FEDERAL COURT OF AUSTRALIA

SZRLO v Minister for Immigration and Citizenship [2013] FCA 825

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

OVERVIEW

1    The appellant, the child SZRLO who is represented in this proceeding by her mother SZOXK, was born in Australia of parents who are citizens of the People’s Republic of China (China) and in contravention of the family planning policies of China. The appellant applied for a protection visa under the Migration Act 1958 (Cth) (Act) on 11 August 2011.

2    On 21 November 2011, a delegate of the first respondent (Minister) refused to grant the appellant a protection visa. This decision was affirmed by the second respondent (Tribunal) on 20 April 2012.

3    By a notice of appeal filed on 13 March 2013, the appellant appeals from the whole of the judgment of the Federal Magistrates Court (now the Federal Circuit Court) given on 22 February 2013 by which Raphael FM (as his Honour then was) dismissed an application for judicial review of the Tribunal’s decision. The appellant alleges errors of law on the part of the Federal Magistrates Court in:

    finding that the Tribunal had complied with s 424(1) of the Act;

    finding that the Tribunal had not failed to consider a component integer of the claims that the Tribunal was required to consider on the material before it; and/or

    finding that the Tribunal had not failed to take into account a relevant consideration.

4    The Court does not consider that appellable error in the decision of the Federal Magistrates Court in relation to these issues is demonstrated and so dismisses the appeal with costs.

application for a protection visa

5    The appellant was born on 9 May 2011 in Australia. Because her parents are both Chinese nationals living in Australia temporarily, the appellant is nonetheless a citizen of China.

6    On 11 August 2011, the appellant (by her mother) made an application for a protection (Class XA) visa to the Department of Immigration and Citizenship in which she claimed to have a well-founded fear of persecution in China based upon her mother’s religious beliefs and the fact that she (the appellant) was a member of a particular social group comprised of children born out of wedlock.

7    The appellant was invited to an interview by a delegate of the Minister on 7 November 2011, which she attended in the company of her mother and father.

8    On 21 November 2011, the Minister’s delegate refused the appellant’s application on the basis that:

    the appellant’s mother did not have a religious profile in China that would be imputed to her if she were to return to China;

    any official discrimination that the appellant might be subject to because of her status as an unregistered child was not discrimination to the extent of persecution under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees;

    any official discrimination that the appellant might be subject to could be cured by the payment of a “social compensation fee” to the Chinese authorities to obtain registration; and

    even if the fine were not paid and the appellant remained unregistered, she would not suffer any significant practical discrimination.

merits review by the refugee review tribunal

9    On 30 November 2011, the Tribunal received an application for review of the decision of the Minister’s delegate. The Tribunal invited the appellant to a hearing, which took place on 11 and 12 April 2012. The appellant attended the hearing in the company of her mother who gave evidence on her behalf. The appellant’s mother also provided some additional documentation to the Tribunal after the hearing.

10    On 20 April 2012, the Tribunal affirmed the decision of the Minister’s delegate.

11    In its decision record, the Tribunal set forth a detailed summary of the claims made by the appellant in her protection visa application and to the Minister’s delegate, as well as the evidence given by her mother at the Tribunal hearing.

12    The Tribunal also set forth a detailed summary of independent country information in relation to the two elements of the appellant’s claim (namely, the claims based upon religion and membership of a particular social group). In particular, it referred to independent country information that indicated that Chinese law provided that children born out of wedlock were not to be discriminated against. However, it noted that unregistered children (commonly known as “black children”), whether or not born out of wedlock, were not entitled to public education in China. Relevantly for present purposes, the Tribunal also referred to a 2005 academic paper on unregistered children in China by Yingying Zhou, a member of the Department of Sociology at the University of Washington in the United States of America, titled “Uncovering Children in Marginalization: Explaining Unregistered Children in China” (Zhou Paper).

13    The Zhou Paper noted that previous research attributes “un-registration” mainly to out of plan births and seemed to place the responsibility for this on the parents. However, the Zhou Paper then noted, at p 6:

Apart from individual intentional concealment of out-of-plan births, it was reported in the articles that some local governments, in order to ‘achieve’ their family planning objectives, refuse to register children born in excess of birth planning regulations. Even though such measures were criticized by the Central Disciplinary Commission of the Party, refusing household registration for unauthorized children continued to be practiced in many regions as unwritten laws.

