FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    This appeal by the Minister for Immigration and Border Protection (Minister) raises two issues of substance. The first is whether (as the primary judge effectively found) the Refugee Review Tribunal (Tribunal) committed a jurisdictional error by ignoring or failing to deal with apparently relevant evidence. The second (raised by a notice of contention) is whether the judgment of the primary judge should be affirmed on a different basis, namely that the Tribunal committed a jurisdictional error by failing to make inquiries about the subject of that evidence.

2    For the reasons that follow, the appeal should be dismissed with costs.

Background

3    The first respondent, SZSRS, is a Chinese national, who was born in Australia on 8 June 2011. Her parents, both citizens of the People’s Republic of China, separately arrived in Australia on student visas, the mother in 2006, the father in 2001. Both those visas were cancelled. Later, each parent, separately and unsuccessfully, applied for protection visas and each unsuccessfully sought reviews and mounted court challenges to the decisions of the Tribunal to refuse those applications.

4    After marrying in Australia in June 2009, the parents had a daughter. She was born in September 2009. In October 2010, when their daughter, the sister of SZSRS, was just over one year old, an application for a protection visa was lodged on her behalf. The Minister refused that application too. His decision was affirmed by the Tribunal. An application for judicial review of that decision also failed.

5    On 10 May 2012, when SZSRS was just ten months old, a protection visa application was lodged in her name, signed by her father on her behalf. The application was accompanied by a statement, again signed by her father on her behalf, which is expressed in the first person and reads as if it had been given or prepared by SZSRS herself. In view of her age that is, to say the least, odd. In it, SZSRS purports to speak of her fear of the future if she were to return to China given that she is an “out-of-the-plan” baby according to Chinese family planning law. “She” states that she would, as a result, be denied residency and become a “black child” and suffer discrimination. The statement also appears to claim that she might be harmed because she was a girl and “social values [in China] weight boys over girls and it is not uncommon to hear about girl babies being abundant (sic) and even killed”.

6    A delegate of the Minister refused the protection visa application. The delegate found that SZSRS did not have a well-founded fear of “Convention based persecutory harm” as a “black child” if she had to live in China. The notion of a well-founded fear of persecution in the applicant’s country of nationality, which is the primary criterion for the grant of a protection visa, has both a subjective element (does the applicant have a fear of being persecuted?) and an objective element (is that fear well-founded?): Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The delegate did not raise any issue about the statement purportedly given by SZSRS or appear to question whether, given her age, SZSRS was capable of entertaining any subjective fear of persecution in China. Whilst it may be accepted that, in the case of a minor, the subjective fears of a parent on behalf of the minor may be sufficient (Raza v Minister for Immigration and Multicultural Affairs [2002] FCAFC 82 at [18]), the statement lodged in support of SZSRS’s protection visa application purported to have been made by her, not her father.

7    An application for review of the adverse decision of the delegate was then filed in the Tribunal, again in SZSRS’s name, though signed by her father on her behalf.

Tribunal Hearing

8    The Tribunal conducted a hearing on 11 December 2013. The hearing was attended by SZSRS and her parents. Not surprisingly, given that SZSRS was just over 18 months old, she did not give evidence. Evidence was given by her father.

9    In addition to advancing the claim that SZSRS feared persecution arising from her supposed status as a “black child”, it appears that it was her father’s evidence that the application should be considered and granted on the basis of an additional claim based on SZSRS’s “own faith as a Christian and her parent’s Christian faith”. Virtually no attention is given in the Tribunal’s reasons to exactly how the father claimed that the family’s Christian faith could support a claim that SZSRS had a well-founded fear of persecution should she have to live in China. The Tribunal’s reasons do not record what, if any, evidence was given or received in relation to that issue.

10    At the beginning of the hearing the father produced a number of documents. The documents included:

1.    “Certificate of water baptism” certifying that SZSRS’s father was baptised by a pastor at the Hillsong Church on 22 April 2007.

2.    “Certificate of Baptism” (in the form endorsed by various churches as evidence of Christian baptism) certifying that SZSRS’s mother had been baptised by the Reverend Lee on 2 September 2012.

