SZOSP v Minister for Immigration and Citizenship (No. 2)
[2011] FCA 586
•2 June 2011
FEDERAL COURT OF AUSTRALIA
SZOSP v Minister for Immigration and Citizenship (No. 2) [2011] FCA 586
Citation: SZOSP v Minister for Immigration and Citizenship (No. 2) [2011] FCA 586 Appeal from: SZOSP v Minister for Immigration & Anor [2011] FMCA 33 Parties: SZOSP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 137 of 2011 Judge: GREENWOOD J Date of judgment: 2 June 2011 Catchwords: PRACTICE AND PROCEDURE – consideration of an appeal from a decision of the Federal Magistrates Court of Australia on the grounds that the Refugee Review Tribunal failed to apply the correct test of serious harm when determining whether the appellant held a well‑founded fear of persecution for a Convention reason and the Federal Magistrates Court published reasons inconsistent with the orders made Legislation: Migration Act (1958) Cth, s 91R Cases sited: SZOSP v Minister for Immigration and Citizenship [2011] FCA 558 – cited
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 233 CLR 1 - cited
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 - cited
Craig v South Australia (1995) 184 CLR 163 – cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – cited
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 - citedDate of hearing: 26 May 2011 Date of last submissions: 26 May 2011 Place: Sydney via video-link from Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 66 Counsel for the Appellant: The appellant did not appear Solicitor for the Respondents: The Australian Government Solicitor, Ms E Warner‑Knight
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 137 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOSP
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
2 JUNE 2011
WHERE MADE:
SYDNEY VIA VIDEO-LINK FROM BRISBANE
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The costs of the first respondent of and incidental to the appeal be paid by the appellant.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 137 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOSP
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE:
2 JUNE 2011
PLACE:
SYDNEY VIA VIDEO-LINK FROM BRISBANE
REASONS FOR JUDGMENT
Matters relating to the hearing of the appeal
This appeal was called on for hearing at 2.15pm on Thursday, 26 May 2011. The appeal had been listed for hearing at 10.15am on 4 May 2011. On 3 May 2011, the appellant attended the Chambers of Dr Alex Aristoff and presented to Dr Aristoff exhibiting symptoms of severe headache, hypertension and reaction to stress. Dr Aristoff provided the appellant with either a letter or a certificate dated 3 May 2011 in which he noted that the appellant exhibited these symptoms. In that certificate, Dr Aristoff said that the appellant was unfit to attend Court from 3 May 2011 until 31 May 2011.
On 4 May 2011, in the course of the initial hearing of the appeal, the Court contacted Dr Aristoff by telephone to invite Dr Aristoff to elaborate on the circumstances which suggested to him that the appellant would be unfit to attend Court from 3 May 2011 until 31 May 2011.
Dr Aristoff advised the Court that he had seen the appellant at 12.19pm on 3 May 2011. She seemed anxious and depressed and exhibited high blood pressure 140/100. Her heart sounds were good and her chest was clear. She was “obviously shaking” and medication was prescribed for her described as Dosan tablets in a strength of 2mg per tablet to be taken whenever required. Dr Aristoff advised the appellant to consult him again “within the next couple of days”. Dr Aristoff thought that the appellant would need to be assessed by a psychologist or psychiatrist in the future in relation to her stress. Dr Aristoff confirmed that his expectation was that the appellant would see him within the next few days “so that we can just proceed with further treatment”. When asked what the position might be if the appeal was adjourned for a number of weeks until, for example, 26 May 2011, Dr Aristoff said: “If [the appellant’s] blood pressure settles down. If we manage to control her stressful reactions to the point that she is capable [of making] decisions or capable [of appearing] in court … I would be able to amend the certificate and just advise her that she’s fit to go back to court”.
Having regard to those matters, the Court adjourned the appeal so as to provide some weeks for the appellant to take the medication prescribed and further consult Dr Aristoff so as to properly engage with medical help to deal with the stress evident to Dr Aristoff. Since Dr Aristoff had advised the appellant to “get back to me probably within the next couple of days”, adjourning the appeal for slightly over three weeks, provided the appellant with some real time to deal with her symptoms of stress, anxiety and severe headaches.
These matters are addressed in SZOSP v Minister for Immigration and Citizenship [2011] FCA 558.