According to these reports in national media, three situations mainly shape un-registration … Thirdly, given the autonomy of local governments in terms of family planning implementation, many officials reject applications of registration for out-of-plan births, either as a punishment or as a means of improving their record of family planning work.

These reports, however, base their findings on incomplete estimation, qualitative data, or anecdotal reports, while lack systematic data. The focus of these reports is on out-of-plan births and importance of family planning work, and other factors of un-registration tend to be neglected.

14    These passages were not quoted, cited or referred to by the Tribunal in its decision record, except to the extent that at [80] the Tribunal noted that: “local governments may refuse to register unsanctioned births in order to meet family planning objectives”. The Zhou Paper was then referenced in a footnote to this sentence. The Zhou Paper was also referenced elsewhere in [80] and at [81].

15    The Tribunal found that the appellant’s mother was not “a person of credibility” and that she had not been truthful in her evidence. The Tribunal was of the view that much of her evidence had been fabricated to further the appellant’s application.

16    With respect to the appellant’s claim based upon religion, the Tribunal found that:

(1)    There is not a real chance that the appellant’s parents will be detained by reason of their religion. As such, there is not a real chance that the appellant will suffer any harm of persecution, either because of her parents’ religions beliefs or activities or because the appellant herself will be brought up as a Christian.

(2)    There is not a real chance that the appellant will be persecuted by reason of being a family member of an underground Christian in China.

(3)    There is not a real prospect of authorities taking an interest in the appellant as the child of a practitioner of Christianity such that any harm would be directed to her.

17    With respect to the appellant’s claim based upon membership of a particular social group, the Tribunal found that:

(1)    The appellant’s birth was in breach of Chinese family planning legislation and her parents may be required to pay a social compensation fee before she can be registered. The independent country information indicates that the social compensation fee would, at its highest, be AUD 3,300 and could be paid in instalments over three years.

(2)    Unless a social compensation fee is paid, the appellant may not be registered and may not have access to the same level of rights, privileges and services as a registered child.

(3)    The appellant’s parents have the capacity to pay the social compensation fee and the fee will be paid upon the family’s return to China. Once the fee is paid, the appellant will be able to obtain registration and lead a normal life. That is, the appellant will not experience any form of harm as a result of being born out of wedlock and in breach of the family planning legislation.

18    As a result of its findings, the Tribunal affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa.

judicial review in the federal magistrates court

19    The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. Essentially, the appellant alleged that the Tribunal had committed jurisdictional error by not having regard in its decision to information in the Zhou Paper that was referred to in the Tribunal’s decision record to the effect that local governments may refuse to register unsanctioned births in order to meet family planning objectives. Thus, the appellant alleged the Tribunal committed jurisdictional error by:

    breaching s 424(1) of the Act; and/or

    failing to take into account a relevant consideration.

20    On 22 February 2013, the appellant’s application for judicial review was dismissed: SZRLO v Minister for Immigration & Anor [2013] FMCA 107.

21    Section 424(1) of the Act states:

(1)    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

22    Raphael FM (as his Honour then was) drew an inference from the Tribunal’s decision record that the Tribunal had read the Zhou Paper: SZRLO v Minister for Immigration & Anor [2013] FMCA 107 at [20]. His Honour held that the Tribunal was entitled to, and by inference did, consider the information in the Zhou Paper regarding the possibility of refusal of registration of unsanctioned births of no value and thus was not required to make further comment on it. The effect of this conclusion was that the first ground of review failed because Raphael FM was of the opinion that the Tribunal did “have regard to” the information in making its decision.

23    Based on these findings, his Honour was of the view that the second ground of review must also fail: SZRLO v Minister for Immigration & Anor [2013] FMCA 107 at [21]. However, additionally, Raphael FM was of the view that the Zhou Paper was a “piece of evidence”, not an “integer of a claim”, and, as such, failure to consider it would not amount to a jurisdictional error: SZRLO v Minister for Immigration & Anor [2013] FMCA 107 at [22]. In support of this latter proposition, his Honour cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 39-40 (Mason J) and Minister for Immigration and Citizenship v MZYHS [2011] FCA 53; (2011) 119 ALD 534 (MZYHS) at [24].

appeal in this court

24    The appellant now appeals from the whole of the judgment of the Federal Magistrates Court, advancing the following grounds of appeal:

(1)    The Federal Magistrates Court erred in finding that the Tribunal had complied with s 424(1) of the Act.

