SZKUV v Minister for Immigration - [2008] FMCA 326

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUV & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 326

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – whether breach of s.424A of the Act – whether material supplied by applicant constitutes “information that would be the reason or part of the reason” for affirming the delegate’s decision – whether procedural unfairness in conducting review in the absence of the applicants – “serious harm” under s.91R of the Act – whether failure to consider alleged harm to the non-applicant daughter constitutes serious harm to the applicant parents.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 426, 426A, 474

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306
SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1
NABEv Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263
Craig v South Australia (1995) 184 CLR 163
VTAO v Minister for Immigration and Indigenous Affairs [2004] FCA 927
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Abebe v Commonwealth (1999) 197 CLR 510
Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489; (
VDAU v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 32
Minister for Immigration & Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; 215 ALR 733
VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60

First Applicant:

SZKUV

Second Applicant:

SZKUW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1981 of 2007

Judgment of:

Orchiston FM

Hearing date:

6 February 2008

Date of Last Submission:

6 February 2008

Delivered at:

Sydney

Delivered on:

20 March 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Ms Nolan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Application filed 27 June 2007 and the Amended Application filed 2 November 2007 are dismissed.
The Applicants pay the First Respondent’s costs fixed in the sum of $3,900 payable within four (4) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1981 of 2007

SZKUV

First Applicant

SZKUW

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) signed on 7 May 2007 and notified to the applicant by letter dated 24 May 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a protection visa to the applicant.

Background

The first named applicant was born on 27 September 1967 and was aged 39 years at the time of his application for a protection visa. Both before the Tribunal and this Court, the first named applicant appeared on behalf of his wife who is included in the application. For convenience, the first named applicant will be referred to as “the applicant” in these proceedings.
The second named applicant, the wife of the applicant, was born on 14 December 1968 and was aged 38 years at the time of her application for a protection visa.
The applicants claim to be nationals of the People’s Republic of China.
The applicants arrived in Australia on 7 October 2006 on Chinese passports issued in their own names, travelling on Visitor sub class 679 visas.
The applicants lodged an application for Protection (Class XA) visas on 20 November 2006 on the basis that they faced persecution in China due to breaching the government’s one child policy. They claimed that the birth control committee has harassed them about having a second child without government permission (Court Book (CB) 30–31).
On 2 February 2007 the delegate refused to grant the applicants’ protection visas on the basis that they were not persons to whom Australia had protection obligations under the Refugees Convention (see Legislative framework) (CB 41-48).
On 10 March 2007 the applicants applied to the Tribunal for review of the delegate’s decision (CB 49 – 52).
The applicants’ son and daughter, aged respectively 15 and 7 at the time of the application for the protection visas, live in China.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 20 March 2007, the Tribunal sent a letter to the applicants inviting them to appear before it on 3 May 2007 to give oral evidence and present arguments (CB 53–54).
The applicants did not appear at the Tribunal hearing. Pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

The applicant’s claims and evidence (CB 64 – 65)

The Tribunal noted that only the applicant made specific claims under the Convention and that his wife relied on her membership of his family.
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 64 – 65), including that:
·the applicants had two sons in China, a five year old and a seven year old. The elder son died in 1996 by drowning in a fish pond.
·the applicants decided to have another child in 1998 after the applicant’s wife had a secret operation to reverse her sterilisation. The second applicant became pregnant and gave birth to a daughter in May 1999.
·during the pregnancy, officials visited the applicants informing them that it was illegal to have another child without a certificate of permission. They fled from their home to avoid persecution from the birth control committee (the committee).
·the committee went to their house and smashed furniture and removed valuables. They were frightened to return home. They had to spend a lot of money to repair the house.
·after the birth of their daughter in May 1999, the applicants had difficulty registering her in their household registration book and were visited several times by the committee who asked the applicant’s wife to undergo a sterilization. They eventually had to pay a fine for giving birth without permission.
·the daughter suffered discrimination and mistreatment and was called ‘black kid’ by her classmates.
·The applicants were extremely disappointed about the government’s one-child policy which violates people’s basic human rights.