On 4 May 2011, the New South Wales Registry of the Federal Court wrote to the appellant to advise her that the matter had been adjourned until 2.15pm on Thursday, 26 May 2011. The Court advised the appellant that the matter would proceed to a hearing at that time. The appellant had been provided with written submissions on behalf of the first respondent, the Minister for Immigration and Citizenship, prepared by Ms Elizabeth Warner‑Knight, a solicitor employed by the Australian Government Solicitor. The appellant had filed submissions in support of the appeal on 29 April 2011. In the letter from the New South Wales Registry to the appellant on 4 May 2011, the appellant was also invited to file any further written submissions upon which she may wish to rely. She was also invited to contact the Registry of the Court should she have any questions she might wish to raise.
On 24 May 2011, the appellant again wrote to the Court and sent that letter to the Registry by facsimile in which she said this:
I am writing to inform you that I cannot attend the Court on 26 May 2011 because I am still not feeling well. In addition, according to the doctor’s certification I am unfit to attend court until 31 May 2011.
Sorry for the inconvenience caused.
Yours sincerely,
SZOSP
No mention is made in that letter of whether the appellant had seen within a few days of 3 May 2011 Dr Aristoff again or whether the appellant had consulted any other medical practitioner. No further letter or certificate arising out of any possible consultation was provided to the Court.
The New South Wales Registry of the Federal Court contacted Dr Aristoff to determine whether he would be available to receive a telephone call at 2.15pm on 26 May 2011 to advise the Court whether the appellant had consulted him again and whether the appellant was exhibiting the same, mitigated or exacerbated symptoms of severe headaches or any other condition. Dr Aristoff advised an officer of the New South Wales Registry that the appellant had not consulted him again. The appellant may have consulted another medical practitioner.
The matter was called on for hearing at 2.15pm on 26 May 2011. The appellant did not appear. The appellant was called by reference to the pseudonym by which these proceedings are known. In correspondence with the Court the appellant has signed her letters with her own signature but uses, in the reference line, the pseudonym SZOSP. In addition, arrangements had been made by the Court for an interpreter fluent in the Mandarin language to be available to assist the appellant notwithstanding that the appellant has fluent English skills. The interpreter advised the Court that she has not had any conversations with the appellant. The Court between 2:10pm and 2:20pm on that day made four attempts to make telephone contact with Dr Aristoff at his medical practice to ask him, in the forum of the Court, whether the appellant had consulted him at any time after 3 May 2011. The telephone calls were not answered.
The hearing of the appeal was adjourned from 4 May 2011 until 26 May 2011 in order to provide the appellant with an opportunity to take the prescribed medication and seek additional medical help whilst at the same time balancing the use of Court time and finding time in the Court calendar to list the matter for hearing without protracted delay.
Since the appellant simply relied upon the pre-existing certificate without any further elaboration upon steps taken since 3 May 2011 to deal with her problems and since the appellant had not otherwise responded to the letter from the New South Wales Registry, the Court was not willing to further adjourn the matter. Moreover, the hearing of the appeal from the Federal Magistrates Court of Australia raises questions of law framed in the appellant’s notice of appeal by her grounds of appeal in these terms:
1.The Tribunal misconceived the definition of “harm” set out in s 91 of the Migration Act.
2. The decision made by his Honour is contradictory with his reasons.
The hearing of the appeal involves the making of oral submissions in support of the appellant’s written submissions of 28 April 2011 (filed on 29 April 2011). The appeal, of course, does not involve the giving of evidence, cross‑examination, or any aspect of fact‑finding by this Court. In other words, the appearance before this Court by the appellant to support her grounds of appeal involves the appellant orally engaging with the Court on the grounds of appeal she has raised. The exchange in that sense is one between the appellant and the Court with responses from the first respondent. Whilst it is no doubt true that the hearing and resolution of the issues raised on the appeal are matters about which the appellant might or would be anxious (like all litigants), the questions she must address in her appeal are matters of law and, as is commonly the case, the appellant would be accommodated by being invited to remain seated at the Bar table to make any oral submissions she might wish to make assisted by the interpreter (or not) as she chooses.
Accordingly, having regard to all these considerations, the Court was not willing to further adjourn the hearing of the appeal simply on the basis of the appellant’s further letter of 24 May 2011 and embarked upon a hearing of the appeal.
