SZQVH v Minister for Immigration
[2012] FMCA 246
•20 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQVH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 246 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant disbelieved in important respects – applicant given opportunity to provide documents after the Tribunal hearing – applicant submitting an explanation as to why he was unable to provide further documents, which included a link to an internet web page – whether a document that would be found by following this link was information that the Tribunal was required to take into account considered. |
| Migration Act 1958 (Cth), s.414 |
Minister for Immigration v SZIAI [2009] HCA 39
| Applicant: | SZQVH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2561 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 27 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner |
| Counsel for the Respondents: | Turner Coulson Immigration Lawyers |
| Solicitors for the Respondents: | Ms K Hooper DLA Piper |
ORDERS
The amended application filed on 22 December 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2561 of 2011
| SZQVH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 6 October 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the written submissions of the parties.
The applicant is a male citizen of Sri Lanka.[1] He arrived in Australia on 8 June 2006.
[1]court book (“CB”) 33
The applicant applied for a protection visa on 31 January 2011.[2] The applicant claimed to fear persecution because of his political opinion and his family's political background. A delegate of the Minister refused the application on 7 April 2011.[3] The applicant sought review of the delegate's decision by application lodged on 2 May 2011.[4] The applicant attended a hearing before the Tribunal on 26 July 2011,[5] at which determinative issues were traversed.
[2] CB 1
[3] CB 59
[4] CB 66
[5] CB 88
The Tribunal accepted the applicant was an ordinary member of the United National Party (UNP) and engaged in low level political activities in support of the UNP during the time of elections. It accepted that the applicant was influenced by his family's political background (at [55]-[57][6]; [65][7]). The Tribunal did not accept that the applicant experienced any problems because of his political opinion or that his family experienced any difficulties (at [58]-[65]). It found that the applicant had embellished his and his family's political profile to bolster his claims (at [66]).
[6] CB 120-121
[7] CB 124
The present application
These proceedings began with a show cause application filed on 10 November 2011. The applicant now relies upon an amended application filed on 22 December 2011. There is a single ground in that application which is particularised:
1. The Tribunal failed to carry out its statutory duty
Particulars
a. The Tribunal was required to review the decision of the Minister for Immigration & Citizenship in relation to the applicant’s application for a protection visa
b. The review of the decision must include a consideration of all the relevant evidence and statements given or made by the applicant
c. The applicant provided what the Tribunal referred to as “country information” to the Tribunal (para 50)
d. The applicant provided, by e-mail, an explanation of the reasons why he could not provide further information and provided evidence to support his claims (CB101)
e. The Tribunal set out at para 50
“The applicant submitted country information regarding the current situation in Sri Lanka. The Tribunal gave the applicant a further two weeks to provide the evidence he referred to during the hearing and advised the applicant if he experienced any delays or problems obtaining this evidence, to contact the Tribunal and it will consider providing him an extension of time to submit the evidence.”
and concluded at para 65
“…The Tribunal notes the applicant endeavoured to get a copy of the letter his father received from the UNP to confirm this claim but to date the Tribunal has not received any further evidence from the applicant…”
f. On the face of the decision the Tribunal failed to take into account the “country information” and explanation provided by the applicant.
I received as evidence the court book filed on 14 December 2011. I also received as evidence the applicant’s solicitor’s affidavit made on 22 December 2011 to which is attached two documents downloaded from a website referred to in submissions.
In short, the applicant contends that the Tribunal fell into error by failing to have regard to country information provided by the applicant to the Tribunal.
The Minister contends that there was no error by the Tribunal. In particular, the Minister makes the following submissions:
The applicant alleges that the RRT failed to carry out its statutory duty because it failed to consider country information and an explanation provided by the applicant as to why he could not provide further information (citing the RRT at [50] and [65], and see applicant's submissions at [13]).
The first respondent understands it not to be in issue that:
[(a)]The document at annexure A to the affidavit of Mr Turner was not itself directly provided to the RRT (rather, the applicant submits it was provided by way of his provision of a web link: applicant's submissions at [11]).
[(b)]The web link will not take a person who clicks on it immediately to the document at annexure A. Rather, some additional navigation of the website, which contains a number of articles and links to various materials, is required in order for one to arrive at the document at annexure A.
If the above matters of fact are disputed, the first respondent would seek leave to adduce additional evidence in order to demonstrate their correctness.
