FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377

THE COURT ORDERS THAT:

1.    The name of the appellant be amended to Minister for Immigration and Border Protection.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court of Australia made on 31 May 2013 be set aside and, in lieu thereof, the application to that court be dismissed.

4.    The first respondent pay the appellant’s costs of the appeal and the application in the court below.

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

REASONS FOR JUDGMENT

1    The question on this appeal is whether the primary judge erred in holding that the Refugee Review Tribunal (“tribunal”) had fallen into jurisdictional error by failing to make an obvious inquiry about a critical fact. The allegedly critical fact was the pregnancy of the primary visa applicant, which she had disclosed in correspondence with the tribunal after the hearing but to which, in the absence of corroboration, the tribunal afforded no weight. A subsidiary question, raised by a notice of contention, is whether the tribunal committed jurisdictional error by failing to invite the visa applicant to a second hearing to give evidence and present arguments relating to her alleged pregnancy and fears resulting from it. The answer to the first question is “yes” and to the second “no”.

Background

2    The first respondent (SZRTF) is a national of the People’s Republic of China. She was born in Fujian province and appears to have lived there until coming to Australia in March 2008. SZRTF arrived on a subclass 571 student visa and thereafter was granted a succession of educational visas. On 18 October 2011 she applied to the Minister for Immigration and Citizenship (now the Minister for Immigration and Border Protection) (“the Minister”) for a protection visa. At the time she lodged her application SZRTF was pregnant. The second respondent, SZRTG, is her infant daughter who was born on 8 November 2011. An application was made on her behalf as a member of the same family unit as SZRTF. The issues in the appeal relate to a later pregnancy.

3    A visa may only be granted if, amongst other things, the Minister (or his delegate — see Migration Act 1958 (Cth), s 496) is satisfied that the criteria for the grant of the visa are made out (s 65). The main criteria for the grant of a protection visa are to be found in s 36 of the Act. First, the Minister has to be satisfied that Australia has protection obligations towards the visa applicant. Those obligations arise under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“Refugees Convention”). Australia also has international non-refoulement (non-return) obligations. Australia’s non-refoulement obligations are derived from international human rights conventions to which Australia became a party in the 1980s and 1990s. These are the International Covenant on Civil and Political Rights done at New York on 16 December 1966 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984. The protection obligations owed under the Refugees Convention are caught by s 36(2)(a) and the non-refoulement obligations by s 36(2)(aa). Protection from return to the type of harm that would engage Australia’s international non-refoulement obligations is known as “complementary protection” because the protection complements that which is afforded by the Refugees Convention.

4    The requirements of s 36(2)(a) are only met if the Minister is satisfied that the visa applicant is a refugee as defined by art 1A(2) of the Refugees Convention. Relevantly, that means that he had to be satisfied that SZRFT had a well-founded fear of being persecuted because of her religion and/or because of her membership of a particular social group and was unable or, owing to such fear, unwilling to avail herself of Chinese protection. Section 91R of the Migration Act qualifies some aspects of art 1A(2) for the purposes of the Act and Regulations to a particular person. Section 91R stipulates that the reason (or reasons) for the fear of persecution must be the essential and significant reason(s); that the persecution involves serious harm to the person (examples of which appear in sub-s(2)); and that the persecution also involves systematic and discriminatory conduct. “Serious harm” relevantly includes “significant physical ill-treatment of the person” and “significant economic hardship that threatens the person’s capacity to subsist”.

5    The requirements of s 36(2)(aa) will only be met if the Minister is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she would suffer significant harm (exhaustively defined in s 36(2A)). Even so, “there is taken not to be a real risk of significant harm” if, amongst other things, the real risk is faced by the population of the country generally and not by the non-citizen personally (s 36(2B)(c)).

