FEDERAL COURT OF AUSTRALIA

Xiao v Minister for Immigration & Multicultural Affairs

[2000] FCA 1472

ADMINISTRATIVE LAW – Migration – Application for protection visa – Determination by Refugee Review Tribunal without oral hearing – Applicant invited to oral hearing but failed to attend – Applicant had been hospitalised and instructed migration agent to seek postponement – Letter faxed to Tribunal but apparently went astray – Whether Tribunal is under a continuing obligation to provide an opportunity for an oral hearing.

Migration Act 1958, ss425 and 426A

YUE TUAN XIAO V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N535 of 2000

WILCOX J

SYDNEY

20 OCTOBER 2000

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant, Yue Tuan Xiao, pay one-half of the costs of the respondent, Minister for Immigration and Multicultural Affairs.

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

REASONS FOR JUDGMENT

1                     WILCOX J:  This is an application for review of a decision of the Refugee Review Tribunal.  The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural Affairs, to refuse to grant a protection visa to the applicant, Yue Tuan Xiao.

The background facts

2                     The circumstances of the present application are unusual.  The applicant is a citizen of the Peoples Republic of China.  She arrived in Australia on 13 October 1999 and promptly lodged an application for a protection visa.  That application was refused by the Minister’s delegate on 30 November 1999.  On 12 December 1999 the applicant applied for a review by the Tribunal of the delegate’s decision.  The application was lodged on her behalf by Priscilla Yu, a migration agent carrying on business in Haymarket, Sydney through a company Pricilla International Co Pty Ltd.

3                     About the time of lodgment of the application for review, Ms Xiao was admitted to Westmead Hospital where she remained until late January or early February.  On 31 January 2001 the Tribunal wrote a letter addressed to Ms Xiao care of the post office box used by Ms Yu.  This letter invited Ms Xiao to attend a hearing of the Tribunal on Friday, 17 March 2000 in order to give oral evidence, and present arguments, in support of her claims.  On 9 February 2000 Ms Xiao signed a response to that invitation, apparently prepared by Ms Yu, in which she intimated that she wished to come to a hearing and would need a Mandarin interpreter.  That document was faxed to the Tribunal by Ms Yu.  It was received and placed in the Tribunal’s file.

4                     Shortly before Sunday, 12 March 2000, Ms Xiao contacted Ms Yu and told her she was not well and wished to obtain a postponement of the hearing.  Ms Yu indicated she would need medical evidence to support a request for postponement.  So Ms Xiao arranged for a friend to take to Ms Yu a copy of the hospital records relating to her illness.  These records indicated the necessity for ongoing treatment after Ms Xiao’s discharge from hospital.

5                     The hospital records were delivered to Ms Yu on Sunday, 12 March 2000.  According to her evidence, Ms Yu immediately prepared a letter addressed to the Tribunal at 201 Elizabeth Street, Sydney.  The letter was marked for the attention of a Contact Officer called Gosia Wiraszka.  It was headed: 

“Request to re-schedule of hearing at the Tribunal. 

Applicant:  Ms Yue Tuan Xiao

File Number:  N99/31272.”

The letter read: 

“We are acting as the Migration Agent for Ms Yue Tuan Xiao who has lodged an application for a review by the Tribunal.

The applicant acknowledges that the Tribunal has arranged a hearing regarding to abovementioned application on 17^th March 2000.  Unfortunately, she is currently suffered to some health problem (please see attachment).  Therefore, she may not be able to attend the above hearing.  In such a situation, would you please kindly arrange another hearing for the applicant.

Thank you for your kind attention.”

The letter was signed by Ms Yu on behalf of Pricilla International.

6                     According to her evidence, Ms Yu included in her fax transmission the two page hospital report that had been delivered to her.

7                     Ms Yu did not receive an acknowledgment of her fax.  She did not contact the Tribunal to confirm that the fax had been received or to ascertain whether the Tribunal  was disposed to postpone the hearing.

8                     Ms Xiao did not attend the hearing appointed for 17 March.  Notwithstanding that fact, the appointed member, Robert Lee, considered the matters set out in her application for a protection visa. 

