SZSBX v Minister for Immigration

[2013] FCCA 1127

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSBX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1127

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether failure to take into account post-hearing material constitutes jurisdictional error – whether the question of failing to take into account post-hearing material constitutes jurisdictional error is to be determined by whether the material is classified as a claim, or element or integer of a claim, or an important contention – whether failing to consider evidence that is material to the Tribunal’s decision constitutes jurisdictional error.

Legislation:  

Migration Act 1958 (Cth) ss.425, 430, 36(2)(a), 36(2)(aa), 200, 412

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Re Minister for Immigration and Multicultural Affairs, Ex Parte Durairajasingham (2000) 168 ALR 407
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
MZWBW v Minister for Immigration and Multicultural Affairs [2005] FCAFC 94
Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 231
WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Tran v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 297
Applicant A169 v Minister for Immigration and Indigenous Affairs [2005] FCAFC 8
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303
MZXSA v Minister for Immigration and Citizenship (2010) 117 ACD 441
SZQRW v Minister for Immigration and Citizenship [2012] FCAFC 164
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
NABE v Minister for Immigration, Multicultural and Indigenous Affairs (2004) 155 FCR 1
SHKB v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 545

First Applicant: SZSBX

Second Applicant: SZSBY

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2441 of 2012

Judgment of: Judge Manousaridis

Hearing date: 31 July 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Mr Johnson

Solicitors for the Respondent: Minter Ellison

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 21 September 2012.

2. A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application made to it for review of the decision of the delegate of the first respondent dated 17 May 2012.

3. The name of the first respondent recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2441 of 2012

SZSBX

First Applicant

SZSBY

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. One and potentially two principal questions arise on this application for judicial review of a decision made by the second respondent (Tribunal).

2. The first is whether, when considering the application for review before it, the Tribunal took into account submissions (post-hearing submission) the first applicant (applicant) sent to the Tribunal after she gave evidence and presented arguments to the Tribunal at a hearing the Tribunal arranged under s.425 of the Migration Act 1958 (Act). This is in part a question of fact. But it is also in part a question of law, for it invites consideration of the circumstances in which a court may legitimately infer the Tribunal did not take into account material which it received but to which it did not refer in a statement it prepared under s.430 of the Act. The first respondent (Minister) submits that, in the circumstances of this case, the Court cannot legitimately infer from the fact the Tribunal did not in its reasons for decision refer to the post-hearing submission that the Tribunal did not take into account the post-hearing submission.

3. The second question arises if the first question is answered in the negative; that is, if I find the Tribunal did not consider the post-hearing submission. That question is whether the Tribunal committed a jurisdictional error by not considering the post-hearing submission. Here, the Minister submits that, in the first instance, I should approach this question by applying the principles Robertson J applied in Minister for Immigration and Citizenship v SZRKT.[1] The Minister further submits, however, that aspects of his Honour’s approach in SZRKT are inconsistent with a number of decisions of the Full Court of the Federal Court (Full Court). If, therefore, on the basis of my understanding of the decision in SZRKT, I conclude the Tribunal made a jurisdictional error by not considering the post-hearing submission, the Minister submits I should apply the different principles pronounced by the Full Court. In any event, the Minister submits that, no matter which of these two sets of principles are applied to the circumstances of this case, the Tribunal made no jurisdictional error.

   [1] [2013] FCA 317

4. In order to properly consider these two questions, it will be necessary to set out in a little detail the evidence the applicant is recorded by the Tribunal as having given to it; the contents of the post-hearing submission; the Tribunal’s reasons for affirming the delegate’s decision; and the materials and evidence to which the Tribunal referred in its reasons for decision.

Evidence given by the applicant to Tribunal

1. The applicant and her son, the second applicant, are citizens of the People’s Republic of China.

2. On 22 December 2011 the applicants applied to the Minister for a protection visa.[2] The grounds on which the applicant claimed entitlement to a protection visa were her fear of being persecuted in China because of her adherence to and practice of the Christian faith, and the fear the second applicant would be persecuted, punished and discriminated against by China’s family planning laws.[3]

   [2] CB13

   [3] CB164

3. On 30 August 2012 the applicant appeared before the Tribunal in response to an invitation made under s.425 of the Act. At the hearing, the applicant withdrew a number of factual allegations she made to the delegate,[4] but otherwise maintained her claim of fear of persecution because of her religious faith, and her claim of fear of discrimination of the second applicant.

   [4] CB169 [57]

4. As to her claimed fear of persecution because of her Christian faith, the applicant gave evidence to the Tribunal which included the following: she attended services at a church in her town established by a nun;[5] the church was later subsumed under the “Three-Patriotic Church”;[6] the applicant stopped attending the church because of government interference;[7] she then attended, usually weekly, a family household church from the age of fifteen until she left to travel to Australia;[8] the applicant did not experience difficulties with the Chinese authorities, and she was not aware of there having been any problems for anyone from her church due to their attending the family household church;[9] she feared returning to China because a lot of Christians in China, especially in the household churches, had been persecuted, but the news is concealed;[10] on her return to China, the applicant would evangelise and for that she would be arrested and persecuted;[11] she could not join any endorsed churches in China because she believes in God in Heaven and not in the Government, and in the Three-Self Patriotic churches where there are a lot of words that cannot be said;[12] and the Christian group to which she belonged in China does not have a name, but many people are involved, and there is more than one place at which people can gather.[13]

