FEDERAL COURT OF AUSTRALIA

MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68

ORDERS

THE COURT ORDERS THAT:

1.    The orders of the Federal Circuit Court of Australia made on 8 August 2017 be set aside, and in lieu thereof:

(i)    a writ of certiorari be issued, quashing the second respondent’s decision of 11 November 2014; and

(ii)    a writ of mandamus be issued, remitting the matter to the second respondent and requiring the second respondent (differently constituted) to determine the matter according to law.

2.    The first respondent pay the appellants’ costs of the appeal and of the proceeding in the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

THE COURT:

1    The relevant background facts are not in dispute. The following background matters are largely taken from the background facts set out in the appellant’s submission and adopted in the submission of the first respondent (“Minister”).

2    The appellants are a mother (“appellant mother”) and her child (“appellant child”). The appellant mother came to Australia from China as a student in December 2007. Her student visa was cancelled in 2010. The appellant child was born in Australia on 24 September 2012. The appellants applied for protection visas (“visas”) in April 2013.

3    The appellant mother claimed to fear persecution on the basis of her Christian faith and her membership of a particular social group, that of single mothers in China who have given birth to a child out of wedlock. The appellant mother claimed she and the appellant child would face discrimination and harm in China, including because the appellant child would be considered a “black child”. The appellant mother claimed she would be fined for breaching China’s family planning laws. At issue on the appeal is whether the appellant mother also made a claim that she feared that because of her inability to pay such a fine, she would be subjected to physical harm, including the possibility of forced sterilisation.

4    A delegate of the Minister refused the appellants’ protection visa applications on 9 January 2014. On review before the second respondent (“Tribunal”), that refusal was affirmed on 11 November 2014. The appellants then sought judicial review before the Federal Circuit Court of Australia. In a judgment published as MZAOL and Anor v Minister for Immigration and Anor [2017] FCCA 1837, the primary judge dismissed the appellants’ application for judicial review. The appellants appeal from that dismissal.

5    The grounds of appeal are, in summary:

i.    that the primary judge erred in finding that no claim arose from the appellant mother’s claims and/or the evidence before the Tribunal that the appellant mother was at risk of, or in fear of, serious harm from forced sterilisation (“Ground 1”);

ii.    the primary judge erred by finding that the Tribunal’s non-disclosure of the existence of a certificate purportedly issued under s 438 of the Migration Act 1958 (Cth) (“the Act”) did not deprive the appellants of the possibility of a successful outcome (“Ground 2”); and

iii.    on a ground not raised below, but in relation to which leave to raise the ground has been granted, that the Tribunal’s decision was affected by jurisdictional error in the form of apprehended bias (“Ground 3”).

ground 1

6    The primary judge rejected the appellants’ contention that the appellant mother had made a claim before the Tribunal to fear harm by reason of forced sterilisation. With respect to the primary judge, we consider that his Honour erred in reaching that view.

7    It is apparent from the material before the Tribunal and the submissions made to it that the appellant mother’s fear of sterilisation was raised and, as we will explain, it was raised as the feared consequence for the appellant mother of her inability to pay a fine likely to be imposed on her for contravening China’s family planning laws.

8    In the appellants’ statement which accompanied their application for the visas (“appellants’ statement”), the appellants referred to China’s family planning laws in the context of the appellant mother being an “unwed mother” stating that (errors in original):

families like us will be punished by the family planning law if returned. If fines are not paid, the child will not be able to register for residency and education and medical issues will be big problems. Without family aid, we cannot survive.

My sister-in-law was persecuted by the family planning office. After she miscarried and had a sterilisation operation, she suffered serious complex. Her physical condition is so poor that she almost lost her working capacity. I have much concern that such tragedy will happen to me.

9    That was followed by the following statement:

I have not completed our degree. It is unlikely I can be employed if going back and we will have no guarantee for basic living standard. Therefore my child and I are applying for the Australian government protection for the sake of my religious freedom and innocent child free from social discrimination and harms.

10    The appellant mother’s claimed fear that she may be sterilised was appreciated (although not accepted) by the delegate of the Minister in rejecting the appellants’ application for the visas. In the delegate’s decision record, the delegate set out what was said to be a summary of the appellants’ statement. For reasons which are not clear, but which may help to explain the way in which the Tribunal dealt with the claims made by the appellants, the summary interposed the claim about living standards between what appears to be two aspects of a single claim made by the appellants as to their fear of being punished for breaching China’s family planning laws. Relevantly, the summary said this:

•    She is now an unwed mother. Her boyfriend left her and his family are against her faith and reject her daughter. Her financial situation is very difficult, and she has no stable income and is in debt. Families like hers are punished by the family planning law in China. If fines are not paid, her child will not be able to register for residency, and education and medical care will be a big problem. She has not completed her degree, and it is unlikely that she can be employed if she returns to China, and has not [sic] guarantee of achieving a basic standard of living. Without family aid, they cannot survive.

•    Her sister-in-law was prosecuted by the family planning office. She miscarried and had a “sterilisation operation” and suffered. She is afraid that this will happen to her.

