SZQVH v Minister for Immigration and Citizenship
[2012] FCA 1147
•22 October 2012
FEDERAL COURT OF AUSTRALIA
SZQVH v Minister for Immigration and Citizenship [2012] FCA 1147
Citation: SZQVH v Minister for Immigration and Citizenship [2012] FCA 1147 Appeal from: SZQVH v Minister for Immigration and Citizenship [2012] FMCA 246 Parties: SZQVH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 674 of 2012 Judge: PERRAM J Date of judgment: 22 October 2012 Catchwords: IMMIGRATION – Refugees – Refugee Review Tribunal – whether tribunal failed to consider relevant information – whether Federal Magistrate erred in affirming decision of Tribunal Legislation: Convention relating to the Status of Refugees [1954] ATS 5
Protocol relating to the Status of Refugees [1973] ATS 7Date of hearing: 25 September 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 25 Counsel for the Appellant: The appellant was self-represented Solicitor for the First Respondent: K Hooper of DLA Piper Australia Counsel for the Second Respondent: The second respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 674 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQVH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
22 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 674 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQVH
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
PERRAM J
DATE:
22 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a national of Sri Lanka who is from Colombo. At the time of the hearing he was 28 years old. Following unsuccessful attempts to obtain legal representation he appeared for himself.
The present appeal arises from his efforts to secure a protection visa. He applied for such a visa on 31 January 2011. In fact the appellant had arrived in Australia some years before on 8 June 2006. At that time he had been granted a student visa (TU-562). This was renewed six times and the final visa expired on the same day that he applied for the protection visa, that is, 31 January 2011. During the time at which he held student visas the appellant obtained a Diploma in IT (Networking) (in 2008) and an Advanced Diploma in Network Security (in 2010).
Whilst his application for protection visa was being processed he was granted, in the usual way, a bridging visa (Class A).
The appellant’s entitlement to a protection visa hinged upon his persuading the Minister’s delegate that he was a person to whom Australia owed protection obligations under the Convention relating to the Status of Refugees [1954] ATS 5 and the Protocol relating to the Status of Refugees [1973] ATS 7. This, in turn, directed attention to whether he satisfied the definition of a ‘refugee’ in Article 1(A)(2) of the Convention. This required him to prove, to the satisfaction of the delegate, that he had a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’. To discharge this obligation the appellant accompanied his application with a statutory declaration which made plain that he sought refugee status on the basis of political opinion together with his family’s political status. His contention was that he was, or at least had been, a supporter of the United National Party (‘UNP’). The delegate did not expressly find whether the appellant had been a member of the UNP. But he did find, based on information in his possession about Sri Lanka, that the only violence involving the UNP in the 2010 elections had been an isolated event involving the burning down of a UNP Member of Parliament’s house. It rejected, therefore, the plausibility of the appellant’s contention that, as a member of the UNP who had been out of Sri Lanka for four and a half years, he had a well-founded fear of being persecuted by reason of his membership of the UNP. The delegate was fortified in this conclusion by the appellant’s long delay – nearly five years – in applying for a protection visa.
The appellant then sought, as was his right, a full review of this decision by the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed the decision of the delegate and the appellant sought review of that decision in the Federal Magistrates Court: SZQVH v Minister for Immigration and Citizenship [2012] FMCA 246. It is from that decision, which detected no error in the Tribunal’s approach, that the appellant now appeals.
The issue in that appeal turns upon events flowing from the hearing conducted by the Tribunal on 26 July 2011 to which the appellant was invited and at which he attended.
During the course of the hearing two relevant events occurred. The first was that the appellant sought to put on evidence about the current situation in Sri Lanka and about politics in Sri Lanka. This was recorded at [50] in the Tribunal’s reasons, as was its decision to grant to him two weeks to gather the material and its indication that it would look favourably upon any application for an extension of that period which might subsequently be sought. So far as it is relevant [50] reads as follows:
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 his evidence, to contact the Tribunal and it will consider providing him an extension of time to submit this evidence.
The second event concerned evidence given by the appellant about problems his family had experienced relating to a road next to his family’s house. There had been some form of dispute which had ultimately involved the police and the generation of court documents. The Tribunal regarded the account given by the appellant about this episode as vague so that it was ‘not apparent to the Tribunal what the exact issue [was], who was involved and whether it [had] been resolved’: [61]. During the discussion of the issue which took place at the hearing, the appellant volunteered to provide the Tribunal with documents about the dispute.
These two separate events therefore generated a possibility that the appellant would put on additional material after the hearing. The material was divided into two categories: (a) information about the situation and the political position in Sri Lanka; and (b) documents relating to the road episode. The material in (a) was subject to an extendable two week timeframe; that in (b) does not appear to have been subject to such a limit.