   [5] CB170 [60]

   [6] CB170 [60]

   [7] CB170 [60]

   [8] CB170 [61]

   [9] CB170 [61]

   [10] CB171 [66]

   [11] CB171 [66]

   [12] CB173 [75]

   [13] CB171 [66]

5. As to the claim relating to the second applicant, the applicant said it would be difficult for her to register the second applicant if she returned to China because she was not married;[14] and it would be impossible for her to get household registration because, although she has a boyfriend, they are not married.[15]

   [14] CB169 [58]

   [15] CB169 [58]

The post-hearing submission

1. On 3 September 2012, the Tribunal received from the applicant the post-hearing submission. This consisted of a three-page document together with a 22-page document titled “See through the “Three-Self” Church – the Chinese Official Atheistic Church”.[16] The post-hearing submission begins by the applicant apologising for troubling the Tribunal again, noting, however, she “was really discouraged after attend [sic] the tribunal”, and that “I desire that I was being persecuted in China before”.

   [16] CB128-152

2. After noting she had made inquiries of agents about the possibility of her obtaining another visa to stay in Australia and receiving negative responses from those agents, the applicant stated there are “so many house church Christians being persecuted”. The applicant refers in general terms to people being caught by the Communist Party and being put into prison. She says she sometimes saw some women being raped, and says the Communist Party “uses a variety of ways to torture Christians”.

3. The applicant then makes a statement, based on what she describes as an “annual report”, that there has been a 19% increase in 2009 of house church leaders being sentenced. Although it is not entirely clear which or whose annual report the applicant here has in mind, it appears from the following paragraph in the post-hearing submission that the applicant intends to refer to an annual report released by the “China Aid Association”. Here, the applicant states that in that annual report, the China Aid Association pointed out that “3000 of the house church Christian [sic] has been kidnapped by the Chinese Communist authorities”; that in 2009 “a number of church leaders were sentence [sic] to 7-15 years”; that “the person in charge of the China Aid Association, Bob Fu said that these number [sic] according to the tip of the iceberg”; that “Bob Fu said 2008 Olympic year persecution is very serious”, and that in 2009 “both the number of people persecuted and the scale in terms are upgrades”.[17]

   [17] The quotation of this part of the submission is accurate. What the applicant appears to intend to say is that increased persecution took the form of increasing previously imposed prison terms.

4. In the next paragraph of the post-hearing submission, the applicant says that “persecution is far more than we announced these figures [sic]”, and that “the statistics are just the tip of the iceberg of the religious persecution in China”. The applicant then refers to a link to a YouTube page after which the applicant states:[18]

   “I show these to you, is to let you know that the Chinese Communist Party is being persecuted and exacerbate persecute us, I was very nervous yesterday. So I have already forgotten data. But they put these things highly international blockade, I think they persecuted me is just a matter of time if I go back to china.”

   [18] The quotation of the ungrammatical passage is accurate.

5. In the remainder of the post-hearing submission, the applicant makes general statements about the Chinese government’s policies towards Christianity. She states “[t]hey desperately to brainwash us to reject God”; the “government wants to hinder our religious beliefs, and they want us to join the “Three-Self church [o]therwise we will be faced with the threat of religious persecution”, and that the Three-Self Church “uses for control and eradication”.

6. In support of the last statement, the respondent refers to an attached article titled “See through the “Three-Self” Church – the Chinese Official Atheistic Church”. The article is lengthy, and it appears to have been obtained from a website having the address “ The article is an extended criticism of the Three-Self Church. It includes a detailed history of the Three-Self Church and contains a number of general assertions of fact.

   [19] CB154

7. Finally, the post-hearing submission refers to her religious observances at a Christian assembly in Lidcombe.

The Tribunal’s reasons for decision

1. The Tribunal’s reasons for decision are contained in a document titled “Statement of Decision and Reasons” which is divided into a number of sections. Under the first heading, “Application for Review”, the Tribunal identifies the nature of the application before it and the nationality of the applicants.

2. The second section, which is headed “Relevant Law”, contains a summary of the legal principles the Tribunal considers relevant to its determination of the application. In particular, it sets out relevant principles as to the meaning of s.36(2)(a) and s.36(2)(aa) of the Act.

3. The third section is headed “Claims and Evidence”. Here, the Tribunal sets out in detail the applicant’s claims and evidence given by the applicant to the Department of Immigration and Citizenship (DIAC) and to the Tribunal. The Tribunal refers to and summarises the applicant’s written application dated 22 December 2011,[20] the applicant’s written statement dated 22 December 2011,[21] the applicant’s interview on 8 May 2012 with DIAC,[22] the applicant’s written statement dated 10 June 2012;[23] and the evidence the applicant gave at the hearing before the Tribunal on 30 August 2012.[24]

   [20] CB162 [28]

   [21] CB163 [29]

   [22] CB164 [30]- [53]

   [23] CB168 [54]

   [24] CB169 [55]-[85]