11    Both the appellants’ statement and the decision record of the delegate were before the Tribunal. In its reasons (at [3]) the Tribunal expressly referred to the delegate’s decision record and set out what the Tribunal referred to as the delegate’s “findings”, which also set out the delegate’s summary of the claims made by the appellants. Noting that the Tribunal characterised the circumstances relating to the appellant mother’s sister-in-law as a “further” claim, the Tribunal summarised the content of the delegate’s decision record dealing with the appellant’s claims as follows (emphasis added):

•    the first named applicant is now an unwed mother as her boyfriend left her. His family are opposed to her faith and do not accept her daughter. She is in a difficult financial situation as she has no stable income and is in debt. She will be punished by the family planning laws and if she is unable to pay the fines, her daughter will not be able to register for residency and this will limit her access to education and health care;

•    the first named applicant claimed that she would face employment difficulties in China as she did not complete a degree here or in China and would have no guarantee of achieving a basic standard of living for herself and her daughter, without family assistance;

•    the first named applicant further claimed that her sister in law had been prosecuted by the family planning office in China and suffered a miscarriage followed by a sterilisation operation, which the first named applicant feared might happen to her;

12    In the proceeding before the Tribunal, a written submission was received from what the Tribunal (at [7]) described as the “applicants’ agent” and which the Court was informed was the appellants’ legal representative. Some 26 pages from that submission are included in the reasons of the Tribunal.

13    Relevantly, the submission stated that the appellants relied on the appellants’ statement. The submission referred to the appellants’ claims of persecution arising from membership of particular social groups. In the case of the appellant mother, it was submitted that single mothers from China can be considered to constitute a particular social group and that if the appellant mother was returned to China both she and her child would face discrimination and harm in the context of the “Family Planning Policy” in China, which provides for serious penalties for registration of children born outside of marriage. In relation to the appellant child, the social group contended was that of “black children” from China. It was submitted that the birth of such a child would be in breach of Chinese “Family Planning Laws” and that such children are subjected to ongoing discrimination in all facets of life. In both cases the submission referred to the likely imposition of fines and the appellants’ inability to pay any fines imposed.

14    By reference to country information contained in an Austrian Centre for Country of Origin and Asylum Research and Documentation report, the submission contended that “many issues are faced by single mothers and their children in China. In particular, the report notes that most single mothers struggle to pay the applicable fees. Further, the report signifies atrocities are committed by law enforcement officers in the [appellant mother’s] home area”.

15    A range of extracts from various country information reports were then included in the submission accompanied by commentary from the appellants’ legal representative. That commentary referred to family planning laws being enforced including by way of abortions or sterilisations. Most relevantly, the commentary included the following statement (emphasis added, errors in original):

A report by the United Kingdom Border Agency, China under the heading ‘Forced abortion sterilisation under ‘one child policy’ signifies that in the event individuals are unable to pay fines implemented for their breach of Family Planning Laws they are subjected to harsh measures. We note that given that the [appellant mother] has given birth to a child outside of wedlock at a young age, severe fines would be implemented upon her return. We submit that it would extremely difficult for her to pay these fines and as such she would be subjected to harsh, inhumane treatment.

16    That statement was immediately followed by an extract from the report referred to in the following terms (emphasis added):

Penalties for violating family planning laws are strict, leaving many women little choice but to abort pregnancies. In the case of families that already had two children, one parent was often pressured to undergo sterilisation. (28.27 and 28.28). Reports of physical coercion by Officials trying to meet birth targets continued through 2010.

Freedom House reports that compulsory sterilisation and forced abortion by local officials have become less common, but still occur fairly frequently.

17    The submission also dealt with complementary protection. In that respect, dealing with whether the appellant mother would face significant harm arising from cruel and inhuman treatment or punishment, the appellants’ submission said this:

In light of the fact the [appellant mother] has had a child out of wedlock and her family have had ongoing issues with authorities in the past, we submit there is a risk that she would be subjected to severe physical and mental pain from the Chinese Authorities if returned to China. In particular, we note that it is evident that the [appellant mother] does not have the capacity to pay any fines that would be imposed pursuant to family planning laws.

18    The applicable principles are settled and were not in dispute. The Tribunal was required to consider and determine each of the claims expressly raised by the appellants and also those that were apparent on the material before the Tribunal. Where a claim is not articulated expressly it must clearly emerge from the material: see SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [37]; see also AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [17]-[18]. In Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287, Mansfield, Gilmour and Foster JJ endorsed the helpful observation made by Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [70] that a claim must:

arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

19    It seems “tolerably” clear from the terms of the appellants’ statement as supplemented by their lawyer’s submission that the appellant mother made a claim that she feared that should she be returned to China, the consequences of her non-compliance with China’s family planning laws included the likelihood that she may be subjected to physical harm, including the possibility of forced sterilisation.

20    The reasons given by the Tribunal make it plain that the Tribunal appreciated that the appellants had made a claim based on a fear arising from the consequences of the appellant mother having contravened China’s family planning laws. As far as the Tribunal appreciated the extent of that claim, it seems to have been primarily dealt with in the Tribunal’s reasons at [92]-[101] under the heading “Claims relating to [having] a child out of wedlock and ‘illegal’ or ‘black’ children”.

21    Those reasons addressed the family planning laws, the quantum of the fine that the Tribunal considered the appellant mother would be required to pay and the Tribunal’s finding that the appellant mother would have the capacity to pay the fine likely to be imposed. The Tribunal concluded at [101] that:

Accordingly, the Tribunal finds that the applicant’s daughter would be able to be registered on return to China and would not suffer any of the claimed harm associated with being an unregistered, or ‘black’ child. It finds that she would not face a real chance of serious harm for this reason either now or in the reasonably foreseeable future.