The Tribunal’s findings and reasons (CB 65 – 66)

The Tribunal found that there was nothing in the applicant's claims which would provide a basis to conclude that there is a real chance he would suffer serious harm if he were to return to China for the following reasons:
·his claims all have to do with the past and there is nothing in the information provided by the applicant to suggest that the Chinese authorities have any continuing interest in him or his wife, or that there is any issue still unresolved between them and the Chinese authorities
·there is nothing to indicate in the information that the authorities would have a reason to target the applicant or his wife, or to punish them or in any other way harm them if they return to China
·there is simply nothing in the information to indicate that the applicant or his wife will be singled out for any form of human rights abuse in the future
·the applicants’ daughter is not an applicant in this case and the alleged harm which she is said to have experienced (some teasing from her school mates as a result of being a 'black child' born without permission) is not harm which would be suffered by the applicant or his wife if they were to return to China.
The Tribunal concluded that the information provided by the applicant was not sufficient to allow it to be satisfied that there was a real chance that he would suffer any form of harm if he were to return to China. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to China now or in the reasonably foreseeable future and was therefore not satisfied that he is a refugee.

The proceedings before this Court

The applicants filed the application in this Court on 27 June 2007 setting out 2 grounds of review of the Tribunal’s decision. An amended application was filed on 2 November setting out one ground of review.
The applicant appeared in person before the Court on 6 February 2008 with the assistance of a Mandarin interpreter. Ms Nolan of counsel appeared for the first respondent.
Whilst the Applicant’s Outline of Submissions, filed 2 November 2007, (the applicant’s written submissions) states at paragraph 12 that “There is one ground of review [apparently ground 1 of the amended application]. Leave will be sought to amend the application accordingly’, no such application was in fact made to this Court. Given the applicants were not legally represented at the hearing, in fairness to them, the Court has considered all grounds raised.

Grounds of the application

The two grounds of the application are:
(1)The RRT decision was affected by jurisdictional error in that the Tribunal failed to invite the applicant to comment on adverse information. The Tribunal breached s.424A of the Migration Act.
(2)The Tribunal referred to the claimed difficulties experienced by the applicant's daughter in China, however the Tribunal did not consider such claim because the daughter is not an applicant and the alleged harm which she has experienced is not harm which would be suffered by the applicant or his wife if they return to China. The Tribunal failed to put this information to the applicant and invite him to comment on it.

Grounds 1 and 2 of the application.

Ground 1 of the application is not particularised, however, it would appear that ground 2 provides particulars for ground 1 and hence they are dealt with together.
In considering the application, the Tribunal stated (at CB 64) that it had regard to the Department’s file, which would include the application for protection visas (CB 1-29) and the accompanying written statement from the applicant (CB 30-31), and also had regard to the material referred to in the delegate’s decision (CB 41-48).
In the applicant’s statement, the only relevant reference to his daughter is:
My daughter suffered discrimination and mistreatment. Until the day we came to Australia, she was still called “black kid’ by her classmates (the relevant reference) (CB31).
The information thus complained of by the applicant for not being the subject of a s.424A letter, consisted of the applicant’s own prior written statement.
As observed by the High Court in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [15] to enliven s424A of the Act:
Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal's obligation is limited to the written provision of "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review" [emphasis added].
The High Court in SZBYR has thus made it clear that the proper meaning of the word “reason” in s.424A (1) (a) must be discerned in the particular case. Similar to the present case, the High Court had to consider whether the relevant parts of the appellant’s statutory declaration were “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”:
... the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s.424A(1)(a) is to be determined in advance – and independently – of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s.36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review at [17] [emphases added].
The short answer to all these points is that, on the facts of this case, s.424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed…at [21].
Applying this same reasoning to the present case, the relevant passage in the applicant’s written statement could not be said to constitute "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review", and hence s.424A of the Act was not engaged.
It is also clear that “information” under s 424A does not include the Tribunal’s subjective appraisals, thought processes or determinations: SZBYR at [18].
Accordingly, for the reasons stated above, Grounds 1 and 2 of the application are rejected.