3.    Four “Membership Certificates” issued to SZSRS, her sister and her parents by the Reverend Lee on 2 September 2012 bearing the logo of the Wesley Mission and carrying quotations from the New Testament.

4.    A letter dated 23 December 2012 on the letterhead of Wesley Mission addressed “To Whom It May Concern” and signed by the Reverend Lee (the Reverend Lee’s letter).

11    The Reverend Lee’s letter is critical to the outcome of this appeal. It reads:

23-12-2012

To Whom It May Concern

Re: Statement of Testimony with Chinese Congregation Wesley Mission

I would like to greet in the name of our Lord, Jesus Christ.

I would like to acknowledge the service of [the father’s name appears here in full together with his date of birth] who is a member of Chinese Congregation at WESLEY MISSION. His wife is [the mother’s name appears here in full together with her date of birth] and two daughters [the two daughters’ names, including SZSRS, appear here in full with their dates of birth]. They have been baptized and became members of WESLEY MISSION on 02-09-2012.

They have been very faithful attendant of Sunday Service every Sunday.

They are kind and faithful and helping to meet the needs of many people who are in need.

It is good to have them in Australia and they can render helps to those who need their skill. They are now in Australia and feel at home more than any other places.

They have more and more new friends in Australia than other countries.

If I may be of further service in this matter Please don’t hesitate to contact me at Wesley mission. And my Mobile is [mobile phone number provided].

Thanks

    Yours truly,

Rev Kau Lee

Senior Minister for Chinese Congregation, Wesley Mission

Tel: [mobile phone and land line numbers provided]

[email address provided]

12    At the hearing, the Tribunal directed questions to the father concerning the Membership Certificates and the baptism of SZSRS and her sister. The Tribunal pointed out that the Membership Certificates were not baptism certificates. The father said that his wife and two daughters were baptised together, that he thought that the Membership Certificates were baptism certificates and that there were baptism certificates for his children which he undertook to supply to the Tribunal shortly after the hearing. Shortly after the hearing the father wrote to the Tribunal enclosing what he said were “the church certificates of baptism for my daughters.” The two enclosed documents were headed “Certificate of Infant Dedication”. They certify that SZSRS and her sister were “dedicated to the Lord with the expressed prayer of his parents that he may grow up to know, love and serve Jesus Christ as his personal Saviour and Lord” at the Wesley Mission on 2 September 2012. This is the same date as the Membership Certificates and the mother’s Certificate of Baptism.

Tribunal’s Decisions and Reasons

13    The Tribunal affirmed the delegate’s decision. In relation to the claim relating to SZSRS’s status as a “black child”, the Tribunal found that she was born within the family planning rules and that she would not be denied access to education, medical and social services in China. Because no appeal ground or contention turns on this aspect of the Tribunal’s findings and reasons, it is unnecessary to say anything more about it.

14    In relation to the claim based on SZSRS and her parents being Christian, the Tribunal found that it was “not satisfied that the…parents are Christian, and/or that [SZSRS] is a member of a Christian family”. Consequently, it found that SZSRS did not have a well-founded fear of persecution in China based on her own faith or the faith of her family.

15    The Tribunal’s reasons for so finding are set out in three paragraphs:

56.    In considering the current matter the Tribunal took into account the evidence provided by the applicant’s father during the hearing regarding the applicant’s alleged baptism and his own and the applicant’s membership of the Christian faith. As raised during the hearing, the applicant’s father provided a Membership Certificate for the child dated 2 September 2012. This is not a Baptism Certificate, (as is demonstrated by comparison to the Baptism Certificate provided for the mother also from Wesley Mission). After the hearing, by facsimile dated 15 January 2013, the applicant’s father forwarded a ‘Certificate of Infant Dedication’ for the applicant child, dated 8 June 2011 (sic.), from Wesley Mission. The Tribunal again notes that this is not a Baptism Certificate. The Tribunal also took into account that although the father said his religion was Christian, when asked which denomination he belonged to, he initially was unable to answer. The father then said that they were Wesley Mission denomination. This uncertainty on the father’s part leads the Tribunal to doubt the truth of this evidence.