9                     Ms Xiao’s claim of refugee status was based upon her alleged political activities, in opposition to the Chinese government.  According to the claim, Ms Xiao had become involved in anti-government activities while a student at Guangzhou Light Industry College.  She said that, as a result of her political activities, she had been dismissed from the college and detained by the police for three months.  Ms Xiao said that, because of her political activities, she had difficulty obtaining work.  In 1996 she met a man named Jian Jun Chen who had been a student leader during the 1989 pro-democratic movement and, more recently, had established an underground pro-democratic party called China Youth Party for Democracy (“CYPD”).  The purpose of this party was to organise political activities against the Communist government.  Ms Xiao said she formally became a member of this party in January 1998.  However, according to her, she was earlier actively involved in the party’s underground activities; distributing handbills, organising secret meetings and secretly recruiting new CYPD members.  Ms Xiao said that, in May 1997, she was put in charge of a branch of the CYPD concerned with the workers’ political movement.  She contacted other people to develop the party’s underground democratic activities and published an underground monthly to propagate democratic ideas.  Ms Xiao said she was involved in an October 1997 mobilisation of workers and students to ask the Chinese government to punish those responsible for the June 4 massacre.

10                  Ms Xiao claimed that, in January 1998, police raided a meeting at her home and arrested the five people in attendance, including herself.  She said she was held in custody for a year, during which time she was questioned many times and physically and mentally mistreated.  Owing to her poor health, she was released on bail in February 1999, but required to report to the local police station each week.

11                  Ms Xiao said she decided it was impossible for her to remain in China.  In April 1999 she spoke to Mr Chen about her situation.  He promised to collect donations to cover the cost of her leaving the country.  In October 1999 she was able to do so.  In his reasons for decision, Mr Lee recounted the claims made by Ms Xiao in her written application.  He also referred to country information available to the Tribunal.  He drew the following conclusion:

“Many of the pro-democracy activists from the Tiananmen period and those who have returned have been allowed to become involved in trade and economic pursuits without hindrance from the government.  The government seems to have drawn a clear line, in that they welcome participation in economic development but ban any attempt by returning dissidents to engage in political activities.”

12                  Mr Lee was satisfied as to the applicant’s identity and nationality but said that, under the circumstances of her non-appearance at the hearing, “it is difficult for the Tribunal to satisfy itself that the Applicant does have a well-founded fear of persecution on return to China”.  He set out matters that he “would have wanted to explore” with the applicant; “in particular her own personal experiences and difficulties and any particular mistreatment or discrimination she might have experienced in China”.  He said the Tribunal was “willing to accept that the applicant was involved in democratic activities in one form or another” but “on the basis of the information before it, the Tribunal does not consider that the applicant has a profile with the Chinese government which would precipitate persecution for Convention-based reasons on her return to China”.

13                  Mr Lee pointed out the absence of many important details.  On a number of occasions in his reasons, he referred to his inability to discuss particular matters with the applicant.  It is clear that the applicant’s non-attendance at the oral hearing was a major impediment to Mr Lee’s being satisfied of the truth of her claims.  He did not find that the claims were inherently improbable.  Nor did he indicate any doubt that, if the claims were true, they would demonstrate the existence of a reasonable fear of persecution for a Convention-related reason, if Ms Xiao returned to China.

Was the postponement letter sent?

14                  When the application for review of the Tribunal’s decision came before the Court for hearing, on 17 August 2000, Ms Xiao was unrepresented, although assisted by an interpreter.  Ms Xiao complained of the failure of the Tribunal to accede to her application for a postponement of the hearing.  However, counsel for the Minister, Mr T Reilly, said that, upon his instructions, there was nothing in the Tribunal’s file to indicate receipt of an application for a postponement of the hearing. 

15                  It seemed to me important to clarify the factual situation; so I adjourned the further hearing of the matter until 23 August 2000 and suggested to Ms Xiao that she issue a subpoena requiring the attendance of Ms Yu on that day.  She did so.  However, Ms Yu did not attend on 23 August.  Apparently she had a commitment in the Tribunal on behalf of another client and thought it sufficient to give to Ms Xiao a copy of her letter to the Tribunal, dated 12 March 2000 and quoted at para 5 above.  I admitted this letter into evidence.  But uncertainties remained regarding its transmission to the Tribunal.  So I adjourned the hearing once more, this time until 6 October 2000.  I directed that the Registrar write to Ms Yu indicating the necessity for her attendance on that day.