6    In the statement she filed in support of her application, SZRTF claimed that, upon being “touched by the Holy Spirit” since arriving in Australia, she “decided to believe in God”. She claimed to have been received into the Morman church. On a visit to China in December 2010 she said she was arrested and detained after attending an illegal church gathering and not released until her family paid a fine. She also claimed to have passed on to her church friends in China information she had acquired from the internet about protests in Fujian and that that conduct had resulted in harassment of her family. She said that her parents had urged her to stop what she was doing and not return to China. She said that her mission, however, was to spread the gospel. The statement also recorded the fact of her pregnancy and her confinement date and her estrangement from the child’s father to whom she was not married. (They later reconciled and he gave evidence in the tribunal hearing). She said her family lacked the financial ability to support her studies, especially since her father was involved in a car accident. She professed to fear religious persecution and social discrimination, along with family disapproval, if she were to return to China. At the interview with the delegate SZRTF said that her daughter had not been registered with the authorities and that if she were to return to China she would have no home, no-one would help her and her daughter and she would not have enough money to live on. The application was supplemented by a letter from the Mormon church, her baptism certificate and her daughter’s blessing and birth certificates.

7    The application was decided by a delegate of the Minister, who, on 13 March 2012, following an interview with SZRTF, dismissed it. An application for review of the decision was filed in the tribunal. After hearing from SZRTF, the tribunal affirmed the decision under review. An application was then filed in the Federal Magistrates Court (now the Federal Circuit Court) for an order that the Minister and the tribunal show cause why a remedy should not be granted under s 476 of the Migration Act, although the final orders were not identified. That application prevailed on one of seven grounds:

The Tribunal committed a jurisdictional error in failing to seek evidence of the applicant’s pregnancy from her.

8    The pregnancy came to light in the following circumstances. After the tribunal hearing the tribunal sent a letter to the respondents. The letter, dated 12 July 2012, contained an invitation to comment on, or respond to, some inconsistencies in SZRTF’s account. The information (which related to SZRTF’s relationship with her parents and the prospect of financial support from them) was said to affect her credibility and, subject to her comments or response, to be the reason, or part of the reason, for affirming the decision under review.

9    SZRTF submitted a detailed response. The response is undated but was translated into English on 1 August 2012 and sent to the tribunal on 3 August 2012. Towards the end of the document SZRTF asserted that she had discovered the previous day that she was “pregnant again”. She wrote:

Yesterday I was confirmed that I was pregnant again and this was a surprise post the RRT hearing. Therefore, my mind became even more unsettling and anxious. On the 14th of June, I saw a piece of news from internet, which put me in horror: A 7-month pregnant woman, Jianmei FENG, in Shaanxi Province who couldn’t afford to pay the penalty of 40,000 Yuan and was hijacked violently on the way by the local government birth control officers to get abortion in the hospital. They forced her putting finger prints on the consent form. The baby was dead in her belly. Such a horrifying event would happen in a society of which I lived in, how could I not feel frightened or fearful? Isn’t this a solid evidence of the Chinese government prosecuting women and children? (Refer to attached news report.)

10    Four days later the tribunal published its decision.

The tribunal decision

11    Much of the tribunal’s decision relates to the claim of religious persecution, which is irrelevant for present purposes. It is sufficient to observe that the tribunal rejected SZRTF’s claims about her activities in relation to the local church because they were riddled with inconsistencies and because aspects of her account were implausible and certain details vague. Despite expressing some concerns about the genuineness of her conversion to the Mormon faith, the tribunal accepted that SZRTF had become a Mormon and that she had converted for genuine reasons. Nevertheless, having regard to the teachings of the Mormon Church and its direction to members in China not to proselytise or discuss religion outside the home, it concluded that she would not face persecution in China because of her religion.

12    The tribunal accepted that SZRTF had given birth to a child in Australia on 8 November 2011. The tribunal also accepted that the child was born out of wedlock, and that, as such, she and her partner had breached family planning laws and would have to pay a social compensation fee. It was satisfied, however, that China’s family planning laws and policies applied generally to the Chinese population, that they were considered appropriate in China and were adapted to achieve a legitimate national objective of controlling population growth. It was not satisfied that the law would be applied to the respondents in a discriminatory manner because the child had been born out of wedlock and her father was not of marriageable age. It found that, subject to the payment of the social compensation fee, SZRTG would enjoy the same rights to household registration as other children in China. It rejected SZRTF’s claim that she and her boyfriend would not be able to raise the funds necessary to pay the social compensation fee for their daughter. It also found, contrary to her claims, that SZRTF’s relationship with her parents had not broken down, and that she was in regular contact with them. It did not accept that they would not support her on her return to China. Importantly, the tribunal was not satisfied that any disapproval she, her daughter or boyfriend might face in China from either their families or society in general or as a young unmarried couple would be sufficiently serious as to amount to persecution or serious harm.

