups and would thus be vulnerable to extortion.

The Tribunal does not accept that the Applicant has been or would be simply targeted and persecuted as a Tamil on the basis of her ethnicity." (my emphasis)

"Taken together, a consistent picture emerges, indicating that the Sri Lankan authorities do not target Tamils per se..." (my emphasis)

47 As a matter of language the first of these passages (the second is equivocal) may suggest that the RRT was wrongly insisting that in order for the Convention definition to be satisfied, race had to be the sole reason for the extortion. But both passages must be understood in the context of the totality of the RRT's reasons. A fair reading of those reasons, including the two passages set out, shows that the RRT found as follows:

1. The motivation for the police contact with Ms Kathiravelu was exclusively the legitimate one of suppressing terrorist activity by a suspected member of the LTTE whom she was accommodating.

2. The subsequent extortion of money was motivated by the opportunistic self-interest of the individual police officers who engaged in the practice.

3. Ms Kathiravelu had effective state protection in respect of the harm or extortion by the police.

48 The RRT accepted that the sole reason for the police interest in Ms Kathiravelu was her housing of the LTTE suspect and that the police show the same interest in Sinhalese who are suspected of having LTTE supporters staying with them. That is, the police contact with Ms Kathiravelu was for reasons that had nothing to do with her at all. In the light of this, the finding became almost inevitable that the subsequent extortion was motivated by the opportunism of particular police officers directed against a person with whom they were in contact, and who, they perceived, had the capacity to pay.

49 Perhaps the RRT's use of the words "simply" (and "per se") is attributable to an attempt to distinguish between the opportunistic self-interest which it found explained the acts of the police officers and Ms Kathiravelu's Tamil ethnicity which it found did not. That is, perhaps the RRT said "simply" (and "per se") when it meant something like "at all".

50 It seems to me that the present case is to be distinguished from those in which a state takes legitimate action calculated to protect its people from, for example, a group identified by race (or, no doubt, by the other criteria referred to in the Convention definition), and in the course of, or after its doing so, individual functionaries of the state persecute members of the group; cf Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 258-259 per McHugh J; Paramananthan v Minister for Immigration and Ethnic Affairs (1998) 94 FCR 28 at 38-40 per Wilcox J; at 40-43 per Lindgren J. I think the RRT found that the result would have been the same in the present case if the young man in whom the police were interested had been lodging with a non-Tamil. The police did not discriminate against Ms Kathiravelu for reason of her Tamil ethnicity.

51 In any event, in relation to extortion by the police the RRT found that there was available to Ms Kathiravelu adequate protection and redress from the Sri Lankan authorities. This finding provides an independent answer to Ms Kathiravelu's claim in so far as it depends on extortion by the police.

52 For the above reasons, I do not think that the error of law ground is made out.

Failure to observe procedure

53 Ms Kathiravelu also relies on an alleged failure by the RRT to observe the requirement of par 430(1)(e) of the Act that it set out its findings on any material question of fact. Ms Kathiravelu submits that the RRT failed to make findings of fact on the issue whether there was a connection between her Tamil ethnicity and the extortion practised on her. She refers to certain country information which was before the RRT which, she submits, suggests such a connection. For example, she refers to the following passage in "TamilNet" of 22 April 1998:

"We have also alarming and disturbing reports of money being extorted from persons in detention by unscrupulous Police personnel. There had been several complaints made to me [a Member of Parliament] by affected parties in this regard."

54 In my respectful opinion, however, it follows from my construction of the RRT's Reasons for Decision which I have attempted to describe above that the RRT did find that there was not the required connection between either the extortion by the anti-LTTE Tamil group or that by the police, and the Convention grounds. In the case of the extortion by the anti-LTTE Tamils the motivation was expressed to be exclusively the taking of money for their purposes from a person perceived to have the capacity to pay. In the case of the extortion by the police, the motivation was the opportunistic greed of individual police officers who came into contact, unintentionally by reason of a legitimate police interest in her lodger, with a person who had a capacity to pay.

Conclusion

55 For the above reasons the application will dismissed with costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 11 September 2000

Counsel for the Applicant:	Mr R Beech-Jones
Solicitor for the Applicant:	NAN Solicitors
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	3 July 2000
Date of Judgment:	11 September 2000