Country information
The applicant submitted to the RRT a number of Internet news articles concerning Sri Lanka, and, in particular, the situation for journalists in Sri Lanka. None of these news articles was of particular, or indeed any, relevance to the applicant's claimed situation. The RRT referred to the country information at [50] of its decision.
Although it did not mention the country information in its findings, it is well established that the RRT does not have to refer to all items of evidence before it: see, for example, Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24].
That is particularly so where, as here, the applicant did not identify to the RRT the significance of this general information to his particular claims, and its significance was not at all apparent.
Applicant's explanation
The applicant sought additional time, twice, to provide further information following the RRT hearing.
The additional information appears, from [36] and [50], to have been contemplated as being evidence concerning a claimed acquisition of part of the family's land for building a road, and concerning events arising out of the acquisition.
The RRT granted both of the applicant's requests for additional time.
The applicant ultimately informed the RRT by email on 5 September 2011 (CB 101) that, unfortunately, he was not able to provide further documents in relation to his claims. The applicant said he had tried his best to obtain documents he mentioned at the hearing and otherwise referred the RRT to a link to the UN website. The applicant stated that his parents had been receiving threats in the course of their trying to obtain documents for the applicant.
The RRT expressly said that it had considered, at [61], the applicant's explanation for why he was unable to provide it with further evidence. The RRT did not accept that the applicant's parents had received threats.
Mr Turner's affidavit purports to annex evidence 'included' in the email from the applicant to the RRT, which appears at page 101 of the Court Book. The country information annexed to the affidavit was not in fact attached to the email, as is apparent from the Court Book. The applicant provided the RRT with a link, as follows: The country information annexed to the affidavit of Mr Turner purports to be the country information one might be able to navigate their way to, by first clicking the above link.
The country information annexed to Mr Turner's affidavit comprises a report concerning the issue of accountability for alleged human rights violations. The applicant referred the RRT to the link on the basis of its claimed relevance to his inability to provide documents in support of his claim about the acquisition of part of his family's land for building a road.
The RRT was plainly aware of the email at page 101 of the Court Book. It referred to it at [61], in the context of rejecting the applicant's explanation as to his inability to provide documentary evidence. There is no evidence as to whether the RRT did or did not refer to the country information by following the link provided to it by the applicant, and the applicant bears the onus of establishing jurisdictional error: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67].
The RRT did not have to specifically refer to the country information in its reasons, particularly having regard to its lack of relevance to the applicant's circumstances. The RRT is not obliged to refer in its reasons to every piece of evidence or every contention by an applicant (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ). It is a matter for the RRT the independent information to which it has regard and the weight it gives any such information (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). However in any event the RRT dealt with the matter to which the country information was said to be relevant (being the applicant's inability to provide documents). No jurisdictional error is demonstrated.
Consideration
Section 414(1) of the Migration Act provides:
subject to subsection (2), if a valid application is made under section 412 for review of an RRT–reviewable decision, the Tribunal must review the decision.
As part of this review, the Tribunal must consider all relevant evidence or statements given or made by the applicant.
The Tribunal states in its reasons at [50][8]:
The applicant submitted country information regarding the current situation in Sri Lanka and politics in Sri Lanka. The Tribunal gave the applicant a further two weeks to provide the evidence he referred to during the hearing and advised the applicant if he experienced any delays or problems obtaining this evidence, to contact the Tribunal…
[8] CB119
On 5 September 2011, following an extension of time to do so, the applicant provided to an officer of the Tribunal by e-mail an explanation of the problems he was having in furnishing documentary evidence in support of his claims[9]. The e-mail relevantly stated:
[9] CB 101
Dear Madam,
Thank you very much kindly for extending the time on two occasions on my request.
I have tried my best in several ways to obtain the documents with I mentioned in the interview. According to the information I received from my parents and trustworthy sources, Because of the allegation from the international community including united state of America and United Kingdom against the government on Human disappearance and political retaliation ETC, The secretory [sic] general of the united nations has appointed a panel of expert to investigate human right violation in Sri Lanka the government is using its power to destroy every single reports and records against it.
Please check the Link -- that my parents started getting treats [sic] again from police and locals as they are trying to get me those documents. The police has treat my parents that do not try to dig out the history again otherwise you all will be sorry for it.