57.    As raised by the Tribunal during the hearing, Baptism is very important in a Christian’s life and the certificate is a record or a symbol of this. However the fact that the applicant’s father had mixed up a Baptism Certificate with a Membership Certificate is not in the applicant’s father’s favour, or in the applicant’s favour. The applicant’s father said that there were two Baptism Certificates for the children and he will supply these by the end of the week. However, after the hearing the applicant’s father forwarded a ‘Certificate of Infant Dedication’ for the applicant child, dated 8 June 2011 (sic.), from Wesley Mission. The Tribunal notes that is not a Baptism Certificate, as can be seen by comparison with the mother’s Baptism Certificate from Wesley Mission.

58.    Based on the conflicting oral and documentary evidence provided by the applicant’s father as to the parents’ and applicant’s Christian denomination, and as to whether or not that applicant has been baptised, the Tribunal has found that it is not satisfied that the applicant’s parents are Christians, and/or that the applicant is a member of a Christian family. Nor is the Tribunal satisfied that the applicant will practise Christianity if she returns to Fujian Province. Therefore the Tribunal finds that the applicant does not have a well-founded fear of serious harm or persecution for a Convention reason based on her own faith and/or her family’s faith as Christians.

Judgment of the Federal Circuit Court

16    In the application for judicial review in the Federal Circuit Court three grounds were pleaded. First, it was said that the Tribunal had failed to consider the Reverend Lee’s letter. Second, it was said that the Tribunal had failed to inquire of the Reverend Lee whether he had baptised SZSRS in circumstances where the Tribunal could not reasonably discharge its statutory review function without making that inquiry. The primary judge accepted the first contention but rejected the second. The third ground, which the primary judge also rejected, has no bearing on the issues in this appeal.

17    In order for the application to succeed, it was necessary to show that the Tribunal had fallen into jurisdictional error.

18    In relation to the first ground, the primary judge found that the Tribunal had “overlooked” the Reverend Lee’s letter in conducting the review. This finding was based on the significance of the letter to an “important element” in the Tribunal’s finding that SZSRS and her family were not Christian, namely the supposed conflict between the oral evidence of the father and the documentary evidence he produced relating to SZSRS’s baptism. The primary judge reasoned that, given the significance of the letter, the Tribunal’s failure to refer to it indicated that it was overlooked.

19    On the question whether it was a jurisdictional error to overlook the letter, the primary judge said at [15]:

Although, as the Minister submitted, the Tribunal need not refer to every piece of evidence before it, failure to refer to important evidence may indicate that it has not been considered. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not so insignificant that failure to take it into account could not have materially affected the decision, and where such failure could possibly have deprived an applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in a manner required by the Act and is properly characterised as a jurisdictional error. I am satisfied that that is what occurred in this case.

20    His Honour found (at [18]) that, if the letter had not been overlooked, “it is possible that the Tribunal’s opinion on whether [SZSRS’s] family was a Christian one and whether [SZSRS] might practise Christianity in China if she were to be sent there might have been different and that this might have led to a different outcome of the review.”

21    In relation to the second ground, based on the Tribunal’s failure to inquire of the Reverend Lee whether he had baptised SZSRS, the primary judge referred to the following passage from the judgment of the plurality in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 (SZIAI) at [25]:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

22    The primary judge considered that, having regard to this statement of principle, the Tribunal was under no duty to inquire in this case. His Honour found (at [20]):

This case did not turn on the discovery of a critical fact but on the Tribunal’s regard to and assessment of the evidence already before it. In substance, [SZSRS] asserted that the Tribunal erred because it did not undertake an enquiry which she might have made and could have made if she had thought about it. Circumstances such as these do not meet the very narrow test described in SZIAI of inaction possibly amounting to a failure to review.

The Minister’s case on appeal

23    The Minister challenges the judgment of the primary judge in two ways.

24    First, the Minister contends (ground 1 of the notice of appeal) that the primary judge erred in finding that the Tribunal committed a jurisdictional error by failing to consider the Reverend Lee’s letter because his Honour should not have inferred that the letter was overlooked and, even if the letter was overlooked, that did not amount to a jurisdictional error.