The solicitor appearing for the first respondent relied upon her written submissions filed on 29 April 2011 and did not seek to elaborate upon them. Ms Warner‑Knight offered to read the submissions into the record but that step was not necessary. The Court also has the benefit of the appellant’s submissions dated 28 April 2011. No further submissions were filed in response to the Registry’s letter of 4 May 2011.
An interpreter fluent in the Mandarin language was available to assist the appellant. However, it should be noted that in the appellant’s application for a Protection (Class XA) Visa on the footing that the appellant claims to hold a well‑founded fear of persecution by reason of her political opinions should she return to the People’s Republic of China, the appellant at question 11 of the application form said that she speaks, reads and writes Chinese (Mandarin) and English. Moreover, at questions 36 and 37 of the application form the appellant said that she had from March 2004 to September 2005 attended Macquarie University in Sydney and obtained a Masters Degree in translating and interpreting. At question 40, the appellant said that from March 2008 to September 2009 she held the position of part‑time English teacher at the Jinan Judian Education Centre and from November 2007 to October 2009 the appellant held the position of English teacher at a body described as Shandong University Education Exchange Co. Ltd.
It can be seen therefore that the appellant has a high degree of fluency in the English language. Her handwritten statement by which she answers questions 42, 43, 44, 45 and 46 of the application form is written in clear fluent English handwriting and her submissions reflect that degree of fluency in the language.
These matters are mentioned in this context simply because the appellant’s capacity to orally engage with the Court seems to be quite pronounced and thus although she had the benefit of an interpreter available to her, the appellant would not be appearing before the Court constrained in a significant way by seeking to make her position clear entirely in reliance upon an interpreter.
The appeal
As noted at [12], this appeal is an appeal from a judgment of the Federal Magistrates Court of Australia dismissing an application for review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 1 October 2010 affirming a decision of the Delegate of the Minister for Immigration and Citizenship (the “Minister”) not to grant the appellant a Protection Visa under the provisions of the Migration Act 1958 (Cth).
Ground 1 of the appeal
By ground 1 of the appeal the appellant contends, as framed by her, that the Tribunal fell into error as it misconceived and thus mis‑applied the statutory notion of “harm” set out in s 91 of the Migration Act when assessing the appellant’s claim, on the facts, to hold a well‑founded fear of persecution for a reason mentioned in the Refugees Convention as amended by the Refugees Protocol as those two well known terms are understood. This contention was not raised before the Federal Magistrates Court and thus the appellant is not in a position to contend that the Federal Magistrate fell into error by failing to find error on this ground on the part of the Tribunal.
The content of the contention, based upon the appellant’s written submissions, is this. Section 91 of the Migration Act contains a definition of harm. The definition of harm set out in that section means not only direct physical injury but includes mental suffering giving rise to physical consequences. The appellant says that she was not only physically attacked but also subjected to harassment and intimidation which caused her to be fearful, frightened, upset and angry for a long time which, in turn, led to “a bad heart condition” and “severe insomnia” before coming to Australia on 13 January 2010. These matters caused her, she contends, to leave the People’s Republic of China (the “PRC”) and leave her family and her good job. She contends that she was “overwhelmed by such torment”.
The point of these factual matters is that the appellant contends that the Tribunal only focused upon her claims of physical injury and ignored the information she gave “during the hearing” concerning these other matters of harassment, torment and intimidation when assessing whether the appellant held a well‑founded fear of persecution.
The contention, put properly, is that because the Tribunal misunderstood the notion of harm for the purposes of the Migration Act, the Tribunal failed to apply the correct legal test of harm under that Act when determining whether the claims of the appellant as put to the Tribunal by her supported by whatever evidence or information the appellant put before the Tribunal, satisfied the Tribunal that the appellant held a well‑founded fear of persecution and thus the Tribunal fell into jurisdictional error in discharging the statutory review function under the Act.
The elements of s 91R of the Migration Act
Section 91R of the Migration Act provides that for the purposes of the application of that Act (and regulations made under that Act) 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 Convention reasons) unless the persecution involves “serious harm to the person” (s 91R(1)(b)) and, without limiting the notion of serious harm, a threat to the person’s life or liberty is an instance of serious harm (s 91R(2)(a)). Significant physical harassment of the person is another instance of serious harm (s 91R(2)(b)). Both of these instances of serious harm are instances of serious harm in addition to “significant physical ill‑treatment of the person” (s 91R(2)(c)). See generally VBAO v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 233 CLR 1.