22    However, as that conclusion illustrates, all that was considered in this part of the Tribunal’s reasons was the claimed fear that the appellant child would be an unregistered or “black child” and would suffer harm as a result of the appellant mother’s inability to pay the fine. In this part of its reasons, the Tribunal made no reference to the feared consequences for the appellant mother herself (including sterilisation) arising from her non-compliance with family planning laws and her inability to pay the consequent fine.

23    In rejecting the contention that a claimed fear of forced sterilisation was raised before the Tribunal, the primary judge’s reasons focus upon various exchanges between the Tribunal and the appellant mother at the Tribunal hearing. His Honour was correct to say (at [19]) that in the transcript of that hearing, the phrase “fear of being compulsorily sterilised” is nowhere to be found. It may also be correct, as the primary judge suggested (at [20]), that the focus of exchanges between the Tribunal and the appellant mother at the Tribunal’s hearing was on the likely imposition of a fine on the appellant mother for breaching China’s family planning laws. But all of that only goes so far and, in context, does not suffice to justify the primary judge’s ultimate conclusion.

24    The appellant mother’s fears of being subjected to physical harm, including by way of sterilisation, were expressed in both the appellants’ statement and in the submission made by their legal representative. The appellant mother’s claim as to the likely consequences for her of her alleged inability to pay any fine imposed, made in the appellants’ statement and elaborated upon in the extracts from her lawyer’s submission (set out above), cannot be said to have been abandoned or not pressed because the focus of the questioning at the Tribunal hearing was on the imposition of a fine rather than the potential consequences of the appellant mother’s inability to pay it.

25    The primary judge erred in his observation (at [24]) that in so far as the country information referred to forced sterilisation, it was confined to the sterilisation of men and not women. His Honour’s observation (at [25]) that some of the country information “contained vague and imprecise references to legal sterilisation” may be accepted. However, the Minister’s submission, reliant on that observation, that the country information was extremely general and was not tied directly to the appellant mother should not be accepted. The country information before the Tribunal needs be read in context, including by reference to the appellants’ statement and the commentary in the legal submission which introduced the country information. When so read, the general information referred to was sufficiently tied to the appellant mother’s personal circumstances.

26    Although we take into account that the appellants were represented by professional advisors, in our view those advisors sufficiently articulated the claim in question. With particular reference to the material extracted above, a reasonably competent Tribunal should have appreciated that the appellant mother had made a claim that she feared that, as a consequence of her non-compliance with China’s family planning laws, she may be subjected to physical harm including the possibility of forced sterilisation.

27    For those reasons, we would accept the appellants’ contention that the primary judge erred in finding that the appellant mother had not made such a claim.

28    In circumstances where the Court so found, the Minister raised an alternative contention that such a claim was dealt with by the Tribunal at [104] of its reasons. At [104] the Tribunal said this:

The Tribunal has considered the applicant’s claim that her sister in law underwent an abortion at the behest of the Family Planning Authorities and that she fears receiving similar treatment. The Tribunal notes, however, that the applicant’s evidence at hearing was that her sister in law was told that she would not be able to register her first 2 children if she proceeded with a third pregnancy, which she then terminated. Without minimising this incident, the Tribunal finds that the applicant is not in the same position as her sister in law and there is no indication that she is likely to be in the near future. Accordingly, the Tribunal does not accept that the applicant would be subject to such treatment or face harm of this kind.

29    The Minister also relied on what the Tribunal had earlier said at [36] as follows:

The Tribunal asked the applicant whether anything had happened to her sister-in-law besides two fines. The applicant said that her sister in law was pregnant for a third time and went to the authorities to apply for a marriage certificate. She was told that she had to have an abortion and then a sterilisation operation otherwise she would not be allowed to get the marriage certificate. The applicant said that her sister in law had to do this in order to the get the marriage certificate.

30    As is apparent, [104] of the Tribunal’s reasons, in terms, only addresses a fear of a forced abortion. However, the Minister contended that [104] had to be read in the context of [36], where the full extent of the treatment suffered by the appellant mother’s sister-in-law is given (that is, abortion followed by sterilisation). The Minister contended that when [104] is read in that context, [104] is to be understood as addressing the appellant mother’s fear of sterilisation.

31    We would accept that the subject of [104] is what the Tribunal considered to be a claim made by the appellant mother that she “fears receiving similar treatment” to that received by her sister-in-law. The terms of [36] make it plain that the Tribunal was aware that the treatment received by the sister-in-law was not confined to a forced abortion (as the terms of [104] suggest) but included forced sterilisation.

32    However despite that conclusion, we do not accept the Minister’s contention that [104] is to be understood as addressing the claim made by the appellant mother that, consequent upon her inability to pay the fine for breaching China’s family planning laws, she would be subjected to physical harm, including the possibility of sterilisation. In its terms [104] does not address any feared consequence or punishment resulting from the appellant mother’s inability to pay any fine imposed by the Chinese authorities upon an unwed mother. The reasons given for the dismissal of the claim dealt with at [104] are not rationally connected to a consideration of such a claim. Those reasons suggest that the Tribunal had in mind a different claim, one based on circumstances such as those which attended the appellant mother’s sister-in-law who was pregnant for the third time and was trying to obtain a marriage certificate.