The applicant’s affidavit

The applicant’s affidavit filed in support of the application states at paragraph 1:
I would like to apply for judicial review of the RRT’s decision on my application for a protection visa because the RRT’s decision contains jurisdictional error. Due to the inconvenience of the transport from my residential place to the RRT, I missed out the RRT hearing. RRT failed to conduct any further assessment after I failed to attend the hearing.
Before proceeding to make its decision, the Tribunal fully satisfied itself that the following steps had been taken:
·advising the applicants that having considered all the material before it relating to their application, it was “unable to make a decision favourable on this information alone”;
·inviting them to a hearing to give oral evidence and present arguments;
·advising them that if they failed to attend the hearing and a postponement was not granted, it may make a decision on their case without further notice;
·sending the letter to the applicants at the address for correspondence indicated in their review application (where the applicants provided no details of an authorised recipient and gave no telephone contact details);
·noting that the letter was not returned unclaimed and no written response to the hearing invitation was received; and
·checking to see:
·if a response had been received but not caught up with the applicants’ file,
·whether the invitation had been sent to the applicant’s most recent address for correspondence, and
·if the Department’s movements database confirmed that the applicants were still in Australia (CB 64).
There is no issue that the applicants did not attend the hearing. There is further no issue that the applicant did not bring any concerns about “the inconvenience of the transport from my residential place to the RRT”, to the attention of the Tribunal, nor that he sought an adjournment of the hearing, or otherwise attempted to notify the Tribunal of any problems in attending on the day (Transcript, 6/2/08, p.4).
The applicants were therefore clearly on notice that the information they had so far provided did not suffice to ground successful applications for protection visas. As stated in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16]:
The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the appellant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application.
In these circumstances, I consider that the Tribunal was entitled to make its decision on the review pursuant to s.426A without taking any further action to enable the applicants to appear before it. I detect no procedural irregularity or procedural unfairness in this regard.
I also note that in comparable circumstances, where an applicant failed to attend for a Tribunal hearing, the Full Federal Court in SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 stated at [28] that:
The appellant had a full opportunity to appear and present his case. Accordingly, the Tribunal was entitled to proceed on the materials before it and was not required to investigate why the appellant had not appeared at the hearing.

Grounds of the amended application

The one ground of the application is:
The Tribunal erred in its application of “persecution” under s.91R of the Migration Act 1958.
Particulars:
a)The Tribunal found that harm experienced by the applicants’ daughter was not harm which would be suffered by the applicants if they were to return to China.
i)That finding assumes that harm to the applicants’ daughter is not relevant to the question of harm suffered by the applicants if they were to return to China.
b)The Tribunal construed too narrowly what is meant by harm “to the person” as required by subpara 91R(1)(b) of the Migration Act.
c)Consequently, the Tribunal failed to address the possibility of the applicants suffering persecution in China as a consequence of their daughter’s mistreatment.
d)Accordingly, the Tribunal fell into jurisdictional error.