The difficulty for the appellant in making ground 1 of the appeal good (apart from any a question of leave to rely upon a ground not previously agitated) is that the Tribunal did not reject or fail to be satisfied of the appellant’s claims on the ground that aspects of her claim to hold a well‑founded fear of persecution did not amount to “serious harm” as contemplated by s 91R of the Migration Act and nor did the Tribunal fail to consider the factual matters of harassment and intimidation put to it in documents and at the hearing by the appellant said to give rise to a fear in her of future threats to life or liberty or future physical harassment, thus involving contentions of serious harm and in consequence persecution for the purposes of s 91R(1) and (2).
The contentions identified in the appellant’s handwritten statement
The Tribunal conducted a hearing on 10 September 2010 from 9:00am until slightly after midday on that day. The appellant attended the hearing and was asked about aspects of her claims. At para 22 of the Tribunal’s reasons, the Tribunal notes the content of that handwritten statement attached to the appellant’s Protection Visa application. In doing so, the Tribunal noted these matters.
The appellant while working at the Jinan Judian Education Centre (the “Education Centre”) observed that a number of students in the age range 12 and 15 years appeared to be very tired. That was so because they also worked often six days a week undertaking 10 to 12 hour shifts in an illegal clothes factory. The appellant secretly visited the factory and observed that the workers were being abused and paid like slaves. The appellant brought the conditions of the children to the attention of the Education Centre, local government institutions and the police.
The Tribunal noted that the police told her that she and her family would have “big problems” if she kept talking about this matter. The Tribunal noted that from March 2009 the appellant began receiving threatening telephone calls and in April 2009 she was stopped in the street by persons dressed in civilian clothes and taken to the local police station.
As to that matter, the Tribunal noted the appellant’s contentions that she was kept for a few hours in a cell and then taken into a room where police and others questioned her for more than 10 hours and asked her whether she was a spy for Australia; during the questioning the appellant was prevented from going to the toilet or having a drink; at the end of the interrogation the appellant was told that if she did not want to stay in jail forever, she must stop talking about children’s slave labour to anyone and that this warning was the last warning she would be given. The appellant contended that she told the Department of Public Prosecutions (“DPP”) in the PRC about these matters. The appellant said that the Office of the DPP told her that they did not believe her assertions and would not register her claims. The Tribunal noted the appellant’s claims that “threatening phone calls” continued.
The Tribunal also noted the appellant’s claim that on 6 September 2009 as she was walking home in the evening, two people “threw her to the ground and struck her with sticks they were carrying and yelled abuse at her and told her to shut up”; with great difficulty the appellant managed to get home; she passed out; her mother took her to the hospital where she stayed for seven days. The Tribunal notes the contention that after discharge the appellant again went to the police. They did not accept her claims. The Tribunal also notes the appellant’s claim that “in the next couple of days [she] received a further phone call in which the caller said that, if she did not understand normal language, she should be prepared for death”.
The elaboration of the appellant’s contentions at the hearing before the Tribunal
At paras 24 to 54 of the Tribunal’s reasons, the Tribunal outlines the series of matters canvassed with the appellant at the hearing.
A reading of those paragraphs reveals that the matters recited in the appellant’s statement as noted at para 22 were discussed in some detail with the appellant. The Tribunal notes at para 32 that the appellant reported the situation concerning child labour to her supervisor at the Education Centre and the “Local Residential Committee” within the PRC responsible for the area where the factory was located and then, about a month later, to an organisation called the “Women’s Association”. At para 35, the Tribunal notes that in July or August 2008 the appellant reported her concerns to “Zhao Jia Cun Police Station” in the area of the factory and spoke with a male member of staff. The Tribunal notes that the appellant contended that the officer was “very impatient with her, telling her this was none of her business and asking her whether she wanted to get herself into trouble”.
At para 36, the Tribunal notes that in the early part of 2009 the applicant received threatening phone calls over the landline in her mother’s house where the appellant lived. Similar calls became “more frequent from March 2009”. The Tribunal notes that as to these threatening calls, the callers were male; sometimes the same caller; sometimes different; the message was similar on each occasion; and, the message in strident language told the appellant that these issues of child labour were not her business and the calls concluded with the comment “I will deal with you”. At para 36, the Tribunal notes the appellant’s contention that in March 2009 “the calls came at the frequency of one every few days [and] [O]ften the appellant would hang up immediately”.