4. The fourth section is headed “Independent Country Information”. Within that section, the Tribunal sets out information from various sources on a number of topics, one of which is “Religious Freedom”.[25] Here, the Tribunal sets out an extract from the “US Department of State Report on Religious Freedom in China” for 2010. That extract sets out a number of statements including the following: the Chinese constitution states that no state, public organization, or individual may compel citizens to believe in, or not believe in, any religion; only religious groups belonging to one of the five state-sanctioned “patriotic religious associations” (Buddhist, Taoist, Muslim, Roman Catholic, and Protestant) are permitted to register with the government and legally hold worship services; other religious groups are not permitted to register as legal entities; proselytizing in public or unregistered places of worship is not permitted; some religious and spiritual groups are outlawed; Chinese Communist Party members are required to be atheists; the “Pew Research Centre” estimated in 2007 that 50 million to 70 million Christians practised in unregistered religious gatherings, also known as “house churches”; religious groups independent of the five official government patriotic religious associations “can be vulnerable to coercive and punitive action by the Religious Affairs Bureau, the Public Security Bureau (PSB) and other party or government security organs”; and since 2005 SARA has acknowledged, through a policy posted on its web site, that family and friends have the right to meet at home for worship, including Bible study, without registering with the government.

   [25] CB 175 [86]

5. The next section of the Tribunal’s reasons is headed “Findings and Reasons”. The Tribunal there records findings which include the following: the applicant is a Christian;[26] she regularly participated in Christian services in China, although the people with whom the applicant prayed cannot be described as a cohesive, definable group;[27] although the applicant had limited involvement with evangelism during her time in Australia, the applicant may continue her evangelism if she returns to China;[28] the applicant, however, “does not have a well-founded fear of persecution for a Convention reason based on her past, present or future evangelism” because, based on “country of origin information”, the “Chinese Government has acknowledged the right of people to meet privately and discuss religious issues” and the applicant’s “low level of evangelism described by the applicant” would not “be acting outside the laws of China”, and thus would not “attract the attention of Chinese authorities”;[29] the applicant will continue to participate as a member of the Christian church if she returns to China, but with underground Christian groups, as opposed to the Three-Self Patriotic Church;[30] however, because there are between 23 and 70 million people attending unregistered churches in China, and the authorities have acknowledged the right of people to meet in private houses, there is not a real chance of serious harm or persecution in the foreseeable future for Christians in China based on their religion, and, for this reason, the applicant “does not have a well-founded fear of persecution for a Convention reason based on her past, present or future belief in and involvement with Christianity”.[31] The Tribunal also found that the applicant did not have any well-founded fear of persecution of the second applicant.

   [26] CB180 [104]

   [27] CB180 [105]

   [28] CB180 [106]

   [29] CB180-181 [106]

   [30] CB181 [107]

   [31] CB181 [107]

Did the Tribunal consider the post-hearing submission?

1. The Tribunal’s reasons for decision do not refer to the post-hearing submission. The Minister submits, however, that the Court cannot, from this omission alone, infer the Tribunal did not consider the post-hearing submission. That is so, the Minister submits, because there was “no obligation upon the Tribunal to refer” to the post-hearing submission in its reasons for decision.[32] Stated another way, the Minister submits that if, as the Minister contends, the Tribunal was not obliged to refer to the post-hearing submission in its reasons for decision, it cannot be inferred from its not referring to it that it did not consider the post-hearing submission.

   [32] Minister’s written submissions, [14]

2. The efficacy of the Minister’s submission depends on what information the Tribunal included in its reasons for decision. If, for example, the Tribunal included only information required by s.430(1) of the Act (s.430 information), it cannot be inferred it did not consider information to which it did not refer in its reasons for decision. That is so because, from what appears in the reasons for decision, it is to be inferred that, out of all of the information the Tribunal considered, it decided to include in its reasons for decision only that information it was obliged to include, namely, s.430 information.

3. This reasoning, however, is not available where, in addition to including s.430 information in its statement of reasons, the Tribunal includes information not required by s.430 (non-s.430 information). Here it cannot be inferred the Tribunal decided to include only that information it was obliged to include, namely, s.430 information. And, because of the unavailability of this inference, it cannot be concluded that the omission from the statement of reasons of non-s.430 information is to be explained, or at least necessarily explained, by the Tribunal’s deciding to only include s.430 information.

4. When one turns to the Tribunal’s reasons for decision in this case, it is clear the Tribunal included in its reasons for decision non-s.430 information, and a large volume of it. The extent of the non-s.430 information the Tribunal included can be gauged by comparing what appears in its reasons for decision under the heading “Claims and Evidence” with what appears under the heading “Findings and Reasons”. Under the former heading, the Tribunal sets out in great detail evidence that was before the Tribunal. Under the heading “Findings and Reasons”, on the other hand, the Tribunal states in a methodical way the findings it makes and, with respect to such findings, identifies the evidence and in some cases the reasoning underlying the findings.

1. Having included a large volume of non-s.430 information in its reasons for decision, the Tribunal’s failure to refer to the post-hearing submission in its reasons for decision cannot reasonably be explained by the Tribunal’s not including such reference because it considered itself not obliged to include it. The question is whether the Tribunal’s omitted to refer to the post-hearing submission in its reasons for decision because the Tribunal did not consider it. In my opinion, that is the reason the Tribunal did not refer to the post-hearing submission in its reasons for decision.