16                  On 6 October Ms Yu attended Court.  She answered questions about the sending of the fax requesting a postponement and was cross-examined about the matter by Mr Reilly.  In the course of that cross-examination, Mr Reilly elicited the information that Ms Yu has no fax transmission report in her file, relating to the letter of 12 March 2000.  However, Ms Yu said her fax machine does not print a transmission report.  She said that, when she makes a fax transmission, she carefully checks on her screen the number to which the fax is being sent.  She was positive she did this when she sent her letter of 12 March.  Ms Yu said she had successfully requested postponements on other occasions.  Ms Yu conceded that it would have been good practice for her to have telephoned the Tribunal on the Monday, to check that her fax had been received, and that she should have confirmed that the request was granted.  She said it was not until she received the Tribunal’s decision rejecting Ms Xiao’s application for review that she realised her request for postponement had not been granted.

17                  Mr Reilly submitted I should reject Ms Yu’s evidence about seeking a postponement of the Tribunal hearing.  I am not prepared to do so.  It would have been easier for me to accept Ms Yu’s evidence if I had been shown a contemporaneous record of the transmission of her letter to the Tribunal.  However, as I understand the position, not all facsimile machines automatically print out transmission reports.  I am not prepared to say Ms Yu gave perjured evidence about her machine and the fact that she faxed the letter.  So far as it is possible to make a judgment based on a relatively brief appearance in the witness box, Ms Yu seems an honourable and careful person.  Of course, she could have made an error in the number she programmed into the fax machine in order to send the letter; but she testified she had the Tribunal’s fax number on a list beside her machine and that she carefully entered it, knowing the importance of the letter to Ms Xiao.

18                  I am not favourably impressed by Ms Yu’s failure to follow up her letter, by checking it had been received and confirming that the postponement would be granted.  Her duty to Ms Xiao required her to do these things, as Ms Yu conceded under cross-examination.  But that does not meant I should reject Ms Yu’s evidence about sending the letter.  If the true position is that the letter was never sent, but manufactured later in order to bolster Ms Xiao’s application for review, as Mr Reilly suggested, Ms Yu has indulged in a calculated deception of the Court.  She must have done so between the time she was contacted by Ms Xiao, after 17 August, about coming to Court and the time when she gave Ms Xiao the letter which Ms Xiao brought to Court on 23 August.  This would have needed some quick-witted collusion.  The documents produced to the Court on 23 August included a copy of Ms Xiao’s hospital record.  Ms Xiao said this came from Ms Yu’s file and Ms Yu confirmed in evidence that she had had this document.  There would have been no reason for her to do so, unless a postponement was to be requested.

19                  It is difficult to see any motive for Ms Yu deceiving the Court.  By August 2000 Ms Xiao was no longer a client.  On the hypothesis that the request for postponement was never made, Ms Yu owed Ms Xiao no obligation; on this hypothesis, Ms Yu had not let her down in any way.  Moreover, Ms Yu would surely have expected to lose her accreditation as a migration agent if it were found  she had deceived, or sought to deceive, the Court. 

20                  The evidence given by Ms Yu is actually against her personal interest.  It exposes her to the reproach that she neglected her duty to Ms Xiao by failing to confirm that the letter was received and the postponement granted.  It would have better served Ms Yu’s interest for her to deny having received instructions to seek the postponement.

21                  On 16 October, Mr Reilly repeated his instructions that the Tribunal has no record of receipt of the faxed letter.  But he called no evidence about the condition of the Tribunal’s file or concerning any search that might have been made; not even from the contact officer named in Ms Yu’s letter.

22                  I have no doubt that, when he wrote his reasons for decision, Mr Lee was unaware of any request for a postponement; had he been aware, he would have written in different terms.  However, having regard to the totality of the evidence, I find, on the balance of probabilities, that Ms Yu did request a postponement of the hearing.  Through some misadventure, probably in the Tribunal’s administrative section, this request was not communicated to Mr Lee.  In consequence, he proceeded to determine the application for review of the delegate’s decision in the belief that Ms Xiao had elected, without explanation, to forego her right to an oral elucidation of her claims.

23                  There is no certainty that Mr Lee would have acceded to the request for postponement, had he learned of it.  However, having regard to the medical history and the fact that this was the first such request, I think it probable that he would have granted a postponement; even if only for the short period that would have been required for an up-to-date assessment of Ms Xiao’s fitness to cope with an oral hearing.  Had the application for postponement been considered and refused, Ms Yu would have been informed of this fact.  No doubt she would have ensured that Ms Xiao attend the hearing, whatever her ability to cope with its demands.  Mr Lee would at least have known she was anxious to participate in an oral hearing.

The effect of the request for postponement

24                  Do these findings of fact give to Ms Xiao a right to have the Tribunal’s determination set aside?  As the legislation presently stands, I think not.