13    The tribunal dealt at [159] with the claim in the 3 August 2012 document that SZRTF was pregnant again:

The Tribunal has taken into account the applicant’s claim that she is pregnant again. Apart from the sentence in the letter she sent to the Tribunal there is no other information which has been provided by the applicant in support of this claim. Accordingly the Tribunal does not place any weight on this statement.

14    The tribunal did not consider that the complementary protection obligations were engaged. “Having regard to the likely magnitude of [the] fine, together with the [t]ribunal’s finding that [SZRTF] would not be deprived [of] the support of her parents”, the tribunal was not satisfied that there were “substantial grounds for believing that, as a necessary and foreseeable consequence of [SZRTF] being removed from Australia to China, there is a real risk that she will suffer significant harm on this basis”. The tribunal accepted that SZRTF might face some social stigmatism, having given birth to a child out of wedlock, but described her as “a resourceful person”, noting that she was able to come to Australia, study and support herself (albeit with the help of her parents). The tribunal did not accept that any social or general discrimination against her for being a mother out of wedlock would amount to a real risk of significant harm.

15    The tribunal concluded that neither respondent was a person to whom Australia owed protection obligations.

The show cause application

16    As I mentioned earlier, seven grounds were pleaded in the application before the Federal Circuit Court. It is not necessary to refer to them all. Only the first and last are relevant to this appeal.

17    The first ground is the subject of the notice of contention. The respondents pleaded that the tribunal was in breach of s 425(1) of the Migration Act by failing to invite SZRTF to a further hearing to give evidence and present arguments relating to her alleged second pregnancy and her fears resulting from it.

18    The primary judge rejected the argument. His Honour said (at [28]) that s 425(1) refers to issues which the tribunal identifies as dispositive of the application, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [35]; SZNTO v Minister for Immigration and Citizenship (2010) 114 ALD 129 at [12] and [13]. He said that no new issue within the meaning of the section arose when the tribunal considered “the late and unverified allegation” that SZRTF was pregnant again. Rather, he said “the new allegation was a further particular to the extant issue of the first applicant’s fears arising from the application of China’s family planning laws”, referring to Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489 (“SZKTI”) at [51]. His Honour said that the tribunal had an obligation to consider the new claim but that because it was incidental to the claim already dealt with at the hearing it was unnecessary to provide “a further hearing opportunity”.

19    On the last ground, the subject of the Minister’s appeal, the primary judge noted that the respondents had not identified the particular type of inquiry or examination they say should have been conducted. His Honour also noted that there was no evidence indicating the reliability of possible tests or inquiries. He said that it may well be that a definitive answer to the question of whether the applicant was pregnant could have necessitated delay in the tribunal making its decision. Yet, his Honour said (at [58]) that it was his view that “if the tribunal was not minded to believe the simple assertion by the applicant, it could have asked for a statement from a medical practitioner about the outcome of a pregnancy test”.

20    Noting that there was no evidence that the first respondent was actually pregnant at the time of her statement to the tribunal, his Honour said that, if she was not in fact pregnant at that time, there would not have been any unfairness in failing to investigate her allegation. Yet, his Honour said (at [59]) “it would not have been difficult for the Tribunal to resolve the question before making its decision. Material, in the form of a pregnancy test, would have been readily available”.