At para 38, the Tribunal notes that the appellant told the Tribunal at the hearing that in April 2009 she was stopped in the street by two people she did not know; they took her by car to Zhao Jia Cun Police Station and put her in a small cell; there was nothing in the cell apart from a hole in the floor for toileting; she was taken to a larger room and put in a chair in front of a table where two police were sitting; two other police entered the room and sat away from the table; the applicant was asked where she worked and why she had reported concerns about child labour at the factory; and that she was asked why she had been in Australia and whether she was a spy. The Tribunal noted that the appellant said that she was kept in this room for about 10 hours being questioned intermittently.
At para 41, the Tribunal notes the appellant’s complaint about these matters to the DPP. The Tribunal notes that the appellant contended that she was “in a bad state when she left China and was suffering from insomnia such that she could not bear to bring to Australia anything about incidents she was now describing”. The Tribunal at para 42 notes that a staff member of the DPP told the appellant that “it was not possible that the police detained her for so long without a warrant”. The Tribunal noted that the appellant came to the view that the DPP “did not want to deal with the matter”. The appellant told the Tribunal at the hearing that the meeting with the DPP took place in either May or June 2009.
The Tribunal noted that the appellant contended that she then wrote a letter to the editor of the Jinan Daily, the main newspaper in Jinan City. The appellant wrote that letter in August 2009. She told the Tribunal that she did not get a reply (para 43).
Apart from noting the appellant’s contentions about the threats made to her by a pattern of telephone calls, the Tribunal noted the details of the assault made upon her which caused her to be hospitalised. These events happened in September 2009 when the appellant was returning from work at Shandong University. The Tribunal noted at para 44 this:
She was walking from the stop where she got off the bus to her home. It was about 9:00pm. Generally speaking, it was a safe area. Two males came up behind her and struck her on the back with a stick. She turned and nearly fell. They struck her again. She used her arms to protect her head. She fell to the ground and was kicked. She suffered no blows to her face or her head but suffered blows everywhere else. The men shouted abuse at her saying … you see, this is the trouble you have got yourself into.
The Tribunal at para 46 noted this:
The applicant said that, after the attack, she managed to get herself home, although she was in severe pain. The Tribunal asked whether she was bleeding. She said she was – from the abdomen. When she got home her mother took her to hospital. The applicant was there for seven days. While she was there, she had chest pains and tests showed she had an irregular heartbeat. Before the incident she had been healthy. The Tribunal asked her why she had not mentioned this heart problem in her written statement. She said that she forgot but now her heart was getting better. She suffered no fractures from the beating, just bruising and had a laceration on her ribcage.
At para 47, the Tribunal noted the appellant’s claim that her mother had continued to receive anonymous phone calls. At para 48, the Tribunal notes the appellant’s claim that she became angry about all of these matters and went to the police again after her recovery although the police “did not take any notice”.
At para 52, the Tribunal notes the appellant’s contention that if she returned to the PRC, “those who had harmed her had threatened to kill her” and if she returned to the PRC “she could not stop what she was doing for the children”. At para 54, the Tribunal noted the appellant’s contention that she made complaints to what she described as “local institutions” and the local police about the factory in May or June 2008 and that “she started to receive threatening phone calls in March 2009”. The Tribunal focused on the chronology of the threatening phone calls and put to the appellant that if persons were concerned about what she was doing in relation to the factory, would not the threatening phone calls have started much earlier than March 2009? The Tribunal noted the appellant’s response that in May or June 2008 she raised her concerns in the way described but could not precisely remember the dates and could not say why the threatening phone calls had not started earlier but perhaps the persons responsible for making those threatening phone calls saw that she was not going to stop her campaign and thus the calls began much later in time. At para 54, the Tribunal notes that at the hearing the Tribunal pointed out to the appellant that she had not engaged in any other steps in relation to the factory after August 2008. The appellant agreed that no further steps had been taken since then but nevertheless she was “still talking with work colleagues about whether they had acquaintances in government who might help her”.
The reason for examining these factual matters
The point of mentioning these factual matters in some detail is to examine two things.