33    The appellant mother never claimed that she feared being sterilised for the reasons that her sister-in-law had been. Her fear of sterilisation was to be understood as connected with her fear that, as a result of her breach of China’s family planning laws, a fine would be imposed upon her which she could not pay and that she would therefore be physically punished.

34    The reference made in the appellants’ statement to the sterilisation inflicted on the sister-in-law should not have been understood by the Tribunal as a “further” claim as the content of [3] (referred to above at [11]) and [104] under the heading “Residual Claims” of the Tribunal’s reasons suggest that it was. It was not a stand-alone claim based on the appellant mother being in the same or similar position to that of her sister-in-law. The reference to the sterilisation of the sister-in-law in the appellants’ statement should have been understood as an example of the punishment which the appellant mother feared may be imposed on her for her own particular breach of the family planning laws. That the appellant mother feared punishment of that kind in respect of her particular contravention of those laws was not only raised in the appellants’ statement but was also raised in the legal submission made for the appellants by reference to the country information there referred to.

35    We have considered whether [104] should be regarded as a poorly expressed attempt by the Tribunal to have rejected sterilisation as a well-founded and feared consequence of the appellant mother’s particular contravention of China’s family planning laws, on the basis that sterilisation is inapplicable to that kind of contravention and only applicable to contraventions of the kind committed by the sister-in-law. If that was so, the Minister’s contention that the claim made by the appellant mother was dealt with would be on a stronger footing. On balance and despite applying a generous non-literal approach to the content of [104], we are unable to reach that conclusion. There are three reasons.

36    First, there is no basis either in [104] or elsewhere in the Tribunal’s reasons to support the conclusion that the Tribunal properly appreciated that the appellants had claimed to fear two consequences arising from an inability to pay the likely fine. The first for the appellant child, as a “black child”, and the second for the appellant mother. The first claimed consequence was extensively dealt with by the Tribunal. The second not at all. Nowhere in the reasons of the Tribunal is the asserted inability to pay the fine addressed by reference to the feared consequences of non-payment for the appellant mother herself.

37    Second, as indicated already, the Tribunal seems to have treated the appellant mother’s fear of physical harm to her as a “further” claim disconnected from the alleged inability of the appellant mother to pay the likely fine.

38    Third, in order to come to the view that sterilisation was inapplicable as a punishment for the particular circumstances of the appellant mother, the Tribunal would had to have considered more than just the appellant mother’s reference to her sister-in-law’s circumstances. It was also necessary for the Tribunal to address the information about the use of sterilisation as a punishment for the contravention of family planning laws in the country information upon which the appellants relied. The Tribunal’s reasons reveal no such consideration.

39    For those reasons, it seems to us that at [104] the Tribunal dealt with and dismissed a claim not made by the appellant mother. The Tribunal failed to perform the statutory task required of it by not dealing with the claim actually made by the appellant mother, that, by reason of her inability to pay the fine which would likely be imposed upon her for breaching China’s family planning laws, she may be subjected to physical harm including sterilisation. As the primary judge failed to identify that jurisdictional error, the primary judge erred and Ground 1 of the appellants’ Notice of Appeal should be upheld.

40    We should add that we are conscious of the finding made by the Tribunal in addressing the claimed fear for the appellant child, that the appellant mother could pay the fine likely to be imposed by the Chinese authorities. That seems to have been the conclusion reached at [93]-[98] of the Tribunal’s reasons. It may have been open for the Minister to contend that, in the face of that finding, the Tribunal’s failure to deal with the claimed consequences of non-payment of the fine upon the appellant mother was immaterial, in that the appellants were not deprived of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3. Conspicuously, and despite the issue of materiality being central to the Minister’s contentions made in opposition to Ground 2 of the appeal, the Minister did not put the materiality of the failure to address the appellant mother’s claim in issue, either before the primary judge or on the appeal.

ground 2

41    Prior to making its decision, the Tribunal received a notification purportedly given under s 438(2)(a) (“s 438 notification”) of the Act that s 438(1)(b) applied to certain information (“impugned information”) provided to the Tribunal pursuant to s 418 by the Secretary of the Department of Immigration and Border Protection (“Secretary”). We will detail the impugned information later in these reasons. A brief description of the impugned information was given in the appellants’ submission and will suffice for present purposes. The impugned information made reference to:

(a)    the appellant mother’s alleged “links to Asian crime gangs”;

(b)    the appellant mother allegedly witnessing a horrific attack on a Chinese student and her lack of cooperation with police; and

(c)    information that the appellant mother’s student visa was cancelled for unsatisfactory attendance and non-commencement of studies and indications she is not intending to complete her studies.

42    Section 438 of the Act provides:

(1)    This section applies to a document or information if:

(a)    the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)    the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)    If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:

(a)    must notify the Tribunal in writing that this section applies in relation to the document or information; and

(b)    may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)    If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:

(a)    may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and

(b)    may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.

(4)    If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.

43    Where the Tribunal is notified that s 438 applies to a document or information (“notified information”), the Tribunal has a discretion under s 438(3)(a) to have regard to any matter contained in the notified information for the purposes of exercising its powers. The Tribunal also has a discretion under s 438(3)(b) to disclose, in certain circumstances, any matter contained in the notified information to the applicant.

44    It was accepted before the primary judge that the s 438 notification given in relation to the impugned information was invalid. On that basis, the primary judge considered whether the Tribunal had made a jurisdictional error, namely, whether the Tribunal’s failure to disclose the existence of the s 438 certificate and the impugned information denied the appellants the possibility of a successful outcome.