21    The primary judge considered that the failure to seek a pregnancy test was a failure to make an inquiry about a critical fact because it raised two issues upon deportation to China: one of possible forced sterilisation, the other of an increase in the social compensation fee. His Honour said (at [63]):

The Tribunal’s assessment of the social compensation fee and its impact on [SZRTF] bore upon both criteria for a protection visa. As the fee increases, so it affects the capacity of a person to subsist, which may amount to significant harm for the purposes of the complementary protection criteria. Further, it may have been open to [SZRTF] to claim that multiple pregnancies expose a person to the discriminatory application of the policy. The Tribunal’s finding in that regard was based upon the fact of a single pregnancy.

22    His Honour concluded that the tribunal fell into error by not inquiring about the second pregnancy. He held that the inquiry the tribunal could have made was a simple one. He postulated that the tribunal could have asked SZRTF for the result of a pregnancy test or a statement from a medical practitioner.

23    His Honour further held (at [64]) that it was “an obvious inquiry in relation to [SZRTF’s] claims of fear because of the Chinese one child policy”. He said that her claim to be pregnant was not just an item of evidence to which the tribunal could give no weight. He said that it was at least a further particular of her claim to fear persecution arising from the Chinese one-child policy and that the claim needed to be considered. If the tribunal was not minded to accept SZRTF’s assertion, his Honour said, inquiry was called for.

24    Finally, his Honour held (at [65]) that “the fact of whether [SZRTF] was pregnant again was critical to the review”. He said that, although the tribunal had found that the Chinese one-child laws were laws of general application, it also had to consider whether they would be applied in a discriminatory fashion. He said that the question of multiple pregnancies was relevant to the inquiry and also to the assessment of the complementary protection criterion. He concluded that the tribunal fell into jurisdictional error by giving no weight to the SZRTF’s assertion about the second pregnancy without inquiring into it. He described the error as a constructive failure of jurisdiction because the tribunal “failed to meet its duty of review”.

25    I should also mention ground 2 of the show cause application. By that ground the respondents pleaded that the tribunal erred in finding that “China’s family planning laws and regulations (one child policy)” applied generally to the Chinese population in the absence of evidence to support the finding and “where such evidence as there was was contrary to it”. The primary judge held (at [34]) that this ground of review was unsustainable because of “the broad acceptance that China’s one child policy is a law of general application (even though local means of enforcement may differ)”. His Honour said that whether a policy or law amounts to a law of general application was question of fact for the tribunal upon which it was entitled to utilise its own expertise. He noted that the tribunal had not failed to address whether the laws would be applied in a discriminatory manner or whether SZRTF would suffer significant harm (for the purposes of the complementary protection criterion) because of the application of the laws. As I have already observed, no complaint is made about this aspect of his Honour’s decision.

No duty to inquire

26    As the plurality emphasised in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (“SZIAI”) at [25], the tribunal’s duty is to review the Minister’s decision. To that end it may seek further information it considers relevant, including by inviting a person to give additional information (s 424). It may require the Secretary to arrange for an investigation or a medical examination (s 427). Generally speaking, however, it has no duty to do either: See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (“SZGUR”) at [22] (French CJ and Kiefel J).

27    In SZIAI the plurality went on to observe (at [25]):

It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

(Footnote omitted.)

28    These somewhat cautious remarks indicate that the circumstances in which a duty will arise and jurisdictional error will result from a failure to discharge it, are likely to be “rare and exceptional” (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 (“Le”) at [60] per Kenny J).

29    The Minister’s position in this case is that the primary judge erred in finding that the tribunal’s failure to inquire into SZRTF’s statement about her second pregnancy was a jurisdictional error of the kind that SZIAI acknowledged might exist. In short, the Minister argued that there was no obvious inquiry the tribunal could have made, that the second pregnancy was not a critical fact of the kind contemplated in SZIAI and, in any case, its existence was not easily ascertained. He emphasised that the fact that it might have been reasonable to make an inquiry does not mean that the failure to do so amounts to a jurisdictional error (SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 per Bennett J at [30]).