Ground 1 of the amended application

As stated above under grounds 1 and 2 of the application, there is only the one relevant reference to harm to the daughter made by the applicant in his claims in the protection visa application.
In his written submissions, the applicant submits that the claim that the applicants would suffer persecution in China on account of their daughter’s mistreatment is “squarely raised” on the material before the Tribunal and points to the decision in NABEv Minister for Immigration & Multicultural & Indigenous Affairs(No 2) [2004] FCAFC 263 at [58] in support of this proposition:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The applicant submits that the Tribunal dismissed his claim by denying that the harm experienced by the daughter would be harm suffered by the applicants. In this regard the Tribunal stated (at CB 66) that:
The Applicant refers to difficulties being experienced by his daughter, who is said to suffer some teasing from her school mates as a result of being a 'black child' born without permission. However the Applicant's child is not an applicant in this case and the alleged harm which she has experienced is not harm which would be suffered by the Applicant or his wife if they were to return to China. Having considered this aspect of the Applicant's claims the Tribunal is not satisfied that it provides evidence of any future harm to him or his wife (the relevant passage).
The applicant submits that in the relevant passage the Tribunal made a false assumption that the harm experienced by the child is not harm experienced by the parent. More importantly he asserts that the Tribunal has construed the notion of “persecution” under s.91R of the Act, and in particular, the notion of “harm to the person” too narrowly. The applicant relies on the remarks of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179, [14] that:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The applicant asserts that while the question of the treatment likely to be suffered by the applicants on return to China, as a consequence of the treatment of their daughter, amounts to “persecution” is one of fact to be determined by the Tribunal on the merits of the case, the Tribunal is still required to apply the correct tests and ask the correct questions in arriving at its determination: VTAO v Minister for Immigration and Indigenous Affairs [2004] FCA 927 at [67] per Merkel J. In this regard he claims that the Tribunal erred in its construction of harm “to the person” under s.91R in that infliction of serious harm on a child is capable of constituting the infliction of serious harm on the parent of that child. Accordingly the applicant asserts that the Tribunal failed to turn its mind to whether harm to the applicants’ daughter was relevant, notwithstanding that she was not an applicant in the case, and that the harm was not experienced directly, or in the first instance by the applicants.
In support of the applicant’s contention for this broader construction of “serious harm”, he refers by analogy to s.91R(2)(d) which provides for the “denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist” as an instance of serious harm. The applicant maintains that this instance of harm is “broad enough to include treatment which results in harm to the applicant (but may not be directed at the applicant)”.
In summary, the applicant contends that the concept of harm “to the person” encompasses harm experienced, as in the present case, through the treatment of the applicants’ children; that the Tribunal failed to recognise that the experiences of the applicants’ daughter could constitute serious harm to the applicants themselves for the purposes of s.91R(1); and that the Tribunal fell into jurisdictional error by constructively failing to exercise its jurisdiction in relation to the claim that the applicants would suffer persecution if they were to return to China “as a consequence of the mistreatment of their daughter”.
Firstly, the only relevant reference in the applicant’s claims to alleged harm suffered by the daughter does not extend to a claim that the applicants would in any way thereby be harmed or suffer persecution for reason of the harm claimed to be suffered by the daughter (teasing at school). The applicant’s statement in this respect raises no explicit or imputed causal nexus between harm to the daughter and harm to the applicants. Rather, the harm claimed by the applicant in his written statement is very clearly articulated and relates directly to the consequences claimed to have been suffered by him and his wife on account of their breach of the one child policy (namely damage to their furniture; loss of valuables; having to leave their home and go into hiding, difficulties in registering the daughter’s birth and having to pay a fine).
I do not accept therefore the applicant’s submission that the (unarticulated) claim of resultant or consequential harm was one made “squarely” on the material before the Tribunal. The Tribunal was thus not required to determine whether the alleged harm to the daughter constituted persecution to the applicants under s.91R (1).
I accept the submission by the first respondent that it cannot be said that the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts which it had found and therefore there could not be said to be a constructive failure to exercise its jurisdiction: (Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [24]-[25, [89, [95]). As further relevantly observed by the Full Court in NABE at [62]:
Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made… …Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112 at 114 [1]:
‘Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
It is also well settled that a decision-maker is not required to make the applicant’s case for him or her: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73].
Indeed, an applicant will have to supply the relevant facts of his or her case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Secondly, and contrary to the applicant’s submission, the Tribunal makes no finding in regard to any claimed harm (from teasing at school) suffered by the daughter. It specifically refers in this respect to the “alleged” harm which the daughter “is said” to suffer.
The applicant’s contention that the Tribunal adopted a too narrow construction of harm to the person in s.91R (1) (b) on the basis that serious harm to a child may constitute the infliction of serious harm to the parent is thus misconceived and not borne out from the Tribunal’s reasons for decision. At no point does the Tribunal make any finding of harm to the daughter, let alone that any alleged harm to her might amount to serious harm. The applicant’s contention that the Tribunal failed to take into account the consequential serious harm to the parents thus simply does not arise.