45    The primary judge rejected the contention that the appellants had been denied the possibility of a successful outcome. Applying the observations of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60], the primary judge considered whether the Tribunal’s failure to disclose the existence of the s 438 certificate and the impugned information deprived the appellants of the possibility of a successful outcome. The primary judge determined that it did not. The primary judge was not persuaded that an inference could or should be drawn that the Tribunal was influenced by the impugned information.

46    After the primary judge published his judgment, a number of judgments of this Court and of the High Court dealing with s 438 notifications and procedural fairness were delivered. The applicable principles are discussed in SZMTA. It is sufficient for current purposes to observe, by reference to those principles, and in particular the observations made by Bell, Gageler and Keane JJ at [2]-[4], that:

i.    the fact of notification [given under s 438(2)(a) to the Tribunal] triggers an obligation of procedural fairness on the part of the Tribunal to disclose the fact of notification to the applicant for review. Breach of that obligation of procedural fairness constitutes jurisdictional error on the part of the Tribunal if, and only if, the breach is material. The breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.

ii.    an incorrect notification results in jurisdictional error if, and only if, the incorrect notification is material, again in the sense that it operates to deprive the applicant of the possibility of a successful outcome.

iii.    Where materiality is put in issue in an application for judicial review of a decision of the Tribunal, it is a question of fact in respect of which the applicant for judicial review bears the onus of proof.

47    As is apparent, although the primary judge did not have the benefit of the High Court’s reasons in SZMTA, in considering whether the alleged breach of procedural fairness constituted jurisdictional error, the primary judge was correct to inquire as to whether the breach operated to deprive the appellants of the possibility of a successful outcome.

48    Neither the appellants nor the Minister sought to challenge the correctness of that principle. However, on the appeal, the appellants contested the primary judge’s application of the principle, and in particular, the primary judge’s conclusion that no inference could or should be drawn that the Tribunal had been influenced by the impugned information to the extent that the appellants were deprived of the possibility of a successful outcome.

49    The primary judge’s deliberative reasons on this issue are brief. His Honour seems to have assumed that the Tribunal had regard to the impugned information but that its decision was not influenced by it. At [40], the primary judge said this (emphasis in original):

The applicants’ only reference to the Tribunal’s alleged consideration of the information in folios 77 and 124/126 was at paragraph 22 of the Tribunal’s reasons. The applicants’ further written submissions in reply filed 29 March 2017 at paragraph 8 stated that it can be inferred that the Tribunal “read, considered and might have been influenced by the information” in those folios and that the inference arose from the wording of paragraph 22 of the Tribunal’s reasons where the Tribunal noted something about one of the documents on the student file. To my mind, no such inference could or should be drawn. The note that the Tribunal referred to related to a loan not to links to gangs, horrific attacks having been witnessed by the first applicant, hiding from police or the cancellation of a student visa as the applicants asserted. To my mind, the applicant elevated to an unrealistic level the inferences that could have been drawn from the certificate and information in the folios mentioned. I do not agree that by failing to disclose the certificate the applicants were denied the possibility of a successful outcome in the case.

50    The matters relied upon by the appellants before the primary judge in support of the inference they sought to have drawn were not as limited as [40] of the primary judge’s reasons suggests. A wider range of circumstances was relied upon by the appellants both before the primary judge and on the appeal.

51    The failure of the Tribunal to disclose to the appellants the existence of the s 438 notification was not the focus of the appellants’ submissions on the appeal. Instead the appellants focussed on the Tribunal’s failure to disclose to the appellants the impugned information. Whether the Tribunal’s possession of the impugned information, in circumstances where the information was not disclosed to the appellants, deprived the appellants of the possibility of a successful outcome, requires a consideration of a wider range of facts and circumstances than those considered by the primary judge.

52    As was stated by Bell, Gageler and Keane JJ in SZMTA at [46], the question of the materiality of the breach of procedural fairness is an ordinary question of fact and may be determined by inferences drawn from evidence adduced on the application. It is necessary therefore to identify the relevant facts and circumstances and the inferences which may be drawn from them. In that respect, the Tribunal was engaged in the administration of Part 7 of the Act. As Bell, Gageler and Keane JJ said in SZMTA at [47], “[t]he drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act”.

53    On the basis that the appellants cannot establish materiality unless they can demonstrate that the impugned information was taken into account by the Tribunal, we turn to consider the various facts and circumstances suggested by the parties to be of relevance to whether or not the impugned information was taken into account by the Tribunal in making its decision on the review.

54    First, the impugned information was contained in a file dealing with the appellant mother’s application for a student visa (“student visa”) held by the Secretary and must have been understood by the Tribunal to have been provided to it pursuant to the obligation on the Secretary in s 418(3) to give to the Registrar of the Tribunal documents “considered by the Secretary to be relevant to the review of the decision”.

55    Second, the notification given by the Secretary to the Tribunal pursuant to s 438(1)(a) stated that the disclosure of the impugned information “would be contrary to public interest [sic] because it contains internal working documents. For this reason this information should not be disclosed to the applicant or the applicant’s representative”.