2. First, the Tribunal referred to and summarised (albeit in differing degrees) all written and oral evidence the applicant gave to the delegate and to the Tribunal up to and including the hearing of 30 August 2012. This manifests an intention or practice by the Tribunal to identify and summarise the written and oral evidence the applicant provided. Had the Tribunal member considered the post-hearing submission, then, consistently with that intention or practice, the Tribunal would have referred to and summarised it. As the Tribunal did not refer to the post-hearing submission, I infer the Tribunal did not consider it.

3. Second, the post-hearing submission, at least in part, appears to be an attempt to deal with a topic about which the Tribunal at the hearing asked the applicant questions. The Tribunal informed the applicant that country of origin information indicated there was a very high number of people attending unregistered churches in China, that the authorities have acknowledged the right of people to meet in private homes, and that this signalled a movement towards greater acceptance of religion and Christianity by the Chinese authorities. The Tribunal asked the applicant if she would like to comment on this. The Tribunal, in its reasons for judgment, records the applicant gave the following response:[33]

   “The applicant said she believes that Christians are still persecuted, and even though it hasn’t happened in her area, the threat is still there. The applicant also said that more and more people are losing faith in the Communist Party and joining churches, and when it gets to a certain level, she believes that there will be persecution. The Tribunal asked the applicant to clarify if her evidence was that they will not now being [sic] persecuted, but she fears persecution in the future due to her Christianity, and the applicant confirmed that this was her submission.”

   [33] CB174 [81]

4. The post-hearing submission contains information on this very topic. It expands the answers the applicant gave to the Tribunal at the hearing by referring to figures concerning kidnappings and punishments inflicted on Christians by the Chinese government authorities, and identifies a source or sources for the information. Having recorded in its reasons for decision the answers given by the applicant during the hearing on this topic, it is to be expected that the Tribunal would have also recorded in its reasons for decision the more detailed information relating to this topic contained in the post-hearing submission had the Tribunal in fact considered the post-hearing submission. The fact, however, the Tribunal did not, when recording the answer the applicant gave at the hearing about country of origin information, also refer to the post-hearing submission, indicates the Tribunal did not consider the post-hearing submission.

5. There is another set of reasons why, in my opinion, it should be inferred the Tribunal did not consider the post-hearing submission. If the Tribunal in fact considered the post-hearing submission, it obviously rejected its contents, preferring instead the country of origin information set out in its reasons for decision. If it had done that, however, the Tribunal would have been obliged under s.430(1)(b) of the Act to refer to that in its reasons for decision. That is so because the pre-hearing submission went to a material issue, namely, government policy and attitude to Christians in China. The obligation under s.430(1)(b) of the Act to set out "the reasons for the decision . . . will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings” and that “whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons”.[34] That the Tribunal did not set out in its reasons for decision its rejection of the matters set out in the post-hearing submission as one of the reasons for its decision indicates the Tribunal did not consider the post-hearing submission.

   [34] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65] (McHugh J)

6. Having concluded the Tribunal did not consider the post-hearing submission, I must now consider whether that constitutes jurisdictional error.

Consequence of failing to consider post-hearing submission

1. As I note at the beginning of these reasons, the Minister submitted that, in the first instance, I should assess the legal consequences, if any, of the Tribunal’s failure to consider the post-hearing submission by applying the principles and approach Robertson J applied in Minister for Immigration and Citizenship v SZRKT.[35] If, however, by doing that, I conclude the Tribunal made a reviewable error, the Minister submitted I should apply the principles and approach of a number of Full Court decisions which the Minister submitted differ from the principles and approach applied by Robertson J.

   [35] [2013] FCA 317

2. In my opinion, this is not an appropriate way to proceed. It is in principle unsound for a judge of this Court to apply the principles and approach of a single judge of the Federal Court in circumstances where it is submitted that those principles are not consistent with Full Court decisions. My task is to conscientiously attempt to ascertain from the authorities the Minister has identified the correct principles of law that govern the case before me, and to apply those principles. Given, however, that I have been informed the Minister proposes to seek special leave to appeal against the orders made in SZRKT, and it is possible the High Court may uphold the principles and approach Robertson J applied in SZRKT, it will be appropriate for me to consider SZRKT.

3. Accordingly, I propose to proceed as follows. First, I will set out what the Minister submits is the correct legal principle to apply in assessing the legal consequence of the Tribunal’s having failed to consider the post-hearing submission. Second, I will consider whether the authorities on which the Minister relies support that principle, and if not, what are the correct principles I should apply. Third, I will apply to the circumstances of this case the principles which in my opinion are the correct principles to apply. Finally, I will consider the decision in SZRKT.

Legal principles to apply – Minister’s submission

1. The Minister submits that a finding that the Tribunal failed to consider the pre-hearing submission invites consideration of authorities which have considered claims of jurisdictional error based on the Tribunal failing to consider matters which were before it. The Minister submits that those authorities support the following proposition:[36]

   (a)there is to be distinguished two categories of information, namely, a “relevant consideration,”[37] or a “claim” or an “important contention”[38] on the one hand, and, on the other, a “mere failure to deal with evidence, even evidence that the Court considers to be probative”; and

   (b)the Tribunal commits jurisdictional error if the Tribunal leaves unconsidered information that falls into the first class of matters, but not if it leaves unconsidered information that falls into the second class of matters.