The applicants are seeking, in effect, a construction of ‘serious harm” in the circumstances of the case which extends beyond direct harm to derivative or vicarious harm to affected third parties. In this context, so far as is relevant, s.91R(1) specifically states that:
For the purposes of the application of the Act and the regulations to a particular person… [emphasis added].
Whilst it may be that harm to a related third party could constitute harm to “the particular person” in the circumstances of a particular case, a fair reading of the Tribunal decision in the instant case indicates that the Tribunal clearly considered that on the material before it any alleged harm to the daughter did not constitute harm flowing to the applicants.
Thirdly, the relevant passage must be read in its proper context and not treated in isolation as the applicant has sought to do. It follows directly after the Tribunal has set out its findings in regard to the applicant’s claims, namely that these claims all relate to the past, that there is “nothing to suggest” that the Chinese authorities have “any continuing interest” in him or his wife, nor that there is “any unresolved issue” between them and the authorities, nor that there was “any reason” the authorities would target them, or to punish them or “in any other way” harm them, nor that they will be singled out “for any form” of human rights abuse in future (CB 66). These findings by the Tribunal are made in the broadest of senses and indicate that the Tribunal fully considered the available evidence before reaching these conclusions.
It cannot be said from this that the Tribunal did not very carefully consider the issue of whether the applicants would be subjected to persecution pursuant to s.91R and in particular to persecution involving “serious harm”.
If the Court be wrong in its above reasoning, I have considered whether the Tribunal committed the error as alleged by the applicant that the relevant passage should be read as a finding by the Tribunal that the harm suffered by the daughter is not capable of constituting harm suffered by the applicants.
Section 91R sets out three necessary ingredients at s.91R(1)(a), (b) and (c), each of which must be satisfied for the Convention to apply. So far as is relevant, s.91R provides:
Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Whether conduct amounts to persecution is a matter of fact and degree for the Tribunal to determine in its fact finding role: (VTAO at [67]; Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489; (2004) 208 ALR 229 at [23]-[24]; VDAU v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 32 at [24]; and Minister for Immigration & Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; 215 ALR 733 at [51]-[52]).
The Court was referred to various cases on what constitutes serious harm under s.91(2), including to the following observations of the High Court in VBAO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 60:
This appeal requires attention to that aspect of persecution dealt with in part (b) of s.91R(1), namely, the necessity that the persecution "involves serious harm to the person". In the joint judgment in Guo and under the heading "Persecution", the following was said of that notion [4]:
“In Chan [v Minister for Immigration and Ethnic Affairs][5], Mason CJ referred to persecution as requiring 'some serious punishment or penalty or some significant detriment or disadvantage' (emphasis added). One other statement of his Honour in that case is also relevant to this appeal. His Honour said [6]:
'Discrimination which involves interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment for escape or for return to one's place of residence amounts prima facie to persecution unless the actions are so explained that they bear another character.’
In the same case, Dawson J said [7] that:
'there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution ... Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity’” (emphases added).
It is trite to observe that the six parts (a)-(f) of s.91R(2) should be considered together; they all take their colour from the specification of "serious harm" in the opening words of the sub-section … The term "significant" qualifies the physical harassment, physical ill-treatment and economic hardship spoken of in parts (b), (c) and (d) of s.91R(2). The consequence of an action or state of affairs spoken of in parts (d), (e) and (f) must be one which "threatens the person's capacity to subsist" (at [19]).
The various instances of serious harm set out in s.91R (2), as well as the examples given in VBAO and Das, point to that term being related to “significant” inroads into fundamental human rights, including risks to life, other significant physical ill-treatment or harassment, or significant economic hardships or other actions such as denial of basic services that threaten a person's capacity to subsist. Such a characterisation of serious harm is also consistent with the purpose of s.91R, which determines the circumstances in which Australia has protection obligations under the Convention to those suffering persecution through serious harm.
I consider that a fair reading of the Tribunal decision demonstrates that the Tribunal correctly set out the relevant law in regard to s.91R(1) and the inclusive instances of ‘serious harm’ in s.91R(2) (at CB 63); that it approached the task required of it by inquiring as to whether the particular harm claimed by the applicant “would provide a basis to conclude there is a real chance he would suffer serious harm if he were to return to China” (CB 65); assessed the harm claimed by the applicant; and (taking the case at its highest) considered whether the claimed harm suffered by the daughter was harm which would be suffered by the applicants if they returned to China (CB 66); understood and correctly applied s.91R(2) in reaching its conclusions that “the information provided by the applicant is not sufficient to allow the Tribunal to be satisfied there is a real chance that he would suffer any form of harm if he were to return to China” [emphases added] (CB 66). I consider that these findings were open to the Tribunal on the evidence and material before it and that it performed the task required of it in accordance with law.
As stated earlier in this judgment, the Tribunal is not required to make the applicant’s case for him. It was for the applicant to put whatever evidence or argument he wished to the Tribunal in regard to claims amounting to serious harm for its consideration.
Having thus properly considered the evidence and material before it, the Tribunal in this case was thus under no obligation to conduct any further investigation before concluding that the applicant did not have a well-founded fear for a Convention reason.
For the reasons stated above, I detect no jurisdictional error on the part of the Tribunal. Accordingly, Ground 1 of the amended application is rejected.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 20 March 2008