56    Third, there is nothing to suggest that the validity of the s 438 notification given to the Tribunal was at issue before the Tribunal. As Bell, Gageler and Keane JJ said in SZMTA at [47], “the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that s 438 applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers”. Accordingly, it ought be assumed that the Tribunal proceeded on the basis that the certificate and the notification were valid and that it was constrained to deal with the impugned information in the manner required by s 438(3).

57    Fourth, the Tribunal must have read and given consideration to the appellant mother’s student visa file or at least parts thereof. So much is apparent from the Tribunal’s reasons including at [20], [22] and [56].

58    Fifth, given that s 438(3)(a) provided to the Tribunal a discretion as to whether or not to have regard to the impugned information, the assumption that the Act would be regularly administered suggests that the Tribunal must have read and considered the impugned information at least for the purpose of considering whether to exercise that discretion.

59    Sixth, the reasons of the Tribunal make no reference to any consideration given to or decision made by the Tribunal to exercise its discretion as to whether or not it ought to have regard to the impugned information (s 438(3)(a)) or the discretion as to whether or not the impugned information should be disclosed to the appellants (s 438(3)(b)) .

60    Seventh, although information contained in the appellant mother’s student visa file was put by the Tribunal to the appellant mother for comment or response in a letter provided by the Tribunal pursuant to s 424A of the Act (“s 424A letter”), no comment or response was sought in relation to the impugned information in circumstances where, as the Tribunal stated in its s 424A letter, s 424A required the Tribunal to invite the appellants “to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason (or part of the reason) for affirming the decision under review”.

61    Eighth, the Tribunal’s reasons do not refer to the impugned information despite s 430(1) of the Act providing that the written decision of the Tribunal must, amongst other things: set out the reasons for the decision; set out the findings on any material questions of fact; and refer to the evidence or any other material on which the findings of fact were based.

62    Ninth, the nature and content of the impugned information was, objectively considered, capable of being considered by the Tribunal as relevant to the reliability or truthfulness of the claims made and evidence given by the appellant mother. Prejudicially to the interests of the appellants, the information was capable of supporting the making of adverse credit findings by the Tribunal against the appellant mother. In particular the impugned information included:

i.    a file note containing advice received from the New South Wales Police Liaison Unit which stated:

NSW Police Liaison Unit adv client witnessed horrific attack on a Chinese student but is avoiding Police investigations. There are indications client does not intend to complete studies and may have links to Asian Crime Gangs.

ii.    a file note in the following terms:

Student not enrolled since 21/10/2008

when both COE’s held were canx, one for Unsatisfactory attendance, and one for Non Commencement of Studies.

Client is also suspected of having links to Asian crime gangs. She witnessed a horrific attack on a Chinese student in 2008, but has avoided Police who wanted to question her.

    Please refer to Paul Cowderoy, NSW Student Integrity Unit, should client present at DIAC.

iii.    various references to the non-commencement of studies or unsatisfactory attendance of the appellant mother at courses for which she was enrolled.

63    Tenth, prior to the hearing before the Tribunal, the appellant mother had obtained all of the information on her student visa file other than the documents referred to at (i) and (ii) above through a Freedom of Information request..

64    Eleventh, during the conduct of its review, the Tribunal variously expressed concerns about the appellant mother’s credibility including (as set out in the s 424A letter) a concern that the appellant mother (and her family) may have “a propensity to provide false information to the Australian government in order to obtain a favourable visa outcome”.

65    Twelfth, by its determination, the Tribunal made adverse credit findings against the appellant mother. In particular the Tribunal found (at [80]) it “had significant credibility concerns in relation to the [appellant mother’s] claims relating to her religious beliefs and practices and it is not satisfied that she told the truth in relation to aspects of her evidence”. Those credibility concerns were critical to the rejection of the appellants’ claims of feared persecution based on religious beliefs and practices. Furthermore, the Tribunal found (at [96]) “that the [appellant mother’s] claims regarding the dire financial circumstances of her parents to be lacking credibility”. That finding formed part of the basis for the Tribunal’s rejection of the appellant mother’s claim that she could not pay any fine imposed upon her for the breach of China’s family planning laws. That the appellant mother would not be unable to pay the fines likely to be imposed was a finding critical to the rejection, by the Tribunal, of the claim that the appellant daughter would not suffer harm associated with being an unregistered or “black child”.

66    The curial determination of this ground of appeal depends upon “how the Tribunal in fact acted in relation to the notified document or information”: SZMTA at [50], (Bell, Gageler and Keane JJ). A finding that the Tribunal took into account the impugned information in the sense that it acted on the information or had regard to it by treating it as material to its decision (Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [65] (Kenny, Tracey and Griffiths JJ)) is critical to the appellants’ success on this ground of appeal. If the Tribunal did not have regard to the impugned information it could not be said that “there is a realistic possibility that the Tribunal’s decision could have been different” (SZMTA at [48] (Bell, Gageler and Keane JJ)). The appellants made no submission to the contrary.

67    There are several facts or circumstances that the appellants contended supported an inference that the Tribunal did have regard to the impugned information. Principally, the appellants contended that the impugned information was highly relevant to the Tribunal’s review, and in particular, to the issue of the appellant mother’s credibility and that therefore, in the context of the Tribunal’s obligation to take all relevant material into account, the Tribunal must have had regard to the impugned information.

68    Whilst we largely accept the foundational facts relied upon by the appellants, we do not accept that those facts give rise to the inference contended for.