30    Before SZIAI this court had held that an unreasonable failure to ascertain relevant facts which the decision-maker knows to be readily available might amount to an improper exercise of power within the meaning of that expression in the Administrative Decisions (Judicial Review) Act 1977 (Cth): Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J at 169–70. Cf. Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178 per Toohey J; Luu v Renevier (1989) 91 ALR 39 at 47–50). As Wilcox J put it in Prasad at 169–170:

The circumstances under which a decision will be invalid for failure to inquire are … strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make the inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made … to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

(Emphasis added.)

31    Similarly, in Le Kenny J held (at [60]) that “in certain rare or exceptional circumstances”, the failure of the tribunal to inquire might amount to jurisdictional error “because the failure may render the ensuing decision manifestly unreasonable in the [Wednesbury sense]”, that is to say, so unreasonable that no reasonable decision-maker could ever have made it (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR). In SZIAI the plurality appear to have accepted that the failure to make such an inquiry could be Wednesbury unreasonable. In their submissions the respondents referred to other cases, such as Le, in which a failure to make inquiries was found to be unreasonable in the Wednesbury sense. But the respondents did not put their case in this way and the notice of contention does not seek to support the decision of the primary judge on such a basis. Nothing may turn on this, however. In either case, it would be necessary (at least) that the fact causing for the inquiry be “critical”, the inquiry “obvious” and the evidence “easily ascertained” (SZIAI at [25]).

32    The Minister submitted that there was no obvious inquiry that could have been made. He argued that merely because the tribunal could have asked for a statement from a medical practitioner about the outcome of a pregnancy test (as the primary judge said) does not mean that it falls into jurisdictional error if it does not. That is true, but at this stage of the inquiry, the question is not whether there has been jurisdictional error, but whether there was an obvious inquiry to be made. I am not persuaded that the primary judge erred in deciding that there was an obvious inquiry, although I am not convinced that the inquiry his Honour suggested was necessarily the right one. No evidence was ever adduced that the pregnancy had been confirmed by a doctor.

33    The Minister submitted that to say how the inquiry could have been made does not answer how it was obvious. That may be so, too, but it was a relevant consideration. The Minister also pointed out that the respondents did not identify the particular inquiry that should have been undertaken. There was, indeed, no real indication, let alone evidence, as to the stage the alleged pregnancy had reached. Nor, as the primary judge, himself, noted (assuming that the pregnancy was in its early stages) was there any evidence about the reliability of alternative tests or inquiries at that stage (whatever it might have been). But in the circumstances of this case the Minister’s point is disingenuous. The inquiry was obvious. What information the inquiry might have generated is another matter. As the primary judge put it, SZRTF was either pregnant or she was not. A report from a medical practitioner would have sealed the matter. Absent visible signs of pregnancy, the obvious inquiry was to seek confirmation from a doctor. The tribunal could have asked SZRTF to provide a medical report. The question is whether it was duty-bound to do so. Alternatively, it had the power under s 427(1)(d) of the Migration Act (and perhaps also under s 60) to require the Secretary to arrange for a medical examination, although, for some unexplained reason, her counsel eschewed reliance on the section in the court below. I note, however, that SZRTF would not have been obliged to attend such an examination (SZGUR per Gummow J at [87]). There was no evidence to indicate that she had offered or was willing to do so.

34    The Minister also argued that his Honour’s statement that a pregnancy test would have been readily available contradicted his earlier remark that there was no evidence demonstrating the reliability of alternative tests. There is certainly a tension between the two statements but at each point his Honour was addressing a different question.

35    I am not satisfied that his Honour erred in finding that information about the pregnancy (assuming there was in fact a pregnancy) would have been readily available.

36    The more difficult question is whether the further pregnancy was a critical fact.

37    In SZIAI the High Court did not explain what it meant by a “critical fact”.

38    Before SZIAI, Wilcox J’s statement in Prasad that the further inquiries must be “centrally relevant to the decision to be made” was cited with approval in a number of cases. At least two commentators have equated “centrally relevant” with “critical”: Mark Smyth, “Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals” (2010) 34 Melb UL Rev 230; Matthew Groves, “The Duty to Inquire in Tribunal Proceedings” (2011) 33 Syd Law Rev 177 (“Groves”). This Court also appears to have treated the expressions as synonyms, notwithstanding the High Court’s preference for a different term. See, for example, Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 (“Dhanoa”); Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 (Edmonds J).