25    Second, the Minister contends (ground 2 of the notice of appeal) that the primary judge erred in making certain findings concerning the content or effect of the Reverend Lee’s letter and the conclusions that could reasonably be drawn from the Certificate of Infant Dedication.

26    The two grounds are to an extent related, because, on the Minister’s case, the alleged erroneous findings meant that the primary judge overstated the significance of the letter to the Tribunal’s function. The Minister argues that this contributed to the erroneous findings that the letter was overlooked and that overlooking the letter amounted to jurisdictional error. Because of the interrelationship between the two grounds, some degree of repetition in these reasons is unavoidable.

27    In relation to the contention that the Tribunal erred in finding that the Reverend Lee’s letter had been overlooked, the Minister relies on authorities that establish that the Tribunal need not refer to every item of evidence and that a failure to refer to an item of evidence does not necessarily mean that it has not been considered: WAEE v Minister for Immigration and Citizenship (2003) 75 ALD 630 at [46]; Reece v Webber (2011) 192 FCR 254 at [65]. The Minister also relies on authorities that establish that the onus was on SZSRS to prove that the letter was not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [67] and [91]-[92]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (MZYTS) at [53]. The Minister then challenges the primary judge’s reasons for drawing the inference, in particular, that the letter was so significant to the question of whether SZSRS had been baptised that the Tribunal’s failure to refer to it in its reasons indicated that it was overlooked. The Minister’s submission, in essence, is that when closely analysed the letter was not or could not have carried any significant weight.

28    In relation to the contention that there was no jurisdictional error even if the letter was overlooked, the Minister characterised the Reverend Lee’s letter as a mere “piece of evidence” that was insubstantial and inconsequential. Ignoring such evidence, even if it could be considered to be “relevant material”, does not in the Minister’s submission, amount to jurisdictional error where the applicant’s claims are nevertheless understood and considered. The Minister relied on a number of authorities which, in his submission, draw the distinction between failing to deal with an applicant’s claim or claims, which will amount to jurisdictional error, and failing to deal with evidence relied on by an applicant, which amounts to no more than errant fact-finding.

29    The relevance of the distinction between claims and evidence and the authorities relied on by the Minister are considered later in this judgment. It is sufficient to note at this stage that the Minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (SZRKT), which was cited with approval by the Court in MZYTS at [68]-[70]. The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.

30    The Minister’s submissions concerning ground 2 do not raise any issue of principle. They relate to the contents of the two documents and the primary judge’s findings or observations about them. In relation to the Reverend Lee’s letter, the Minister’s submits that, while the letter does indicate that SZSRS, her sister and mother had been baptised, it is “neutral” as to when, where and by whom they were baptised. In relation to the Certificate of Infant Dedication, the Minister submits that there is no evidentiary basis for the primary judge’s statement that the certificate suggested that SZSRS had been brought to the church to be baptised. According to the Minister the certificate indicates no more than that the parents wanted their daughter to be “dedicated to the Lord”.

31    On the notice of contention counsel for SZSRS take as their starting point the statement of principle in SZIAI which was relied upon by the primary judge. They advance three propositions based on the three elements that were said in SZIAI to be necessary before jurisdictional error from a failure to inquire might arise: first, that the relevant critical fact was whether SZSRS had been baptised; second, that this fact was easily ascertainable because it was a matter of a simple phone call to the contact numbers provided by the Reverend Lee in his letter; and third, that the inquiry was obvious given the statements in the letter relating to the baptism of SZSRS and the other family members.

Did the primary judge err in finding that the letter had been overlooked?

32    The first question in relation to ground 1 of the notice of appeal is whether the primary judge erred in considering that the Tribunal “overlooked” the Reverend Lee’s letter. The answer to this question in turn depends on two matters: first, the significance of the fact that the Tribunal’s reasons made no reference to the letter, given the terms of s 430 of the Migration Act 1958 (Cth) (the Act); and second, the significance of the content of the letter to the reasons given by the Tribunal for disbelieving the evidence of the father that he, his wife and their children, including SZSRS, were Christians.

33    The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a Court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 and SZGUR.