69    It is true that in the ordinary exercise of the Tribunal’s review function, the Tribunal is likely to take into account information before it which is credible and of relevance to the exercise of the Tribunal’s power. The more relevant the information, the more likely it is that the Tribunal will take it into account and treat is as material to its decision.

70    It may be accepted that the impugned information would have been perceived by the Tribunal as credible. It emanated from official sources: either an educational institution or the New South Wales police. The appellant mother’s credibility was not only put in issue by the Tribunal at the hearing and in its s 424A letter, but was ultimately critical to the result. The impugned information, and in particular, that the appellant mother was avoiding questioning by police in relation to a serious crime and had links to Asian crime gangs, was apt to be regarded by the Tribunal as relevant and of some significance to the appellant mother’s credibility.

71    Furthermore and as the appellants contended, the Tribunal is ordinarily obliged to have regard to information relevant to an issue raised on a review. That general obligation arises from the very nature of the task of review conferred upon the Tribunal as well as the direction given by s 420(2)(b) of the Act requiring the Tribunal to act according to the substantial justice and merits of the case.

72    However, properly construed, s 438(3)(a) must be understood as contemplating an exception to that rule. As Bell, Gageler and Keane JJ observed in SZMTA at [23], implicit in the conferral of the discretion given to the Tribunal under s 438(3)(a) to have regard to notified information “is that the Tribunal has no power to have regard to the information or to any matter contained in the document for the purpose of making a decision on the review unless the discretion is affirmatively exercised”. In the absence of the affirmative exercise of that discretion, the Tribunal is not to have regard to notified information, including notified information which is relevant to an issue or issues arising on the review. As was also stated by Bell, Gageler and Keane JJ in SZMTA at [24] in relation to the discretion given by s 438(3)(b), “the Tribunal has no power under s 427(1)(c) and no obligation under s 424AA, s 424A or s 425 to disclose to the applicant the information or any matter contained in the document unless the discretion is affirmatively exercised”.

73    Given that the prima facie position is that of non-disclosure of notified information to an applicant, there is good reason why the Tribunal is excluded from having regard to the notified information unless its discretion to have regard to that information is affirmatively and reasonably exercised.

74    The basic principle of the natural justice hearing rule is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests which the decision-maker proposes to take into account: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [56] (Hill, Sundberg and Stone JJ). That principle (with some qualification) is reflected in ss 424AA and 424A of the Act which require the Tribunal to give an applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Although (as was further observed in SZMTA at [24] (Bell, Gageler and Keane JJ)), “the discretion under s 438(3)(b) must be exercised within the bounds of reasonableness and the obligations imposed by ss 424AA, 424A and 425, where engaged, must be performed to the maximum extent permitted by the reasonable exercise of that discretion”, it remains possible for the Tribunal to exercise the discretion given to it by s 438(3) in a way which would permit the Tribunal to have regard to notified information adverse to the interests of an applicant without disclosing that information to the applicant. The obvious unfairness for an applicant of that eventuality has, in the circumstances contemplated by s 438, given rise to the requirement that an affirmative decision made within the bounds of reasonableness needs to be made by the Tribunal in order to have regard to notified information.

75    There is therefore a basis for inferring that a Tribunal involved in the regular administration of the Act would, first, appreciate that absent an affirmative exercise of its discretion it cannot have regard to notified information and, second, would not, without good reason, make an affirmative decision to have regard to notified information which it has determined should not be disclosed to the applicant. In that context, it would be wrong to accept a contention like that put by the appellants that it should be inferred from the fact that the impugned information was relevant that the Tribunal had regard to it.

76    In this case, it must be presumed that the Tribunal acted on the basis that the certification and notification made under s 438 was valid. The Tribunal did not exercise its discretion under s 438(3)(b) to disclose any of the impugned information to the appellants. So much is apparent from the fact that none of the impugned information was disclosed. In those circumstances, and particularly given the highly prejudicial nature of the information which emanated from the New South Wales police, there is good reason for thinking that a fair minded Tribunal member in the regular administration of the Act and acting on the basis that s 438 had application would not have affirmatively exercised the discretion to have regard to the impugned information without good reason. If good reason for the exercise of the discretion existed, it is not apparent. Additionally, absent any contrary indication in the Tribunal’s reasons or elsewhere in the evidence that the Tribunal gave active consideration to the affirmative exercise of the s 438(3)(a) discretion, there is further justification for inferring that the Tribunal paid no regard to the impugned information in reaching its decision (see SZMTA at [47] Bell, Gageler and Keane JJ)).

77    The adverse credit findings made against the appellant mother by the Tribunal were supported by a range of considerations expressed in the Tribunal’s reasons. If that had not been so, there may have been a basis for thinking that, despite the requirements of the statutory setting, the Tribunal did have regard to the impugned information. But the fact that that is not so, serves to confirm the inference that the Tribunal did not have regard to the impugned information.

78    Despite the invalidity in the provision of the impugned information to the Tribunal and the non-disclosure of it to the appellants, it necessarily follows from the appellants’ failure to establish that the Tribunal had regard to that information that the appellants have failed to demonstrate materiality and that, accordingly, no jurisdictional error is established.

79    Although the primary judge came to that conclusion differently, his Honour’s conclusion is not affected by appealable error. Ground 2 must therefore be dismissed.