   [36] Minister’s Submissions, [16]

   [37] In the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-41

   [38] Of the kind found in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

Authorities referred to by Minister

1. The first authority on which the Minister relies for this principle is Paul v Minister for Immigration and Multicultural Affairs, a decision of the Full Court.[39] In that case the applicant claimed the Tribunal failed to take into account information contained in a letter submitted to the Tribunal by the applicant’s solicitor which dealt with the existence of danger to Tamils in Sri Lanka by reason of their ethnicity. Allsop J (as his Honour then was, and with whose reasons Heerey J agreed) found that the Tribunal was aware of the letter, the Tribunal dealt with that element of the applicant’s claim to which the letter was relevant, and the Tribunal did in fact refer to the letter.[40] His Honour concluded that the applicant’s real complaint was that the Tribunal did not expressly deal with the evidence referred to in the letter and should have somehow preferred that material and that, so expressed, the circumstances of the Tribunal’s decision in that case could not be “a question of the failure to take into account a consideration made compulsorily relevant by the Act or regulation”. [41]

   [39] (2001) 113 FCR 396 (Heerey, Emmett, and Allsop JJ)

   [40] At [77]

   [41] At [78]

2. His Honour then said:[42]

   “Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction . . .  they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.”

   [42] At [79]

3. His Honour, however, considered the position may be different if the Tribunal had not considered an essential element or integer of the claim:[43]

   It may be that if the element of the appellant’s claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.

   [43] [79] (emphasis in original)

4. The second authority is MZWBW v Minister for Immigration and Multicultural Affairs.[44] There, the applicant claimed the Tribunal did not take into account evidence that he had received twenty five days training in the Guards Battalion. The Court accepted the Tribunal did not refer to that evidence, but it found it difficult to accept that the Tribunal did not have it in mind when it made its decision. The Court concluded, however, that even if the Tribunal had overlooked the training evidence, that would not have resulted in jurisdictional error. That was because the matter to which the training evidence was relevant “was squarely addressed” by the Tribunal, and the evidence to which the Tribunal failed to advert was “evidence which, if accepted, might have led it to make a different finding of fact”. The failure to advert to such evidence constituted a wrong finding of fact and it “is not jurisdictional error to make a wrong finding of fact”.[45]

   [44] [2005] FCAFC 94 (Black CJ, Sunberg and Bennett JJ)

   [45] [28]

5. In arriving at this conclusion, the Court set out two passages. One was the following passage from the reasons for judgment of Allsop J (as his Honour then was) in Rezaei v Minister for Immigration and Multicultural Affairs:[46]

   [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 231] does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account.[47]

   [46] [2001] FCA 1294

   [47] This passage was quoted at [26]. The Court noted that the passage was approved by Cooper and Finkelstein JJ in Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29]

6. The other passage to which the Court referred[48] was the following passage from the decision of the Full Court of the Federal Court in WAEE v Minister for Immigration and Multicultural Affairs:[49]

   It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. . . . Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact . . . . and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.

   [48] At [27]

   [49] [2003] FCAFC 184 at [46]

7. In Htun v Minister for Immigration and Multicultural Affairs,[50] the Court found the Tribunal failed to consider one of two asserted claims for a protection visa, and that this failure constituted jurisdictional error. Allsop J (as his Honour the was) said:

   This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) . . . . It is to be distinguished from errant fact finding.

   [50] (2001) 194 ALR 244 (Spender, Merkel, and Allsop JJ)

8. In Tran v Minister for Immigration & Multicultural & Indigenous Affairs[51] the Full Court held the primary judge was correct to apply to a review by the Administrative Appeals Tribunal of a deportation order under s.200 of the Act the principle that the Tribunal “is required to deal with all integers of an applicant’s claim. It is not required to refer to every piece of evidence placed before it”.[52]

   [51] [2004] FCAFC 297 (Kiefel, RD Nicholson and Downes JJ)

   [52] [6]

9. The next case is Applicant A169 v Minister for Immigration and Indigenous Affairs[53] where it was claimed the Tribunal had failed to consider particular country information contained in two DFAT reports. That submission was incorrect as a matter of fact which meant the Court did not have to consider whether the Tribunal’s not having considered the information might constitute jurisdictional error. The Court, however, said:

   “We are not to be taken to have accepted the proposition that the failure to refer to that particular material might have constituted jurisdictional error. There is a clear distinction between the Tribunal taking into account relevant considerations, and the Tribunal taking into account particular pieces of evidence. A relevant consideration is one which the Tribunal is obliged to take into account properly to address each of the integers of a particular claim for a protection visa. See e.g. the discussion in the joint judgment of McHugh, Gummow and Hayne in Yusuf at 347-348 [73]-[74]. The Tribunal did address the relevant consideration, namely whether the principal appellant’s fear of the Sri Lanka involved a fear of persecution on his part and if so whether it was well-founded having regard to past history. It has therefore addressed the relevant considerations by addressing each of the elements or integers of the claim put forward by the principal appellant: cf per Allsop J in Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79].