34    The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].

35    That is the case here. In its reasons the Tribunal set out, as it was required by s 430 to do, its findings of material fact. Those findings were that it was not satisfied that SZSRS’s parents were Christians or that SZSRS was a member of a Christian family. The Tribunal’s reasons state that the evidence or other material on which that finding was based was the supposedly “conflicting oral and documentary evidence” provided by the father in relation to two matters: first, the “Christian denomination” of SZSRS and her parents, and second, “as to whether or not [SZSRS] has been baptised.”

36    The first of these matters is apparently a reference to answers given by the father at the hearing in response to questioning about his Christian denomination. One part of the Tribunal’s reasons records that the father responded that he was “Christian”. In another part of the reasons, the Tribunal records that he was initially unable to answer. The inconsistency is troubling. It may suggest a lack of attention to detail or, as counsel for SZSRS submitted, a rushed and careless approach. The submission has some force when the inconsistency is considered along with the date given in paragraphs [43], [56] and [57] for the Certificate of Infant Dedication. The date the Tribunal recorded as the date of the Certificate was in fact SZSRS’s date of birth. These features of the Tribunal’s reasons lend support to the inference the primary judge drew that the Reverend Lee’s letter had been overlooked.

37    The second and more significant matter upon which the Tribunal relied to reject the family’s claim to be Christian was that the documentation initially produced by the father in relation to SZSRS and her sister included “Membership Certificates” and not a baptism certificate. As we have already noted, when this issue was raised with him, the father said he thought that the Membership Certificates were baptism certificates. He subsequently said that there were baptism certificates for his two children and he undertook to provide them to the Tribunal after the hearing. The Tribunal reasoned that the fact that the father mixed up a baptism certificate with a Membership Certificate and later provided certificates that, in the Tribunal’s view, were not baptism certificates was significant given the importance of baptism in a Christian’s life. This appears to be the conflicting evidence (so-called) about whether or not SZSRS had been baptised to which the Tribunal referred in paragraph [58] of its reasons.

38    Two things should be emphasised in relation to this aspect of the Tribunal’s reasoning. First, there was no apparent conflict in the father’s oral evidence. He consistently maintained that SZSRS had been baptised, together with her sister and mother. Second, and more importantly, on any view the Reverend Lee’s letter bore directly on the issue whether SZSRS had been baptised. Even if (as the Minister argues) there was some ambiguity or lack of clarity in the statement “they have been baptized and became members of WESLEY MISSION on 02-09-2012”, a matter to which we will return in considering ground 2 of the notice of appeal, there could be little or no doubt that it directly corroborated the father’s evidence that SZSRS had been baptised. That is particularly so when the letter is read with the other documents that were before the Tribunal. The Membership Certificates, the mother’s baptism certificate and Certificates of Infant Dedication were all apparently signed by the Reverend Lee and dated 2 September 2012. If there was any ambiguity in the Reverend Lee’s letter, that ambiguity was removed by these documents.

39    In these circumstances, if the letter had been considered by the Tribunal, it could readily be expected that it would have been referred to in the Tribunal’s reasons. If the Tribunal regarded the contents as ambiguous, or lacking clarity, or for some other reason not entitled to significant weight, one could reasonably expect that those matters would have been discussed in the reasons. Yet the reasons made no reference whatsoever to the letter. In all the circumstances it was open to the primary judge to infer that the letter was not considered. That is effectively what the primary judge found when he found that the letter had been “overlooked”. We are not persuaded that in drawing the inference his Honour fell into error. This is not a case where the issue is whether the Tribunal failed to give proper consideration to the letter. The primary judge correctly found that it had not been considered at all.

40    The Minister mounted two arguments against the drawing of this inference.

41    First, he argued that the reference in the Tribunal’s reasons to the father’s “conflicting and documentary evidence” is likely to have included the letter. We cannot accept the argument. At paragraph [42] of its reasons the Tribunal purported to list the documents that were submitted at the beginning of the hearing. The Reverend Lee’s letter is not amongst them. Second, when properly analysed there was in fact no conflict between the father’s oral evidence (that SZSRS had been baptised) and the Reverend Lee’s letter. The only conflict, if it was a conflict, was between the father’s oral evidence and the Certificate of Infant Dedication which the Tribunal “noted” was not a baptism certificate.