First, whether the Tribunal recognised at the threshold, in terms of the appellant’s statement accompanying the application for a Protection Visa, the appellant’s contentions that not only was she physically assaulted but that there was a systematic, as contended, sequence of steps by which she was threatened and intimidated and this centred around a pattern of telephone calls in which threats were made and also the conduct at the police station over the 10 hours of questioning in April 2009. Secondly, whether the Tribunal further addressed those matters in evidence during the course of the hearing and took into account information given at the hearing concerning the threatening phone calls, the detail of the conduct at the Zhao Jia Cun Police Station in April 2009, the apparent disregard of the appellant’s complaints to the DPP and the police, the threats made to the appellant in the course of being assaulted in September 2009, the further threats implicit in the anonymous phone calls to the appellant’s mother, and the apparent disregard of the appellant’s further complaint to the police about the assault upon her, in circumstances where she was very angry about that matter.
The Tribunal also noted the central matter of the appellant’s concern that those who had harmed her in these various ways and who had threatened to harm her, caused her in effect to believe that she would be subject to all those forms of harm again should she return to the PRC.
Accordingly, it is clear that the Tribunal took into account these various instances of serious harm upon which the appellant relied including the contended physical affects of the stress she said she endured.
The Tribunal did not reach its decision by disregarding claimed instances of serious harm.
In order to understand the findings of the Tribunal, it is necessary to note the following concerns raised by the Tribunal with the appellant.
The appellant arrived in Australia on 13 January 2010 entering the country on a Visitor’s Visa issued in Shanghai on 4 November 2009. The Tribunal put to the appellant that the Departmental records indicated that she had entered Australia as a visitor to see a friend, Ms Kozlova, who was about to have a child; the applicant applied for an extension of her Visa which was refused; after the refusal, the appellant applied for a Protection Visa. The Tribunal put to the appellant that her claim to hold a well‑founded fear of persecution might not be believed as that claim was not made at the outset and was advanced only after the rejection of the extension application. The appellant explained to the Tribunal that it was only after learning (at the time she was seeking an extension to the Visitor’s Visa) of continuing threatening calls to her home that she realised the need to seek a Protection Visa.
The appellant applied for the Protection Visa on 12 April 2010.
Secondly, the Tribunal expressed concern to the appellant about a lack of any documents which might support her claims. As to such documents, the Tribunal noted that the appellant sent emails to her friends in Australia, including Ms Kozlova, about the 10 hour interrogation by police in April 2009. The appellant told the Tribunal that one of the things that concerned her was that none of her friends received the emails and thus no example of an email could be produced. The appellant told the Tribunal that she wrote a letter to the DPP about the child labour conditions and a copy of that letter had been kept on a USB stick. The appellant had elected not to bring the USB stick to Australia because, firstly, she was concerned it would be found by Chinese Customs Officials when leaving the country and, secondly, she was in a “bad state” and “suffering from insomnia” when leaving China and “could not bear to bring to Australia anything about the incidents she was now describing”. The appellant said she wrote a letter in August 2009 to the main daily newspaper in Jinan City, the Jinan Daily, about the factory issues, her 10 hour interrogation and the disinterest of the DPP.
A copy of that letter was said to be contained on the appellant’s USB stick.
The appellant told the Tribunal that she did not bring her hospital records of the assault and seven day hospitalisation to Australia. The Tribunal asked the appellant whether her mother could send the USB stick and hospital records to her. The appellant told the Tribunal that her mother was old, not in good health and the appellant did not want to get her mother into trouble.
On the question of whether the appellant ought to be believed as to her various claims, the appellant told the Tribunal that after completing her studies in Australia at Macquarie University, she could have then sought permanent residency but chose to return to the PRC.
In failing to be satisfied that the appellant is a person to whom Australia owes protection obligations, the Tribunal was satisfied that the appellant may have become aware of a factory employing child labour in Jinan City. However, the Tribunal was not satisfied as to the truth of the appellant’s claims because it thought that, had the appellant fled China on 13 January 2010 to escape persecution, she would have made a Protection Visa claim shortly after arriving in Australia and whilst, rationally, she might not have raised claims of persecution in a Visitor Visa application, the period of elapsed time between 13 January 2010 and 12 April 2010 before making a claim (made only after unsuccessfully applying for an extension of her existing visa) suggested to the Tribunal that the persecution claim and the explanation for not applying earlier in respect of it, were unconvincing.