39    It is not always easy to say what information will be critical. Each case will turn on its own facts. But information will not be critical or centrally relevant if it would have made no difference to the outcome (Dhanoa at [50] per Jagot and Foster JJ). Here, it is impossible to say that the information would have made no difference. The claim of religious persecution aside, the factual premise for all the tribunal’s conclusions was that she had one child out of wedlock. But the fact that the information would not have made no difference to the outcome does not make it critical.

40    In the relevant sense “critical” means “of decisive importance with respect to the outcome; crucial” (Macquarie Dictionary online) (cf. “tending to determine or decide; decisive, crucial”: Oxford English Dictionary on-line). Professor Groves pointed out in 2011 that “no case has gone so far as to suggest that information must be decisive to the ultimate issue” (Groves at 202) and I was taken to none since then. Still, it seems to me that for a fact to be critical it must at least be decisive of, or crucially important to an anterior issue which provides “a sufficient link” to the outcome of the review. That is not the case here. At best for the respondents, all the inquiry would have achieved is confirmation of the pregnancy. At worst, it would have shown that SZRTF was mistaken or dishonest. Even if the inquiry had confirmed the pregnancy, numerous other questions remained to be decided before the tribunal could be satisfied that the respondents were entitled to protection visas.

41    Information could be critical if it tended to undermine the tribunal’s understanding of the applicant’s account, such as in Le, where a mistranslation of a statement by the visa applicant’s husband and sponsor “meant that the significance of the primary decision-maker’s decision record and the typed notes of interview was doubtful or uncertain in a number of critical respects” ([76]). That, however, is not this case.

42    In Prasad the Minister had refused an application for a permanent entry permit to a Fijian citizen who was married to a holder of such a permit because the Minister considered (based on advice supplied by the investigating Departmental case officers) that the marriage was not genuine. The Minister had a policy of refusing permanent entry permits in such cases. Eight statutory declarations were furnished to the Department on the applicant’s behalf and were available to the Minister and the Immigration Review Panel. Three of the declarants claimed to live in the same block of flats as the Prasads, three claimed to have visited them there and to have received them, visiting together, in their own home and one claimed to have seen them together on a recurring basis at the football. Their evidence therefore went to “a matter of central relevance” – whether Mr and Mrs Prasad were living together as a married couple. Yet, no comment was sought on this material and the members of the Panel did not ask themselves “the obvious question whether the content of the declarations called in question the reliability of the officers’ views” ([166]). Unsurprisingly, Wilcox J held that the Minister was bound to take the declarations into account.

43    In Videto Toohey J held that the decision-maker was required to inquire into the nature of the applicant’s relationship with his son where this was a ground for the granting of a temporary entry permit on humanitarian grounds.

44    These cases are readily distinguishable. So, too, is Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241; [2009] FCA 1247 upon which the respondents relied.

45    According to SZRTF’s statement, the newly acquired knowledge of the pregnancy increased her anxiety. There might have been a number of possible explanations for this. But it is reasonable to infer from the context that she was signalling to the tribunal that the new pregnancy increased her fear of persecution in China as a consequence of the enforcement of Chinese family planning laws. Her statement was plainly relevant. Relevance alone, however, is not enough and, ultimately, this was the reason the primary judge found the fact to be critical. That is apparent from what he said at [65]:

In my view, the fact of whether [SZRTF] was pregnant again was critical to the review. Although the Tribunal had found that the Chinese one child laws were laws of general application, it also had to consider whether they would be applied in the discriminatory fashion. The question of multiple pregnancies was relevant to that enquiry. Further, the question of multiple pregnancies bore on the assessment of the complementary protection criterion.

46    It seems to me that this finding is inconsistent with what the primary judge said earlier in relation to the first ground of the show cause application, describing the “new claim” as “incidental” to the claims already dealt with at the hearing and which did not require a further hearing opportunity. It is difficult to see how a fact can be both critical to the review so as to require the tribunal to undertake its own inquiries and at the same time merely incidental to the claims the tribunal had already dealt with so as to excuse it from providing the opportunity for a further hearing.