(2)    The Federal Magistrates Court erred in finding that the Tribunal had not failed to consider a component integer of the claims that the Tribunal was required to consider on the material before it.

(3)    The Federal Magistrates Court erred in finding that the Tribunal had not failed to take into account a relevant consideration.

appellant’s SUBMISSIONS

25    Ground one: failure to comply with s 424(1) of the Act: The appellant notes that the most recent consideration by the Full Court of the Federal Court of Australia of what is required by the statutory obligation to “have regard to” a matter was in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 (Khadgi). In Khadgi, the Full Court, at [57], observed that a statutory obligation to have regard to a matter makes consideration of the matter “a jurisdictional prerequisite” to, in this case, the making of the decision. In order to comply with the jurisdictional prerequisite, the decision-maker must engage in an “active intellectual process” in which the relevant matter – in this case, the information in the Zhou Paper obtained by the Tribunal – receives the Tribunal’s “genuine” consideration: Khadgi at [57] and the authorities there cited.

26    The appellant then notes the comments of the Full Court in Khadgi at [59]:

[A] decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant. On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error. A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case. A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.

27    The appellant contends that in its findings on the issue of the appellant’s status as having been born out of wedlock, the Tribunal focused only on the issue of whether the parents would have the child registered and made a specific finding that the fee would be paid (albeit perhaps by instalments) if the family were to return to China. Having made that finding, the Tribunal found that once the fee had been paid and the appellant had been registered, she would not experience any form of harm from having been born out of wedlock and in breach of the family planning legislation.

28    The appellant contends that, although the Tribunal recounted in its reasons the information in the Zhou Paper that suggested that “local governments may refuse to register unsanctioned births in order to meet family planning objectives”, the Tribunal did not consider this information when it came to make its findings, and did not make any finding about the issue of local governments refusing to register unsanctioned births. The appellant submits that the determination of the Federal Magistrates Court to the contrary is wrong.

29    The appellant submits that while questions may arise as to the weight to be given to the information referred to by the Tribunal, as the information was obtained by the Tribunal itself it was “made compulsorily relevant” by s 424(1) of the Act: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [78] (Allsop J). Thus, the Tribunal was required to have regard to this information in making its decision. Specifically, the appellant submits, that would require it to express a view on the proposition that emerges from the Zhou Paper: that irrespective of payment of a social compensation fee, there was a possibility that the appellant would not be registered.

30    The appellant contends that either the Tribunal did not consider that the possibility raised in the Zhou Paper would prevent the appellant from being registered, or the Tribunal simply overlooked the possibility. But without a clear finding on the matter in the Tribunal’s decision record, the appellant submits that the Tribunal failed to engage in an active intellectual process in relation to that matter, and thus failed to have regard to a jurisdictional prerequisite, thereby committing jurisdictional error.

31    The appellant also contends that, in his reasons for decision at [20], Raphael FM appears to have considered the information in the Zhou Paper for himself in making the finding that the “Tribunal was entitled to, and by inference did, consider [the Zhou Paper] of no value and thus was not required to make further comment upon it”. The appellant submits that in so finding, his Honour impermissibly engaged in his own “active intellectual exercise” and drew his own factual inference from his own reading of the material, which is not the same as scrutinising whether it is apparent from the decision record that the Tribunal had regard to the information, as it was required to do under s 424(1).

32    Ground two: failure to have regard to a component integer of the appellant’s claim: The appellant submits that a failure to have regard to a “clearly articulated argument” relying on established facts is a denial of natural justice: Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 73 ALD 321 (Dranichnikov) at [24]-[34] (Gummow and Callinan JJ); Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 (Plaintiff M61/2010E) at [90].

33    Further, the appellant contends that even where a claim falls short of being expressly raised, a decision-maker must consider every claim that clearly arises on the materials before it: WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 (WZAQU) at [10] and the authorities there cited.