Secondly, as to the threatening phone calls, the Tribunal was concerned about an apparent anomaly in that the conduct of reporting the conditions at the factory to the police and local institutions occurred at the latest in June 2008 and the calls only began nine months later, on the appellant’s contentions, in March 2009.
Thirdly, and more fundamentally, the Tribunal did not believe the appellant’s contention that she kept a copy of her letter to the DPP and a copy of her letter to the Jinan Daily on a USB stick and was too afraid to bring the USB stick to Australia. Having regard to the appellant’s level of education; the valid passport issued by the PRC government that she held; the valid entry visa to Australia that she had obtained; and, the absence of any suggestion that she was included on any list that may have caused her to have difficulties leaving the PRC, the Tribunal did not accept that “[the appellant] truly believed that a USB stick would excite any interest at the border”. Nor did the Tribunal accept the appellant’s explanation of the potential difficulty for her mother of sending the appellant’s hospital records to her.
The Tribunal concluded at para 67 that the appellant had invented her claims. The Tribunal did not accept that the appellant was detained and interrogated or that she was assaulted in the street or that she was subjected to threatening phone calls.
The Tribunal elected to have regard to aspects of the United States State Department 2009 Human Rights Report as support for the notion that the reporting of cases of child labour is encouraged by the Government of the PRC. At para 69, the Tribunal concluded that it could not accept “that there is a real chance that, if the applicant returns to China now or in the reasonably foreseeable future, she will be threatened or detained or otherwise persecuted by reason of her real or perceived political opinion as an agitator for the elimination of child labour practices”.
The Tribunal was entitled to have regard to the country information to which it referred.
The findings the Tribunal made were open to it. There is no jurisdictional error in the sense contemplated in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 per Dixon J; Craig v South Australia (1995) 184 CLR 163 at 179 per the Court; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ; and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. No question of a failure by the Tribunal to comply with an anterior procedural step (whether facultative or imperative or otherwise as a matter of statutory purpose – leaving aside the legal consequences of a departure from any such provision) is alleged. The Tribunal did not fail to consider the complaints of harm said to have been suffered by the appellant nor discount any assessment of the harm on the footing that particular contentions of harm did not rise to the level of instances of serious harm for the purposes of s 91R of the Migration Act.
The Tribunal did not believe the appellant’s claims and did not accept her explanations for matters that properly went to those claims.
Ground 1 of the appeal has no merit and leave to rely upon it is to be refused.
Ground 2 of the appeal is that the decision of the Federal Magistrate is inconsistent with his Honour’s reasons. That result is said to arise, it seems, because at [25] of the reasons of Federal Magistrate Driver, his Honour observed that the appellant “does not strike me as an untruthful person”.
The considerations taken into account by the Tribunal were matters relevant to the statutory question of whether the Tribunal could be satisfied of the relevant matters. The decision reached does not rest on irrelevant considerations of inferences not open to the Tribunal. Federal Magistrate Driver’s observation is not inconsistent with the decision to dismiss the application because the Tribunal’s decision was open on the evidence and no error of jurisdiction arises, as his Honour recognised in making the dispositive order.
At [25], his Honour expresses the view that it is possible that the appellant is telling the truth about complaints made of the use of child labour and that someone threatened her following some process of investigation by Chinese authorities. His Honour observes that he could not rule out these possibilities. These possibilities of some threats by someone following some process of investigation of a complaint made about a particular subject matter, which cannot be ruled out, is the very reason why a Tribunal of fact has been established to determine whether in the exercise of a review of the Minister’s Delegate’s decision, a state of satisfaction can be reached, on the facts, that a particular person has a demonstrated well‑founded fear of persecution for a Convention reason should that person return to his or her country of origin.
The only question to be determined by the Federal Magistrates Court of Australia was whether the Tribunal made a decision within jurisdiction or not having regard to the jurisprudence on that question established by the High Court of Australia. The decision reached by the Tribunal was made within jurisdiction according to that jurisprudence. The notion that the appellant appeared to the Federal Magistrates Court to be telling the truth about certain matters, and that particular possibilities were open on the evidence and could not be ruled out, is not inconsistent with a decision by the Tribunal made within jurisdiction.
Since neither ground of the appeal is made out, the appeal must be dismissed with an order that the appellant pay the first respondent’s costs of and incidental to the appeal.
I certify that the preceding sixty‑six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 2 June 2011
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