   [53] [2005] FCAFC 8 (Finn, Marshall and Mansfield JJ)

10. The sixth case identified by the Minister is Minister for Immigration and Citizenship v SZNPG.[54] In that case, the Court rejected a submission that the Tribunal did not take account of potentially corroborative evidence. North and Lander JJ said:

    Of course, if the RRT failed to consider an element of an applicant’s claim, that would amount to jurisdictional error because Div IV of Pt 7 of the Act requires a review of the whole of the applicant’s claims. In that case, the RRT would have failed to discharge its “imperative duties”: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 . . . . ; NABE v Minister for Immigrations and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 . . .

    However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claim is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE . . . .

    [54] (2010) 115 ALD 303

11. In the seventh case, MZXSA v Minister for Immigration and Citizenship,[55] the Court held that the Tribunal’s misunderstanding of evidence did not amount to jurisdictional error because the Tribunal correctly understood and considered the applicant’s claim.[56] The Court said:[57]

    A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 . . .  at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (No 2) (2004) 1441 FCR 1 . . . where the Full Court discussed extensively errors of fact and jurisdictional error in the tribunal. In Minister for Immigration and Citizenship v SZNP (2010) 115 ALD 303 . . . at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the tribunal has not considered those claims.

    [55] (2010) 117 ALD 441 (Keane CJ, Perram and Yates JJ)

    [56] The Court found, though, that  “the tribunal appears to have relied on its misunderstanding in only a peripheral way” (at p 458, [85])

    [57] At 458 [83]

12. Finally, the decision of SZQRW v Minister for Immigration and Citizenship[58] considered the consequences of the assessor’s asking an erroneous reference to the applicant’s evidence.[59] The Court said:[60]

    The Full Court in MZXSA drew a distinction between a failure to address a claim and its integers, on the one hand, and errant fact-finding on the other hand. It was the former, and not the latter which gave rise to jurisdictional error. The Full Court in MZXSA also endorsed the observations of North and Lander JJ that an error of fact based on a misunderstanding of the evidence in considering the applicant’s claim did not amount to jurisdictional error so long as it did not mean that the Tribunal had not considered those claims.

    [58] [2012] FCAFC 164 (Jacobson, Siopis and Murphy JJ)

    [59] On which the Court found the reviewer relied only in a “peripheral way”.

    [60] At [42]

Do the authorities support the Minister’s asserted principle?

1. Do these authorities support what the Minister contends is the principle which I should apply to determine whether the Tribunal’s failure to consider the post-hearing submission amounts to jurisdictional error? In my opinion they do not, or at least, they do not identify the central principle a Court must apply when considering a claim the Tribunal made a jurisdictional error because it failed to take into account evidentiary matter.

1. The authorities on which the Minister relies do, as the Minister submits, distinguish between, on the one hand, a “claim”, or an “integer” of a claim, or an “element” of a claim, or a “contention” that the applicant is entitled to protection and, on the other hand, evidence. In my opinion, however, the Minister is incorrect to the extent he submits these authorities stand for the proposition that whether or not the Tribunal’s failure to consider material constitutes jurisdictional error necessarily depends into which of two classes the material is classified: jurisdictional error if the material is classified a “claim”, “integer” or “element” of a claim, or contention of entitlement to protection; non-jurisdictional error if the material is classified as “evidence”.

2. That the authorities do not stand for this proposition is suggested in the passage from the reasons of judgment of North and Lander JJ in MZXSA. Their Honours said that “an error of fact based on a misunderstanding the evidence or even overlooking an item of evidence in considering the applicant’s claim is jurisdictional error”. Their Honours, however, qualified this by saying: “so long as the error, whichever it be, does not mean that the [Tribunal] has not considered the applicant’s claims”. In other words, the important thing is not whether or not the matter the Tribunal fails to understand is or is not evidence, but whether or not the Tribunal considered the applicant’s claims. And their Honours’ qualification implies that a misunderstanding of the evidence (including ignorance by the Tribunal of what evidence was before it) will result in jurisdictional error if as a result of that misunderstanding the Tribunal did not consider the claim before it.

3. This point was even more clearly made by Callinan J in Minister for Immigration and Multicultural Affairs v Bhardwaj[61] in a passage quoted with approval by the Full Court in NABE:[62]

   If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made as it was here, review the Minister’s decision. This means that the Tribunal must exercise the jurisdiction of reviewing the Minister’s decision: that is to say, it must make the decision on the application and any documents properly submitted by an applicant, with, as part of, or relevant to it. To fail, or refuse to receive and consider such a document, and to make a decision without regard to it, is a failure to exercise jurisdiction.

   [61] (2002) 209 CLR 597 at [163] (emphasis in original)

   [62] (2004) 144 FCR 1 at 15 ([48])

4. So much was also said by the Full Court in WAEE v Minister for Immigration and Indigenous Affairs[63] in a passage also quoted with approval by the Full Court in NABE:[64]

   It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426.