42    The Minister’s second argument against the drawing of the inference that the Tribunal overlooked the Reverend Lee’s letter was that the letter did not have the significance or importance given to it by the Tribunal. The Minister’s arguments in this regard are considered in the context of ground 2 of the notice of appeal. It is sufficient at this point to say that we reject the submission that the letter was not significant or important to the issue that apparently troubled the Tribunal, namely whether SZSRS and her family had been baptised and were Christians. For the reasons already given, the letter was important evidence in relation to those matters.

43    It may readily be accepted, as the Minister’s submissions emphasised, that:

•    SZSRS bore the onus of proving that the letter had not been considered;

•    the Tribunal was not bound to refer to every item of evidence; and

•    a failure to refer to an item of evidence does not, of itself, necessarily mean that the item has not been considered.

44    But the primary judge found, in effect, that the onus had been discharged. His Honour did not merely rely on the Tribunal’s failure to refer to the letter. His conclusion that the letter had not been considered was based on the absence of a reference to it in the face of the importance of its contents to the Tribunal’s reasoning about the family’s Christian faith and the anterior question that the Tribunal plainly regarded as critical, namely, whether SZSRS had been baptised. This conclusion was certainly open.

45    It follows that the primary judge did not err in finding that the letter had been overlooked.

Was the primary judge wrong to find that the Tribunal’s failure to consider the letter amounted to a jurisdictional error?

46    The second question is whether the failure by the Tribunal to consider the Reverend Lee’s letter constituted jurisdictional error because, as SZSRS contends and the primary judge effectively found, by ignoring the letter the Tribunal constructively failed to exercise its jurisdiction.

47    The Minister sought to characterise the situation here as, at worst, the Tribunal ignoring a mere “piece of evidence”, as opposed to ignoring a claim or claims. Ultimately, however, he accepted that whether or not the Tribunal’s failure to consider the letter amounted to a jurisdictional error turns on the importance of the ignored material to the Tribunal’s process of decision-making. That was inevitable in the light of his ultimate acceptance of the correctness of Robertson J’s analysis of this kind of error in SZRKT.

48    In SZRKT the Tribunal rejected an applicant’s claims because it found the applicant not to be a credible witness. The adverse credibility finding was mainly based on the Tribunal’s conclusion that the applicant’s claim to have studied Persian was implausible. The primary judge found that the Tribunal ignored an academic transcript that tended to corroborate the claim and that the ignoring of that evidence constituted jurisdictional error. Robertson J upheld both findings.

49    In SZRKT the Minister submitted that failing to take the academic transcript into account did not amount to a jurisdictional error so long as it did not mean that the Tribunal overlooked the applicant’s claim or claims. In substance he made the same submission in the present case. But in SZRKT Robertson J rejected the submission as reflecting an approach to jurisdictional error that relied on categories or formulas. In particular, his Honour held (at [110]) that whilst the distinction between claims and evidence may be a useful tool of analysis, ultimately what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error. His Honour said (at [98]) that “although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.

50    His Honour continued at [111]-[112]:

    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. 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. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

51    The Minister’s application for special leave to appeal was dismissed: Minister for Immigration and Citizenship v SZRKT [2013] HCATrans 251.

52    In MZYTS the Tribunal failed to consider the most recent country information that was before it in relation to the political situation in Zimbabwe, the country from which the applicant for the protection visa had fled. In the Full Court the Minister contended that the error was factual in nature and did not go to jurisdiction. He relied on the same line of cases pressed upon us in the present appeal, in which distinctions are drawn between failing to consider a claim or an integer of a claim on the one hand and failing to deal with a piece of evidence on the other. Their Honours were “not persuaded the line is as bright, or the distinction as encompassing, as the Minister submits” (at [64]) and (at [70]) expressly approved the analysis of Robertson J in SZRKT at [111]. We respectfully agree.

53    The Minister, whilst not (or at least not directly) submitting that SZRKT was wrongly decided, maintained that the authorities which draw the distinction between ignoring evidence and ignoring a claim or an integer of a claim remain good law and that the distinction remains useful. The authorities referred to by the Minister in this context include: Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294; Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 and SZQRW v Minister for Immigration and Citizenship (2012) 134 ALD 454. The Minister maintained that a failure to consider evidence will only amount to a jurisdictional error if it means that the Tribunal ignored a claim.