47    In SZIAI the relevant issue was whether the tribunal had committed jurisdictional error by not making its own inquiries into an allegation that certificates submitted by the appellant as evidence were forgeries. The High Court found that there was no jurisdictional error by reason of the tribunal’s failure to inquire. One of the reasons the plurality came to this conclusion was that there was nothing on the record to indicate that any further inquiry by the tribunal directed to the authenticity of the certificates could have yielded a useful result (at [26]). In other words, there was no material to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of the decision. And so it is here.

48    Furthermore, there is no reason why, if evidence to support the pregnancy was available, SZRTF, herself, could not have supplied it. It was for her to provide the evidence in support of her claim.

49    For all these reasons, I am unable to accept that the pregnancy was a critical fact providing a sufficient link to the outcome as to amount to a failure to review. In my view, the primary judge erred in concluding that the tribunal fell into jurisdictional error by failing to inquire into the pregnancy.

No duty to invite the respondents to a further hearing

50    The tribunal’s obligation to invite a visa applicant to an inquiry stems from s 425(1) of the Migration Act. It provides:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(Emphasis added.)

51    The obligation does not always arise. For example, the tribunal is under no obligation to invite an applicant to a hearing if it considers it should decide the review in her favour on the basis of the material before it.

52    Section 425(1) is part of a suite of provisions in the Act which (in the case of on-shore visa applicants) establishes a code of procedure for the conduct of the review: SZKTI at [3]. It appears in Pt 7 Div 4 of the Act, which is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals (s 422B).

53    In SZBEL the High Court said (at [35]) that the issues in relation to the decision under review are not confined to the issues considered by the delegate. But if the tribunal takes no steps to identify any issue other those the delegate considered dispositive, and does not inform the applicant of such an issue, the applicant is entitled to assume that the issues the delegate considered dispositive are the issues in relation to the decision under review. The Court went on:

[U]nless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

54    Whether an invitation to attend a further hearing should be extended to an applicant will always depend on the circumstances of the case. Matters may arise requiring an invitation to a further hearing: SZKTI at [51].

55    In the present case, the delegate’s decision was immaterial. SZRTF was pregnant then with her first child, not her second. But the tribunal did not identify the further pregnancy as an issue dispositive of the application.

56    The respondents relied on the following remarks in SZBEL at [47]:

It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

(Emphasis in original.)

57    But there is nothing in the tribunal’s decision which suggests that it thought the second pregnancy might have been important to the decision. In SZBEL the High Court held (at [44]) that the tribunal failed to accord procedural fairness to the appellant because he was not given a sufficient opportunity to give evidence or make submissions “about what turned out to be two of the three determinative issues arising in relation to the decision under review”. Nothing like that occurred here.

58    Procedural fairness requires that the party liable to be directly affected by a decision is given a reasonable opportunity to be heard. Ordinarily, that involves giving the affected party the chance to ascertain the relevant issues and to be informed of the nature and content of adverse material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 15–16. In this case, the respondents had that opportunity.

59    The contents of the duty of procedural fairness depend on the circumstances of the case and the statutory framework within which the statutory power is exercised: SZBEL at [26]. In addition to s 425, the statutory framework includes:

    The capacity of an applicant for review by the tribunal to give the registrar a statutory declaration in relation to any matter of fact that the applicant wishes the tribunal to consider and written arguments relating to the issues arising in relation to the decision under review (s 423(1));

    The tribunal’s power to seek any additional information it considers relevant (s 424); and

    The obligations of the tribunal in ss 424AA and 424A to give an applicant particulars of any information the tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, inviting the applicant to comment on or respond to the information and advising the applicant that he or she may seek additional time to do so, and the exceptions to that obligation.

60    Section 424A relevantly provides:

424A    Information and invitation given in writing by Tribunal

    (1)    Subject to subsections (2A) and (3), the Tribunal must:

    (a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and

    (b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

    (c)    invite the applicant to comment on or respond to it.