25                  Until recently, s425 of the Migration Act 1958 provided that, where the Tribunal was unable to determine an application for review favourably to an applicant “on the papers”, the Tribunal “must give the applicant an opportunity to appear before it to give evidence”.  These words imposed a continuing requirement.  So the obligation under s425 was breached by an unreasonable refusal of an adjournment of a hearing:  see Capitly v Minister for Immigration and Multicultural Affairs (Burchett J, unreported, 24 September 1998), affirmed under the name Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193; 55 ALD 365.  The Full Court decision was recently approved by another Full Court:  see Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789.

26                  The Migration Legislation Amendment Act (No.1) 1998 substituted a new s425(1) which said:

“(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

Mr Reilly argued the effect of the change was to sweep away the requirement of a continuing obligation; it was sufficient for the Tribunal to have given an invitation that complied with the requirements of s425A as to form and was for a reasonable period of notice.  He referred to De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765; 98 FCR 364.  That case is not inconsistent with Mr Reilly’s submission:  see especially para 8.  However, it really deals with a different matter:  whether s425(1) imposes an obligation on the Tribunal to identify issues and draw them to the applicant’s attention.

27                  Mr Reilly referred to three decisions that contain comments about the effect of the changed form of s425.  Two of those are decisions of Mansfield J:  Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 and Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1013. 

28                  Hossain was a case where the Tribunal had refused an adjournment, notwithstanding a claim that the applicant was unwell.  The application for review was argued on the assumption that the principle enunciated in Capitly applied to the substituted s425.  Mansfield J accepted that assumption for the purpose of analysing the applicant’s case, but he did not endorse it.  Rather, he suggested that the critical matter may be whether it can be said that the applicant “does not appear” within the meaning of s426A(1)(b) of the Migration Act.  Section 426A provides:

            “(1)     If the applicant:

(a)               is invited under section 425 to appear before the Tribunal; and

(b)               does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)           This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”

Mansfield J said, at para 20:

“The expression ‘does not appear’ in s426A(1)(b) may require further judicial exposition in other cases.  For instance, it may be that there is clear evidence that a visa applicant is unable to attend although he has expressed a desire to attend.  He may be hospitalised.  There may be many explanatory circumstances.  No doubt the issue has not arisen because the Tribunal  responds appropriately to true cases of hardship.”

29                  In Kumar Mansfield J stated he need not “determine if s425(1) as now expressed cuts down on the procedural entitlement provided by s425(1) as previously expressed”.  However, he noted that the Minister’s Second Reading speech to the 1998 Bill failed to indicate any such intention.  Also, he pointed out that the Explanatory Memorandum for the Bill contained the following statement:

“New section 425 entitles an applicant to have the opportunity to appear before the Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 425(2) applies.  When subsection 425(2) applies, an applicant is not entitled to appear before the Tribunal.”

30                  The third case mentioned by Mr Reilly is the Full Court decision in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275.  That case arose out of the fact that the Tribunal’s invitation was returned unclaimed to the Tribunal before the date of the hearing.  Burchett J referred to Capitly, which he apparently regarded as having application to the new s425.  He said at para 10 the situation, in the case before the Court, was one where, to the knowledge of the Tribunal “it cannot then be said that any continuing opportunity is being afforded (or, since the amendment of s425, any continuing invitation to appear is being extended) to the applicant”.

31                  On the other hand, Branson J thought the change in wording was significant.  At para 43 she quoted the old wording and the new and commented:

“This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement.  A further indication that this was the intention of the legislature is provided by the terms of s 425A, which was inserted into the Act by the Amending Act.  Section 425A has the effect that, if the applicant is not in immigration detention, the Tribunal must give the applicant notice of his or her opportunity to appear before the Tribunal by sending a notice to the applicant, by giving a notice to the applicant or a person authorised by the applicant to receive on his or her behalf a document of that kind, or by leaving a notice at the applicant’s place of residence with a person who appears to live there and appears to have turned 16.  That is, the amendments effected by the Amending Act changed the requirement that the Tribunal notify the applicant that he or she is entitled to appear before the Tribunal to a requirement that the Tribunal give the applicant, by a specified method, a notice in writing containing certain information.”

32                  The remaining member of the Court, Marshall J, decided the case on a basis that did not require him to indicate a view about the existence of a continuing obligation.