54    It may be accepted that the authorities referred to by the Minister remain good law. Certainly they have not been overruled. It may be accepted, too, that the distinction between ignoring evidence and ignoring a claim can be useful. So much was accepted by Robertson J when his Honour described it (at [111]) as a “tool of analysis”. His Honour did not suggest that the previous authorities which had drawn the distinction were wrongly decided. The point his Honour was making was that it is too narrow an approach merely to ask in a case such as this whether the ignored material is a claim or part of a claim on the one hand or evidence on the other. Such an approach may provide the answer in some cases, but not in all. That is because, as his Honour also pointed out (at [98]), the Tribunal can fail to exercise its jurisdiction or fail to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision-making, acquires importance to the exercise of its jurisdiction. Some cases, including the category of case just referred to, may not comfortably fall on either side of the supposed claims/evidence divide, yet the error in ignoring the material may be serious and go to the exercise of the Tribunal’s functions. We respectfully agree with Robertson J’s analysis.

55    The circumstances of this case are relevantly indistinguishable from the circumstances in SZRKT. Central to the Tribunal’s reasons for rejecting SZSRS’s claims, as articulated by her father, was supposedly conflicting evidence about whether she had been baptised. Like the ignored academic transcript in SZRKT, the Reverend Lee’s letter was capable of corroborating the father’s evidence that she had been baptised. It was also direct evidence in support of the claim that SZSRS and her family were Christians. In this respect it was important to SZSRS’s claims and to the exercise of the Tribunal’s functions. Because the Reverend Lee’s letter was not considered by the Tribunal, the matters relied on by the Minister as undermining the significance of its contents were not explored. In SZRKT, in addressing essentially the same arguments that the Minister advances in this matter, Robertson J said (at [119]-[120]):

    The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.

    The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.

56    Virtually the same analysis is apt in the present case. Here, the Tribunal rejected the father’s evidence that he and his family were Christians and that SZSRS had been baptised. It did so on the basis of “the conflicting oral and documentary evidence” as to their Christian denomination and SZSRS’s baptism. As Robertson J observed in SZRKT, the Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. If, after addressing the Reverend Lee’s letter, the Tribunal had any nagging concerns, it could have raised them with the father or made further inquiries. The existence of possible ambiguities in the Reverend Lee’s letter, however, does not detract from its importance. The Reverend Lee’s letter was capable of reconciling the supposedly conflicting oral and documentary evidence that apparently troubled the Tribunal. If accepted, it could have alleviated the Tribunal’s concerns about the different nomenclature in the various certificates, all of which carried the signature of Reverend Lee. Consequently, it was centrally important to the Tribunal’s decision-making process.

57    It follows that the primary judge did not err in finding that, by failing to consider it, the Tribunal committed a jurisdictional error.

58    We should emphasise here that in coming to this conclusion, we do not endorse the primary judge’s statement of principle at [15] (extracted earlier). We agree with the Minister’s submission that it is possible to read paragraph [15] as amounting to a statement that jurisdictional error will necessarily be established if the ignored material is relevant (“might have had a bearing on the outcome of the review…not so insignificant that failure to take it into account could not have materially affected the decision”). That puts the matter too widely. The primary judge appears to conflate the question of whether the Tribunal made a jurisdictional error with whether relief should be refused in the exercise of the Court’s discretion. As Robertson J made clear in SZRKT (at [97] and [122]), merely to ignore relevant material does not establish jurisdictional error. In relation to similar reasoning by the Federal Magistrate whose judgment was under appeal in SZRKT, Robertson J said:

122.    For these reasons, although I do not agree with the reasoning of the federal magistrate I find that his Honour’s conclusion and orders were correct. In particular, the proposition that it is always a jurisdictional error to ignore “relevant material” is too widely expressed as is the reasoning in [36] of the federal magistrate’s reasons that it is always jurisdictional error unconsciously to ignore corroborative evidence.