On 8 August 2011 the appellant sought an extension of time to submit the documents. This request was not couched in language which distinguished between the information referred to in (a) or (b). The Tribunal acceded to the request and granted a two week extension to 22 August 2011 again without distinguishing between whether what was involved was the documents in (a) or (b). A subsequent extension was sought and granted to 5 September 2011.
On 5 September 2011 the appellant sent the following email to the Tribunal:
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 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 --
Besides 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 [sic] 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 to 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.
That you very much.
Regards
[name provided]
The second last paragraph made clear that the appellant was not putting before the Tribunal the documents mentioned during the hearing (‘So unfortunately I am unable to provide mentioned documents in related to my claim’).
The large paragraph which preceded the reference to the hyperlink was an explanation for his inability to provide the documents (whether going to the situation in Sri Lanka or the road episode). The explanation was that the Government of Sri Lanka was using its power to destroy ‘every single reports and records against it’.
It is not clear whether the information about the situation in Sri Lanka would have fitted that description, i.e., of being a document or report against the Government but that need not be determined (nor need it be resolved whether the documents relating to the road episode bear a similar character).
What is important for present purposes is the explanation proffered for why the Government was intent on the destruction of incriminating material. The reason for this was the inquiry which had been launched by the Secretary-General of the United Nations into the Government’s crushing of the long-running Tamil insurgency. The document appearing at the link consisted of an html file which contained hyperlinks. The initial page consisted of a brief statement reporting the Secretary-General’s convening of a panel of experts to investigate the events surrounding the ending of the civil war and the fact of it having delivered its report. Beneath that there were five further links as follows:
Executive Summary of the report of the Panel of Experts
Full Report of the Panel of Experts
Terms of reference concerning submissions to the Panel
Terms of reference (Sinhala translation)
Terms of reference (Tamil translation)
The Tribunal treated the email in which this link was enclosed as relating to documents promised by the appellant in relation to the road episode. This is apparent from [61] where, after referring to the appellant’s statement that he would provide documents going to the road incident, the Tribunal went on to say:
…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 not been able 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.
Since the email of 5 September 2011 contains references to the difficulties experienced by the parents in obtaining the promised documents it must, in my opinion, be that email to which the Tribunal is referring.
The problem may now be seen in clearer outline. The appellant contends the Tribunal failed to have regard to the materials appearing at the web-link.
Before the Court below it was argued that the Tribunal had failed to consider the information contained in the documents at the link. The learned Federal Magistrate concluded that:
1.the email of 5 September 2011 was an explanation proffered for why he could not produce documents: at [13];
2.the Tribunal took account of this explanation: at [20];
3.his Honour was unwilling to find that the Tribunal had not inspected the documents situated at the link: at [20];
4.the Tribunal might have come under a duty to make an obvious inquiry which might be determinative of the issue which was before it: at [17]-[18]; but
5.even assuming that to be so, the link merely contained a general analysis of the human rights situation in Sri Lanka and as such did not have that quality: at [18].
I can discern in this approach no error. The executive summary of the Panel of Experts examined the events which occurred when the Sinhalese controlled government crushed the Tamil insurgency. The contents of the report describe human rights violations of a very significant order by the Government against the Tamils and also by the Tamils. It does not speak to any kind of political violence within the Sinhalese majority about the position of the UNP. Even if the Tribunal had come under an obligation to examine the material at the link, it provided no assistance to the appellant’s claim of persecution.
In any event, it was not used by the appellant for that purpose. Its intended purpose was to explain why he had not produced the documents which he had promised to provide in relation to the road episode. I do not think that a consideration of that explanation required the Tribunal to examine the report of the Panel or its Executive Summary unless it was going to reject the suggestion that the Government was destroying evidence against itself. But the Tribunal did not reject the appellant’s explanation for that reason. It rejected it because the explanation was not able to explain why the appellant had not been able to provide court documents about the road episode which were in the possession, not of the Government, but of his parents. It reasoned this way at [61]:
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.
The document at the link was irrelevant to this line of reasoning.
Even if I were of the view that the learned Federal Magistrate had erred, I would still dismiss the appeal. It was for the appellant to make good his case and, as it was developed, he did not prove that the Tribunal had not inspected the document at the link. The learned Federal Magistrate was unwilling to find that the Tribunal had not looked at the link; that is, it could not be satisfied that the appellant had discharged the burden which lay upon him.
The appellant sought to rebut that proposition by pointing to the absence of any reference to the report in the Tribunal’s reasons. This I accept but, ultimately, I do not think it is persuasive. The principal reason for this is that the Tribunal rejected the explanation because the parents had the documents, not because there was any doubt about the report. It was not mentioned because it was not relevant. Accordingly, I do not think that the appellant succeeded in proving that the contents of the link were not examined.
The appeal must be dismissed with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 22 October 2012
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