    (2)    …

    (2A)     …

    (3)    This section does not apply to information:

    …

    (b)    that the applicant gave for the purpose of the application for review;

    …

61    The statement SZRTF made about the second pregnancy was information that she gave for the purpose of the application for review. The tribunal was obliged to give her an invitation to comment on or respond to concerns it had about the matter if those concerns would be “the reason, or a part of the reason, for affirming the decision under review”. It is plain, however, that the tribunal did not consider that its concerns about the pregnancy would be the reason or a part of the reason for affirming the decision under review. Having made the observation about the statement at [159], the tribunal did not mention the matter again.

62    In any case, the obligation to comment or respond only extends to “information” and “information” “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.” (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24] per Finn and Stone JJ, cited with approval by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18]).

63    In these circumstances, it is difficult to see how the tribunal could be obliged to invite SZRTF to a second hearing merely because she told them that she was pregnant again. To conclude that there was such an obligation sits uncomfortably with s 424A. In my opinion, on a proper analysis of the legislative scheme, there is none. There was no procedural unfairness in not issuing an invitation to SZRTF to attend a further hearing.

64    The primary judge’s approach drew on the High Court’s decision in SZKTI. In that case the visa applicant claimed to fear persecution in China because he was a member of a religious group that the Chinese Communist Party refers to as the “Shouters” but which its members call the “Local Church”, the same church SZRTF claims to have attended on her visit to China. He, too, alleged that his religious activities included spreading the gospel while he was in China. He claimed to fear that the Chinese authorities would arrest him if he returned to China because of his membership of the Local Church. The tribunal requested additional information of SZKTI about contact persons in Australia whom, he said, would support his claims. After that information was provided, the tribunal telephoned one of them, a Mr Cheah. The tribunal then wrote to SZKTI informing him of what Mr Cheah said (including his ignorance of SZKTI’s involvement with the Local Church in China), of the superficial knowledge he had of SZKTI and of the potential effect of this information on SZKTI’s credibility. SZKTI provided an explanation in writing, which the tribunal did not accept. The tribunal found that he was not a practising Christian when he left China and was not a committed Christian.

65    SZKTI relevantly contended that the tribunal was obliged to issue him with a second invitation to appear before it to give evidence and present arguments regarding what were said to be additional issues arising from the telephone inquiries the tribunal had made of Mr Cheah. The Court held (at [51]) that Mr Cheah’s evidence was “additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing … The extant issue was whether the first respondent had been an active Christian in China. Mr Cheah’s knowledge of [SZKTI’s] past activities in China deriving from any account given to him by [SZKTI] was directly related to that issue”.

66    Here, the further pregnancy was additional evidence or, as the primary judge put it, a further particular, in support of SZRTF’s claimed fear that she would suffer discrimination by reason of China’s family planning laws and policies. If accepted as fact, it might have strengthened her claim, it might not. The extant issue was whether she feared that she would suffer discrimination by reason of China’s family planning laws. She was well aware that that was an issue and was given ample opportunity to address it. Even if the fact of pregnancy is properly to be classed as an issue within the meaning of s 425 of the Migration Act, as the respondents contended, it was something SZRTF knew and that she, herself, had raised. It was open to her to submit evidence confirming the pregnancy (just as she had earlier submitted a birth certificate confirming the birth of her first child). The statement that she was now pregnant was not evidence, at least in the strict sense, as the primary judge described it. It was merely an assertion made in a submission. It was not necessary for the tribunal to put to her that her assertion might not be accepted (cf. SZBEL at [47]). It was for SZRTF to satisfy the tribunal that she was pregnant and to submit any evidence that she wanted the tribunal to consider (cf. SZGUR per Gummow J at [84]). If she needed time to do so, she could have requested it.

67    For these reasons the notice of contention must be dismissed.

Conclusion

68    The appeal should be allowed. SZRTF should pay the Minister’s costs.

Associate:

Dated:    18 December 2013