34    Thus, the appellant submits, even though the information about the attitude of some local governments to registering unsanctioned births was not a claim made expressly by the appellant, in circumstances where the information about the potential impediment to registration was before the Tribunal as a result of its own investigations under s 424(1), it arose squarely on the materials before it and thus was required to be responded to by the Tribunal.

35    The appellant contends that the Tribunal characterised the appellant’s claim as a claim that she would be discriminated against as a black child because she would not be registered as her family could not afford to pay the social compensation fee. Raphael FM found, at [22], that the claim that arose out of the Zhou Paper concerning a potential additional impediment to registration was a piece of evidence that went to a relevant “integer” of the claim, which he characterised as being that the appellant had a well-founded fear of persecution on account of being a child born out of wedlock. Moreover, the appellant contends, his Honour held that that claim had been considered, even though the Tribunal’s only relevant finding was as to whether the family would have the appellant registered. This is despite the fact that Raphael FM accepted, at [20], that “the failure to make reference in the findings and reasons to the information which suggests that registration may not only be in the hands of a parent has an obvious importance”.

36    The appellant accepts that, had the Tribunal in this case indicated in its decision record that it had considered the matter raised by the Zhou Paper but decided that it was not determinative, there could be no complaint about a failure to consider the appellant’s claim. The appellant submits, however, that in the absence of any finding on the matter Raphael FM erred in not finding that the Tribunal had fallen into jurisdictional error by failing to respond to an integer of the appellant’s claim.

37    Ground three: failure to take into account a relevant consideration: The appellant submits that the statutory obligation under s 424(1) renders the Tribunal “bound” to take into account information that has been obtained by the use of its power under that section. Further, the appellant submits that pursuant to s 414 of the Act, the appellant’s claims and their component integers were considerations made mandatorily relevant by the Act for consideration: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (Htun) at [42] (Allsop J). Thus, the appellant submits that as the Tribunal did not have regard to the information in the Zhou Paper, this constituted a failure to take into account a relevant consideration.

minister’s SUBMISSIONS

38    Ground one: failure to comply with s 424(1) of the Act: First, the Minister submits that the Act does not require the Tribunal to make positive findings with respect to each and every piece of independent country information before it in order for it to have discharged its statutory duty to “have regard to” that information. The Minister contends that the appellant’s preferred construction of s 424(1) of the Act would have required the Tribunal to make positive findings about each of the facts stated in each of those sources, or risk being found to have fallen into jurisdictional error by failing have regard to those facts. Such a construction of s 424(1), the Minister submits, is entirely unworkable.

39    Secondly, the Minister contends that by focusing upon one small part of the Zhou Paper, the appellant has failed to appreciate that, when read as a whole, the Paper does not support the proposition contended for. In particular, the Minister submits, the Zhou Paper itself dismissed previous articles which referred to the possibility that local governments may refuse to register unsanctioned births as anecdotal and unscientific, and drew conclusions that were inconsistent with them. As a result, there is in fact no relevant information that the Tribunal has failed to have regard to.

40    Thirdly, the Minister submits that even if the information in the Zhou Paper can reasonably be characterised in the manner asserted by the appellant, a fair reading of the Tribunal’s decision record discloses that the Tribunal did “have regard to” it. The Minister notes that questions of weight and whether or not to accept or reject particular evidence are issues of merit, which are the sole province of the Tribunal: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].

41    Ground two: failure to have regard to a component integer of the appellant’s claim: The Minister contends that it is only where a claim is clearly articulated or “clearly arises on the materials” before the Tribunal that it is elevated into an “integer” that must be considered. This, the Minister notes, has been explained as a requirement that the particular claim arise “squarely” on the materials before the Tribunal, or, in other words: “The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [60].

42    The Minister submits that the possibility that the local government might block the registration of the appellant formed no part of the appellant’s claims before the Tribunal, nor did it clearly arise on the materials before the Tribunal.

43    Ground three: failure to take into account a relevant consideration: First, the Minister submits that this ground involves a misunderstanding of the requirement to take into account a relevant consideration. The Minister submits that, in the context of the Act, the only relevant considerations are the appellant’s claim to be a refugee and the integers that make up that claim: MZYHS at [24], and the fact that s 424(1) of the Act requires the Tribunal to “have regard to” information it obtains does not elevate such information into a statutorily-mandated relevant consideration in the sense discussed in Peko-Wallsend. Further, the Minister submits that “a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact”: MZYHS at [24].

