Xiao v Minister for Immigration & Multicultural Affairs

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 17th 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.