59    We again respectfully agree. If the reasoning of the primary judge in paragraph [15] of the judgment amounts to a statement that it is always a jurisdictional error to ignore relevant material or corroborative evidence, we do not agree with that reasoning. However, for the reasons we have given, his Honour’s conclusion and orders were correct.

The other alleged errors in the primary judge’s findings about the letter – ground 2

60    The Minister complained about the statement in paragraph [14] of the primary judge’s reasons (repeated at [17]) that the Reverend Lee’s letter stated that SZSRS and her family had been baptised on 2 September 2012. The Minister drew attention to the precise words used in the letter (“They have been baptized and became members of the WESLEY MISSION on 02-09-2012”). He accepted that “they” was a reference to SZSRS, her mother and sister but submitted that the words were “neutral” as to when they were baptised, who baptised them or where, or in what church.

61    The difficulty with this ground is that, even if the primary judge made the allegedly erroneous factual findings in relation to the contents or effect of the Reverend Lee’s letter and the Certificate of Infant Dedication (the subject of this ground of appeal), nothing of significance turns on them. For the reasons given in relation to ground 1, the asserted errors, even if made out, do not detract from the importance of the letter to the issues and findings made by the Tribunal. Accordingly, they do not alter our conclusion that the primary judge did not err in inferring that the Tribunal overlooked the letter and that this amounted to jurisdictional error.

62    In any case, we reject the Minister’s submission that the primary judge erred in summarising the effect of the letter as being that SZSRS and her mother and sister had been baptised at the Wesley Mission on 2 September 2012. That is at least an available reading of the letter, even if read in isolation. When considered with the other evidence, however, it is a compelling one. The Tribunal had the mother’s baptism certificate which was signed by the Reverend Lee and dated 2 September 2012. It also had the Certificates of Infant Dedication of the same date (though each time the Tribunal referred to the dates of the certificate issued for SZSRS it gave the wrong date) and signatures that appeared to be the signature of the Reverend Lee. The Tribunal also had the father’s oral evidence that SZSRS, her sister and mother were all baptised on the same day. When read with the other documents submitted by the father and the father’s oral evidence, the meaning of the Reverend Lee’s statement that “they (SZSRS and her sister and mother) have been baptized and became members of WESLEY MISSION on 02-09-2012)” is tolerably clear. This is also an answer to the Minister’s submission that it is not clear from the letter whether the Reverend Lee had personal knowledge of the baptism. Since on the face of the documents he was signatory to the mother’s Certificate of Baptism, the Membership Certificates and the Certificates of Infant Dedication, the obvious inference is that he did. If the Tribunal had considered the letter and had this, or any other, concerns about the clarity or veracity of its contents, one might reasonably expect those issues to have found their way into its reasons.

63    The Minister’s argument concerning the Certificate of Infant Dedication is that it was not open to the primary judge to say that it “suggested that [SZSRS] had been brought to Church by her parents to be baptised a Christian.” There is no doubt that the certificate does not, in terms, refer to baptism. Yet, the primary judge did not find that it did. Rather, the passage of the reasons challenged by the Minister is no more than part of the primary judge’s reasoning that any doubt about whether SZSRS had been baptised could have been assuaged by the Reverend Lee’s letter. There is no error in that reasoning. In any event, we doubt that the primary judge erred in inferring that the Certificates of Infant Dedication suggested at least an intention on the parents’ behalf that SZSRS be baptised a Christian. Like the primary judge, we have some difficulty in seeing the significance of the rigid distinction the Tribunal saw between these certificates and baptism certificates, particularly given that the material question was whether SZSRS and her family were Christian. But even if the primary judge did overstate the inference or conclusions able to be drawn from the certificates, nothing turns on that in relation to the disposition of this appeal.

Conclusion in relation to the appeal

64    The Minister has not made out either ground of appeal. The primary judge did not err in concluding, in effect, that the Tribunal committed a jurisdictional error by failing to consider the Reverend Lee’s letter in circumstances where, having regard to the Tribunal’s findings, that letter was important to the exercise of the Tribunal’s review function. The appeal must be dismissed with costs.

Notice of Contention

65    Given the findings in relation to the Minister’s appeal it is unnecessary to consider SZSRS’s notice of contention.

Associate:

Dated:    6 March 2014