So unfortunately I am unable to provide mentioned documents in related to my claim. I honestly believe that you will consider the information I have provided you and the effort that I have taken further to convince you my situation.
I do appreciate the opportunity you have given me and as I mentioned above the extension of time.
Thank you very much
I surmise that the link referred to in the e-mail was a hyperlink to a web page, the address of which was given in that hyperlink. The Tribunal officer would presumably have had the opportunity to click on the hyperlink in order to see what was located on the web page. Assuming a paper copy of the email was provided to the presiding member of the Tribunal (which I infer it would have been as it is located on the Tribunal file) the presiding member could have typed in the internet address in order to check the contents of the web page.
I accept from the affidavit of Mr Turner that the documents attached to his affidavit (together with a much longer document) were located on the web page to which the link was provided.
The applicant contends that, by giving the internet link, he had given the documents located on the website to which the Tribunal was directed as evidence in support of his claims for protection.
There is a question whether, by providing a link to an internet web page a person provides information to the Tribunal, in terms of what might be found on that web page, or whether the provision of an internet link is no more than an invitation to the Tribunal to undertake its own enquiry by following the internet link. The contents of an internet web page are not necessarily fixed and may change from time to time. The documents annexed to Mr Turner’s affidavit are representative of what might be found on the website but were not all of the documents to be found on that website. There was a much longer report which Mr Turner felt he need not provide to the Court. In my view, in circumstances where the Tribunal has not been referred to a particular document but is simply invited to follow a link to an internet web page and to find for itself what might be there and to gauge for itself what might be relevant, the Tribunal is not being provided with information but it being invited to inquire. The Tribunal is under no general duty to inquire.[10] However, in particular circumstances the Tribunal may come under a duty to make an obvious inquiry which could be easily made and which might be determinative of the issue to be resolved by the Tribunal[11].
[10] Minister for Immigration v SZIAI [2009] HCA 39 at [16]-[24]
[11] Minister for Immigration v SZIAI [2009] HCA 39 at [25]
In the present case, the inquiry was obvious in that it was clear that the Tribunal was being invited to follow an internet link and to check the contents of the web page. The inquiry would have been simple to undertake, either by clicking on the hyperlink or by typing in the internet address. The inquiry could not, however, have been determinative in the review because the documents located on the web page were simply a general analysis of the human rights situation in Sri Lanka. The documents provided no support for the particular protection claims made by the applicant. Further, in my view, on a fair reading of the applicant’s e-mail, he was not inviting the Tribunal to make an inquiry in order to verify his protection claims. The purpose of the e-mail was to explain the applicant’s inability to provide documentary evidence of his claims. I infer that the applicant was representing to the Tribunal that it would have been unsafe for his parents to obtain the documents he sought, or possibly to allege that any incriminating documents would have been destroyed by the Sri Lankan authorities.
In any event, I find that the Tribunal did consider the applicant’s explanation for his inability to obtain documentary evidence. At [61] of its reasons[12] the Tribunal said:
The applicant raised for the first time problems his family experienced over the road next to their house. The applicant suggested that the issues his family faced was directly relevant to their political opinion. The Tribunal found the applicant’s evidence regarding this particular claim to be vague, confusing and lacking in detail and for this reason it is not apparent to the Tribunal what the exact issue is, who was involved and whether it has been resolved. The applicant volunteered to provide the Tribunal with evidence in relation to this dispute however to date the Tribunal has not received any documents in support of this claim. The Tribunal has considered the applicant’s explanation for why he has been unable to provide the Tribunal with this further evidence. However, the Tribunal does not accept that the applicant’s parents have received threats from the police and locals because they were trying to get these reports or that the government has destroyed them. The Tribunal notes that the applicant referred to court documents and papers relating to when his family went to the police in relation to this matter and claimed in the hearing that his family had copies of everything. The Tribunal therefore does not accept the applicant’s claims regarding this particular road dispute.
[12] CB 122
It is plain that in rejecting the applicant’s explanation, the Tribunal had regard to the applicant’s e-mail providing that explanation. It is unclear whether the Tribunal took the trouble to follow the internet link proffered. However, on the state of the evidence I am unwilling to find that the Tribunal did not do so. Whether it did so or not, the Tribunal did not accept the applicant’s explanation.
I find that the applicant has failed to establish a case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 20 April 2012
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