44    Secondly, the Minister submits that even if the particular aspect of the Zhou Paper identified by the appellant was a relevant consideration, the Tribunal did take it into account. The Minister contends that an inference that the Tribunal has failed to consider an issue or particular evidence is “not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (WAEE) at [47]. The Minister submits that a fair reading of the Tribunal’s decision record does not disclose any such failure. The Tribunal specifically referred to the possibility that the local government might refuse registration. However, it found that the appellant could (and would) be registered and that registration would cure any discrimination she might face. The Minster contends that in concluding the way it did, the Tribunal dismissed the possibility of a risk of non-registration.

consideration

45    Ground one: failure to comply with s 424(1) of the Act: Without making a finding on the issue, it may be assumed, for the purpose of taking the appellant’s case at its highest, that the Tribunal was required to “have regard to” the information in the Zhou Paper. If this assumption is made, the issue between the parties is, then, did the Tribunal “have regard to” this information?

46    In Khadgi, the issue for the Full Court was whether the Tribunal had complied with its obligation to “have regard to” prescribed circumstances in making its decision under s 109(1)(c) of the Act. Section 109(1) provides:

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)    considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)    having regard to any prescribed circumstances;

may cancel the visa.

47    As Sackville J observed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [54], the expression “have regard to” is capable of different meanings depending on the context. His Honour continued:

… a statutory obligation to have regard to specified matters when making an administrative decision may require the decision-maker to take the matters into account and ‘give weight to them as a fundamental element in making his [or her] determination’: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J. Indeed, this is the meaning that was given to the predecessor of s 501(6)(c) of the Migration Act (relating to the character test): Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194. But the phrase ‘have regard to’ can simply mean to give consideration to something (Shorter Oxford English Dictionary). In this sense a direction to a decision-maker to have regard to certain factors may require him or her merely to consider them, rather than treat them as fundamental elements in the decision-making process.

48    In Khadgi, the Full Court held, at [62], that the prescribed circumstances to which the Minister must have regard pursuant to s 109(1)(c) are of the latter kind identified by Sackville J. As their Honours noted:

There are 10 different criteria that are prescribed by reg 2.41 for the purposes of s 109(1)(c) of the Act. It is hard to see why a decision-maker should be required to treat each and every one of them as fundamental for the purposes of s 109. Although the Minister must have regard to each and every one of the prescribed circumstances, not all of them will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act.

49    I respectfully accept that these principles are applicable to the phrase “have regard to” in s 424(1) of the Act. In order to comply with s 424(1), the Tribunal must engage in “an active intellectual process” in which information obtained pursuant to s 424(1) receives the Tribunal’s “genuine” consideration: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [46] (Hill J), [212] (Madgwick J); Khadgi at [57] and the authorities there cited. However, in scrutinising the Tribunal’s decision record, it is, of course, important to remember that the Tribunal’s reasons are not to be scrutinised “with an eye keenly attuned to error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 372 (Brennan CJ, Toohey, McHugh and Gummow JJ); WAEE at [46].

50    In my view, the Tribunal did engage in an “active intellectual process” in relation to the information in the Zhou Paper. When one reads [80] and [81] of the Tribunal’s decision record (under the sub-heading “Black Children”), it may reasonably be inferred that the Tribunal did consider various matters raised in the Zhou Paper, as well as matters raised in 2004 and 2007 Department of Foreign Affairs and Trade (DFAT) reports. Indeed, from a reading of these paragraphs it may be inferred that the Tribunal did not place any particular emphasis on the Zhou Paper or the 2004 DFAT report, but rather considered that both should be seen to be updated by (if not made subservient to) the 2007 DFAT report.