   [63] (2003) 75 ALD 630 at [44]

   [64] (2004) 144 FCR 1 at 15-16 ([49]) (emphasis added)

5. And these two quoted passages are consistent with the passage from the reasons for judgment of Gummow and Gaudron JJ in Bhardwaj:[65]

   The function of the Tribunal was to conduct a review of the delegate's decision in accordance with the Act. In particular, the Tribunal was required to give Mr Bhardwaj an opportunity to attend the hearing, to give evidence and put argument. And it is implicit from the terms of s 368(1) detailing the matters to be recorded in the written statement embodying a decision that the Tribunal was to reach a decision only after considering the evidence and the argument advanced against the cancellation of Mr Bhardwaj's visa.

   The failure of the Tribunal to give Mr Bhardwaj a reasonable opportunity to present evidence and argument had the consequence that it did not reach a decision after considering evidence and argument against the cancellation of his visa. That being so, it follows that the Tribunal did not conduct a review as required by the Act and the September decision was, thus, not a "decision on review" for the purposes of ss 367 and 368 of the Act.

   [65] (2002) 209 CLR 597 at [42] (emphasis added) (McHugh J agreeing [63])

6. Thus, in my opinion, these authorities show that the relevant legal principle that must be considered when it is claimed the Tribunal committed jurisdictional error by failing to consider evidence before it when conducting a review under the Act is this: such failure will amount to jurisdictional error if, as a consequence, it cannot fairly be said the Tribunal’s decision is a decision that was made after considering the evidence and arguments advanced by the applicant.

7. So stated, this principle does not identify the circumstances in which it would be appropriate to conclude the Tribunal’s failure to consider evidence will render its decision one that cannot fairly be said to have been made after considering the evidence and arguments before it. Here, the overriding consideration in determining such circumstances is the fact that a court exercising judicial review jurisdiction cannot consider the merits of the application before the Tribunal. In particular, the court cannot consider whether the Tribunal would have made a different decision had it considered the evidence; that was and remains a matter for the Tribunal. All a court can assess is whether the evidence the Tribunal failed to consider is such that, had the Tribunal considered it, the Tribunal could have made a different decision. If the evidence the Tribunal overlooks is of this nature, then the evidence may be described “material” evidence.

8. Thus, in my opinion, the circumstance that will render a Tribunal’s decision a decision that cannot fairly be said to have been made after considering the evidence and arguments before it will be the materiality of the evidence the Tribunal failed to consider. In other words, a Tribunal’s failure to consider evidence will result in jurisdictional error if the evidence the Tribunal failed to consider is such that it could have materially affected the Tribunal’s decision had the Tribunal considered it.

9. To apply this principle in any given case requires the Court to consider the claims for protection that were before the Tribunal, the evidence that can fairly be said was relevant to the claims, the reasoning by which the Tribunal arrived at its ultimate decision, and the relevance of the omitted evidence to the Tribunal’s reasoning. The fact the Tribunal does not consider any particular item of evidence will not necessarily constitute jurisdictional error. The evidence may obviously be irrelevant to any issue before the Tribunal. Or it might just be surplusage. And even if the omitted evidence is relevant, it “might be so insignificant that the failure to take it into account could not have materially affected the decision”.[66]

   [66] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 where Mason J, speaking of a different ground of judicial review, said: “Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision . . . . .”

10. Quite apart from my opinion that the authorities to which the Minister refers do not support the principle which the Minister says the Court should apply to the Tribunal’s failing to consider the post-hearing submission, there are, in my opinion, at least two other considerations against the acceptance of such a principle.

11. First, the asserted principle assumes there is a readily identifiable difference between information that falls within the categories of a “claim”, an “integer” or “element” of a “claim”, or an “important contention” on the one hand, and information that falls within the category of “evidence” on the other. But that assumption is not correct, or at least not self evidently correct. The distinction is notoriously difficult to draw with any precision in the analogous circumstance of rules of Court which require a pleader to plead facts, not evidence. Such difficulty is likely to be magnified in the context of the informal procedures by which an applicant claims a protection visa and the Tribunal determines such claims, where there is no requirement for an applicant or Tribunal to differentiate between claim and evidence.[67] It would be odd to make the lawfulness of the Tribunal’s exercise of jurisdiction depend on the application of a distinction between “claim” and “evidence” which is not mandated by the Act, and which in any event is a distinction drawn on shifting sands.

    [67] Compare SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], Selway J

12. Secondly, and more importantly, whatever the distinction might be between a claim and evidence, a claim can only be considered by reference to evidence that is before the Tribunal. In order for the Tribunal to properly discharge its duty to consider a claim before it, it must necessarily consider both the claim and the evidence that supports the claim. The Tribunal does not consider a claim, and therefore does not conduct a review as mandated by the Act, if it does not consider the evidence in support of the claim. Not to consider the evidence is not to consider the claim.

Did the Tribunal’s failure to consider the post-hearing submission constitute jurisdictional error?

1. On my analysis, therefore, the question I must consider in this application for judicial review is this: is the post-hearing submission of such a nature that, had the Tribunal considered it, it could have materially affected the Tribunal’s decision? In my opinion, that question must be answered in the affirmative.