GROUND 3

80    By this ground, the appellants contended that the Tribunal’s decision was affected by jurisdictional error in the form of apprehended bias. The appellants principally relied on the judgment of Griffiths J (with whom Dowsett and Charlesworth JJ concurred) in Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 as setting out the relevant legal principles and as illustrating facts, said to be not relevantly distinguishable from those here to be inferred, which demonstrated a reasonable apprehension of bias.

81    That the relevant and applicable principles are correctly set out in AMA16 was not in contest. That the facts of AMA16 are not relevantly distinguishable was in contest.

82    The relevant principles were outlined in the judgment of Griffiths J in AMA16 by reference to the summary contained in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] and [36] (Allsop CJ, Kenny and Griffiths JJ), and are as follows:

35    Although the application of the apprehended bias test can give rise to difficulties, the parties were in substantial agreement as to the primary elements of the test. That is hardly surprising because the test is relatively well settled. It is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits (see, for example, R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (Ebner); Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 and British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283 (British American Tobacco)).

36    Other relevant principles are:

          (a)    at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)     there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)     there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ);

(b)    an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be ‘distinctly made and clearly proved’ (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and

(c)    as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J).

83     As Griffiths J said at [65] of AMA16:

In applying these general principles and considerations, it is also critical to acknowledge the importance of the relevant legal, statutory and factual framework within which a claim of apprehended bias is made, as was emphasised in Isbester v Knox City Council (2015) 255 CLR 135 (Isbester) at [20] per Kiefel, Bell, Keane and Nettle JJ. In Isbester, the plurality said at [23]:

“How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.”

(Footnotes omitted.)

84    The appellants’ Ground 3 bears a relationship to Ground 2. The appellants contended that for the reasons they relied upon in respect of Ground 2, relating to the Tribunal’s erroneous treatment of the s 438 notification, it should be inferred that the Tribunal read, considered, and might have been influenced by the prejudicial material forming part of the impugned information. They contended that a reasonable apprehension of bias was thereby demonstrated.

85    In AMA16, the Immigration Assessment Authority (“IAA”) exercising powers under the “fast track review process” in Part 7AA of the Act, affirmed a decision to refuse to grant a temporary protection visa. For the purposes of the review, the Secretary had sent to the IAA (as part of material in the possession of the Secretary considered by the Secretary to be relevant to the review), a Departmental email (“the impugned email”) which stated that the visa applicant had been charged with indecently assaulting a female person while being aware that the person was not consenting and that the charge of indecent assault was due to be heard in court. The leading judgment in AMA16 was delivered by Griffiths J with whom Dowsett and Charlesworth JJ concurred. At [75], Griffiths J concluded that “[h]aving regard to the highly prejudicial nature of the communications, the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the IAA may have been affected by [the impugned email] albeit subconsciously”. At [78] Griffiths J observed that there was more to give rise to apprehended bias in the facts of that case than merely the possession of prejudicial material by the IAA. The additional feature regarded as of importance was that the IAA must have appreciated that the Secretary must have considered the impugned email to be relevant to the review and provided it on that basis. That occurred in circumstances where, under s 473DB of the Act, the IAA had a statutory obligation to consider the “review material”. Whilst it was open to the IAA to take a different view as to the relevance of the material than that taken by the Secretary, the IAA’s statement of reasons was entirely silent on the matter.

86    Plainly, the facts and the statutory setting considered in AMA16 gave rise to an inference that would have been appreciated by the reasonable observer that the impugned email was regarded by the IAA as relevant and that the IAA regarded itself as statutorily obliged to consider that material as part of its review. Although the statutory setting included a provision very similar to s 438 of the Act (s 473GB), that provision had no application because the impugned email was not the subject of certification or notification under s 473GB. In that case, it was not necessary for the IAA to have affirmatively exercised a discretion to have regard to the impugned email in order to enliven its power to do so.

87    In rejecting Ground 2, we have already dealt with why, in our view, it ought to be inferred that whilst the Tribunal read the impugned information, it likely came to the view that it had no power to have regard to the impugned information unless it affirmatively exercised its s 438(3)(a) discretion, and further, that the affirmative exercise of that discretion was not warranted.

88    The same inferences, made for the same reasons, ought to be attributed to the fair-minded and appropriately informed reasonable observer. Once that is done, the facts provide a clear basis for distinguishing AMA16. If, as to be inferred here, the Tribunal came to the view that there was no reasonable basis or good reason for having regard to the impugned information despite its obvious relevance and the relevance attributed to it by the Secretary, there is no basis for thinking that the Tribunal might have been influenced by the information, even subconsciously.

89    The conclusion that the reasonable observer might reasonably apprehend that the Tribunal might not have brought a fair, impartial and independent mind to the determination of the review on its merits is not ‘distinctly made and clearly proved’ and must be rejected. For those reasons the appellants’ Ground 3 must be rejected.

conclusion

90    The appellants have failed on Grounds 2 and 3 of their appeal. They have, however, succeeded on Ground 1. Accordingly, the appeal should be allowed in relation to Ground 1. The orders of the Federal Circuit Court made on 8 August 2017 should be set aside and in lieu thereof:

i.    a writ of certiorari should issue directed to the Tribunal quashing its decision of 11 November 2014, and;

ii.    a writ of mandamus should issue, remitting the matter to the Tribunal and requiring the Tribunal (differently constituted) to determine the matter according to law.

91    A further order ought be made that the Minister pay the appellants’ costs of the appeal and of the Federal Circuit Court proceeding below.

Associate:

Dated:    29 April 2019