51    Furthermore, while it is true that the information in question was raised in the “Claims and Evidence” section of the Tribunal’s decision record and then not explicitly referred to again in the “Findings and Reasons” section (as, in the appellant’s submission, it should have been), this overlooks the fact that, in the “Findings and Reasons” section, the Tribunal found, at [110], that “once the [social compensation] fee is paid, the [appellant] will be registered”. Similarly, at [112], the Tribunal found that “the social compensation fee will be paid, so that the [appellant] will be able to obtain registration and lead a normal life”. In my view, it may reasonably be inferred that these findings of generality subsume a number of issues, including the issue of whether the local government may refuse to register the appellant even if the social compensation fee is paid, as well as the issue of whether the appellant’s parents could and would pay the social compensation fee (an issue to which the Tribunal referred to at length): compare SZRBX v Minister for Immigration and Anor [2012] FMCA 1197 at [51]. That is, after considering all the relevant information, the Tribunal made a positive finding about registration of the appellant.

52    As counsel for the appellant conceded at the hearing of the appeal, there is no authority for the proposition that to “have regard to” something means that there must be an express finding: compare Khadgi at [59]. Rather, all that is required is that there must be some way in which it can be discerned from the decision record that the Tribunal engaged in “an active intellectual process” in relation to information obtained pursuant to 424(1), so that the information can be said to have received the Tribunal’s “genuine” consideration. In my view, from a fair reading of the Tribunal’s decision record it may reasonably be inferred that the Tribunal did genuinely consider the information in the Zhou Paper, but then dismissed the possibility that the local government may refuse to register the appellant even if the social compensation fee is paid.

53    Consequently, I would dismiss ground one of the appeal.

54    Ground two: failure to have regard to a component integer of the appellant’s claim: It is well established that a failure on the part of a decision-maker to deal with a clearly articulated argument relying upon established facts constitutes a breach of procedural fairness: Dranichnikov at [24] (Gummow and Callinan JJ); Plaintiff M61/2010E at [90]. Furthermore, even where a “claim” falls short of being expressly raised, a decision-maker must consider every claim that clearly arises on the materials before it: NABE at [58]-[61].

55    However, in my view, the present case is not a case when it can be said that a key “issue” or “component” of the appellant’s claim was not dealt with by the Tribunal.

56    First, the issue was not expressly raised by the appellant. Furthermore, it may, in circumstances where the issue arose as a result of a single sentence in a 36 page report, be doubted that it can be said to “clearly arise” on the materials before the Tribunal. However, without making a finding on this point, it may be assumed, for the purpose of taking the appellant’s case at its highest, that this component of the appellant’s claim did arise.

57    The more fundamental problem for the appellant is, in my view, that the issue in question was reasonably considered and dealt with by the Tribunal. A conclusion that a decision-maker has failed to consider a claim or part of a claim is a conclusion to be reached by reference to the reasons for decision. However, some reservation should be exercised before such a conclusion is reached where the reasons that have been provided are “otherwise comprehensive” and the issue has at least been identified at some point: WAEE at [47]. Further, as the Full Court in WAEE commented, at [47]:

It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

58    As mentioned, in my view the Tribunal’s finding on the possibility that the local government may refuse to register the appellant even if the social compensation fee is paid may reasonably be inferred to be subsumed in the findings of greater generality in [110] and [112] of the Tribunal’s decision record.

59    Consequently, I would dismiss ground two of the appeal.

60    Ground three: failure to take into account a relevant consideration: Ground three may be dealt with briefly. There is a distinction between a failure to consider an “integer” of a claim to be a refugee (or a contention that, if accepted, might establish a well-founded fear of persecution) and a failure to take into account evidence that, if accepted, might have led to a different finding of fact: MZYHS at [24]. That is, a failure to refer to, or adequately to consider, evidence, whether or not it might be thought probative, does not give rise to jurisdictional error, even though it may have led to an erroneous finding of fact. Accordingly, it may be doubted whether the information in the Zhou Paper was a consideration made mandatorily relevant by the Act for consideration in the sense discussed in Peko-Wallsend: Htun at [42] (Allsop J).

61    However, regardless, as counsel for the appellant conceded at the hearing of the appeal, the outcome of this ground is linked to the outcome of the first (and indeed the second) ground of appeal. As mentioned, in my view it may reasonably be inferred that the Tribunal did “have regard to” the information in the Zhou Paper or, using the phraseology of the ground of judicial review, there was not a failure to take into account this information.

62    Consequently, I would dismiss ground three of the appeal.

conclusion and orders

63    For the reasons given, the appeal should be dismissed with costs.

Associate:

Dated:    15 August 2013