2. An important, if not essential, element of the Tribunal’s reasons for affirming the delegate’s decision not to grant the applicants a protection visa was its acceptance of the independent country information which the Tribunal found showed that the “Chinese Government has acknowledged the right of people to meet privately and discuss religious issues” [68] and that the Chinese authorities have acknowledged the right of people to meet in private houses. [69] During the hearing, the Tribunal put the substance of these findings to the applicant for her comments. It was the substance of these matters which the applicant attempted to address in the post-hearing submission. And the matters the applicant included in the post-hearing submission – kidnappings, arrests, imprisonment, increased sentences – were in conflict with the independent country information on which the Tribunal based its decision; which means that, if the Tribunal considered the matters set out in the post-hearing submission, this could materially have affected the Tribunal’s decision.

   [68] CB180-181 [106]

   [69] CB181 [107]

3. If, contrary to what in my opinion is the effect of the authorities, the relevant principle I must apply for determining whether the Tribunal committed jurisdictional error is that contended for by the Minister, the question I must consider is into which category does the post-hearing submission fall. Is it a “claim”, “integer” or “element” of a claim, or an “important contention”? Or it is only “evidence”?

4. The Minister contends the post-hearing submission is not a “claim”, “integer” or “element” of a claim, or “important contention”. The Minister advances three submissions in support of this contention. The first is there is nothing in the post-hearing submission that amounted to any new case.[70] That is correct in the sense that the post-hearing submission was made in support of a claim the applicant has maintained from the day she applied for a protection visa. But the post-hearing submission did provide information which the applicant did not previously provide to the Tribunal. In that sense, the post-hearing submission can be said to constitute a new case. At the very least, it can be said the new information constituted an element of the applicant’s claim. Even if the post-hearing submission did not constitute a new case the Minister has not articulated why that circumstance deprives the post-hearing submission of the character it plainly has – a claim for protection.

   [70] Minister’s Submissions, [12]

5. The second submission the Minister makes in support of his contention that the post-hearing submission is not a “claim”, “integer” or “element” of a claim, or “important contention” is that the post-hearing submission did not contain anything “which, if accepted, would mean that the applicant had to succeed, or that the Tribunal’s decision was necessarily wrong”.[71] Nothing in any of the authorities on which the Minister relies, however, suggests that, for there to be jurisdictional error, the information the Tribunal fails to consider is information which if accepted would mean the applicant had to succeed, or that the Tribunal’s decision was necessarily wrong. That is not surprising, because it is not for a Court exercising judicial review jurisdiction to determine whether an applicant would or would not have succeeded before the Tribunal had the Tribunal considered the omitted information. That is a matter for the Tribunal. All the Court can do is assess whether the omitted information could have affected the Tribunal’s decision had the Tribunal considered the information.

   [71] Minister’s Submissions, [12]

6. The third submission the Minister makes is that the post-hearing submission does not have the status of a “claim” or “element” or “integer” of a claim because it does not have the like importance Robertson J attached to the document that was not considered by the Tribunal in SXRKT.[72] I disagree. As I have noted earlier in these reasons, the post-hearing submission refers to kidnappings, arrests, imprisonment, and increased sentences, apparently by reference to sources which it identifies. This information conflicts with the independent country information on which the Tribunal relied for finding the applicant did not have a well-founded fear of persecution on account of her Christian faith – a finding which was an essential element of the Tribunal’s decision to affirm the delegate’s decision not to grant a protection visa to the applicants.

   [72] Minister’s submission, [13]

The decision in Minister for Immigration and Citizenship v SZRKT.

1. I now turn to the decision of Minister for Immigration and Citizenship v SZRKT. In that case, Robertson J upheld the conclusion of the Federal Magistrate’s Court, although not that Court’s reasoning, that the failure by the Tribunal to consider an item of evidence – a document which purported to be an academic transcript of the applicant’s results at a university, and in particular, his having studied Persian – constituted jurisdictional error.

2. In my opinion, the facts and reasoning in SZRKT are not directly relevant to the case before this Court. Although Robertson J eschewed the distinction between claims and evidence as the discrimen of jurisdictional error, holding that “the fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”,[73] his Honour considered the issue before him largely by reference to authorities which expressly considered material said to be corroborative which the Tribunal did not consider. The post-hearing submission in this case is not corroborative material in the sense discussed in the cases to which his Honour referred.

   [73] [111]

Other grounds

1. The applicant was not legally represented at the hearing. And it appears that a lawyer did not draft the grounds of review set out in the application. Nevertheless, the matter proceeded before me on the basis that ground 1 of the application raises the two issues I have considered in these reasons.

2. The application, however, contained additional grounds. At the hearing, the applicant, through an interpreter, made short comments on some of the grounds. Nothing said by the applicant at the hearing disclosed any reviewable error by the Tribunal.

3. As for the grounds in the application, other than those I discuss above, for the reasons set out in the Minister’s submissions, I am of the opinion they disclose no reviewable error.

Conclusion and disposition

1. The Tribunal did not consider the post-hearing submission. Had the Tribunal considered it, the Tribunal could have made a different decision to the one it made. For this reason, the post-hearing submission was material, and, by not considering it, the Tribunal committed a jurisdictional error. In any event, the post-hearing submission was more than mere evidence; it constituted a claim or, at the very least, an element or integer of a claim made by the applicant.

2. Accordingly, I propose to order that a writ of certiorari be directed to the Tribunal quashing its decision and also to order that a writ of mandamus be directed to the Tribunal to determine the applicants’ application for review according to law.

3. As requested by the Minister, I also propose to order that his name as recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  23 August 2013