33                  Mr Reilly argues I should adopt the view expressed by Branson J in Mohammad.  He submits:

“The current form of s425(1) is explicit and unambiguous, and no longer carries the construction found in respect of its predecessor in Capitly.  Section 425(1) now only requires the Applicant to be invited to appear; as she was, the procedure required by s425(1) was plainly complied with in this case.  The use made by Mansfield J in Kumar … of the relevant Second Reading Speech and Explanatory Memorandum concerning the amending legislation is inappropriate to construe s425(1) in the absence of any ambiguity:  Acts Interpretation Act 1901 s15AB.”

34                  The essence of Mr Reilly’s argument is that events subsequent to the invitation are immaterial.  He accepted the logic of that submission.  He agreed that, on his argument, it would not matter if an applicant was hospitalised as the result of an accident on the day before the projected hearing and it was clear the Tribunal was promptly apprised of that fact; if the Tribunal member proceeded to make a determination, either in ignorance of the applicant’s situation or because the member was unwilling to defer the hearing, no relief would be available to the applicant.  Mr Reilly contended s425 would have been satisfied and there was no continuing obligation for the Tribunal  to act reasonably in relation to provision of an oral hearing.  He said it would “no doubt be a breach of natural justice” to go ahead with the hearing, but he pointed out that this was excluded as a ground of review by s476(2)(a) of the Act.  According to Mr Reilly, an applicant’s only remedy, in such a situation, would be an application to the Minister, presumably under s48B or s417 of the Migration Act. 

35                  The situation outlined by Mr Reilly seems to offend fundamental notions of fairness and sensible administration.  However, with respect to the apparent contrary view of Burchett J and (possibly) Mansfield J, it seems to me Mr Reilly is correct in saying that s425 no longer imports a continuing obligation.  I agree with Branson J’s analysis of the position. I can think of no other reason why Parliament would have decided to substitute a requirement that the Tribunal “invite the applicant to appear” for a requirement that it “give the applicant an opportunity to appear”. Parliament must have deliberately decided the Tribunal’s obligation should be confined to the extension of an invitation, whether or not, having regard to subsequent events, that resulted in a reasonable opportunity for the applicant to appear.

36                  It does not follow that events subsequent to the invitation are necessarily immaterial.  Obviously, the invitation under s425 must remain open.  Moreover, as Mansfield J pointed out, there may be a question, in a particular case, whether or not it is correct to conclude the applicant “does not appear before the Tribunal” at the designated hearing.  Having regard to the significance of an oral hearing to an applicant for a protection visa, I would not subscribe to the view that the condition of non-appearance is necessarily satisfied by the applicant’s failure to present personally.

37                  However, in the present case I do not think subsequent events are significant.  The Tribunal issued an invitation that complied with the requirements of s425A.  That invitation remained open.  Notwithstanding my finding that Ms Yu sent the fax requesting a postponement, it cannot be said that the Tribunal was wrong in finding that Ms Xiao did not appear at the hearing.  If, as I believe, s425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned.

38                  The rider to the last sentence is dictated by Mr Reilly’s reference to intervention by the Minister.  In the present case, as it seems to me, there are powerful considerations in favour of ministerial intervention, at least to the extent of enabling Ms Xiao to make a second application for a protection visa:  see ss48A and 48B of the Migration Act.  If Ms Xiao’s claims are true, she has suffered serious persecution in China because of her commitment to democratic principles.  That persecution, if it occurred, was on account of her political opinion; and, therefore, was persecution covered by the Convention on Refugees.  Moreover, if she played the prominent role in the CYPD that she claims, there may be a real risk of persecution if she returns to China.  Unfortunately, the question whether Ms Xiao’s claims are in fact true has yet to be investigated at an oral hearing.  It is not for me to determine that matter.  However, I comment, first, that the claims appear not to be inherently improbable and, second, that it is obvious Ms Xiao has suffered – and perhaps continues to suffer – substantial health problems that seem consistent with her having undergone the type of trauma she claims.

39                  Whatever the strength of Ms Xiao’s claim to ministerial intervention, I see no basis upon which she is entitled to the intervention of the Court.  The application for review must be dismissed.

40                  Costs in these matters ordinarily follow the event.  Having regard to the outcome, I see no reason to decline to make a costs order in favour of the Minister.  However, the amount of the costs must have been substantially increased by the necessity to hold three hearings in order to resolve a factual issue, whether Ms Yu sent the letter, in relation to which I have found in Ms Xiao’s favour.  Under these circumstances, I think it is fair to limit the order to one-half of the Minister’s costs.

Associate:

Dated:              20 October 2000