FEDERAL COURT OF AUSTRALIA

Hinton v Minister for Immigration and Border Protection [2015] FCA 408

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant is to pay the costs of the First Respondent, 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

1    Mr Hinton is an Australian citizen. He married Ms Nguyen Thi Suong, a Vietnamese citizen, in Sydney on 11 January 2008. Mr Hinton lodged an application to sponsor a ‘partner’ to migrate to Australia on 7 April 2008. The application for Ms Nguyen to migrate to Australia was lodged on 3 June 2008. Her two adult children, Ms Tran Thi Be Giang, born on 7 March 1986 and Mr Tran Hoang Liem, born on 19 March 1984 were included in Ms Nguyen’s application. They were described as her dependents.

2    The application was rejected on 22 October 2008. On 3 December 2010, after a Migration Review Tribunal review and a further sponsorship application, Ms Nguyen’s application for a Partner (Subclass 100) visa was approved for herself and for her daughter, Ms Tran. The application for Mr Tran, Ms Nguyen’s son, was rejected.

3    In his reasons, the delegate recorded that Mr Tran had been studying English since February 2010, attending three evening lessons per week. He also found that Mr Tran worked as a barber and as a receptionist in the family hotel run by his uncle. On weighing the evidence, the delegate concluded that Mr Tran did not meet the requirements of the Migration Regulations 1994 (Cth), Sch 2, cl 309.321, as he was not ‘dependent’ on his mother and not a member of the family unit as required by reg 1.12.

4    An application for review of the Tribunal decision was lodged on 30 December 2010. The Tribunal dismissed the application for review. An application for judicial review was pursued in the Federal Circuit Court of Australia, but was dismissed. Mr Hinton now appeals from that decision of the Federal Circuit Court of 31 October 2014: Hinton v Minister for Immigration & Anor [2014] FCCA 2505.

THE STATUTORY FRAMEWORK

5    Pursuant to reg 309.311, a secondary applicant, such as Mr Tran, must be ‘a member of the family unit of … a person who satisfies the primary criteria in Subdivision 309.21’, which requires Ms Nguyen to be the spouse of an Australian citizen. A ‘member of the family unit’ is defined in reg 1.12 as including a ‘dependent child of the family head or a spouse of the family head …’. By reg 1.03 a ‘dependent child’ includes a child over 18 who is dependent on a person.

6    ‘Dependent’ has a two limb definition in reg 1.05A as follows:

(1)    … a person (the first person) is dependent on another person if:

(a)    at the time when it was necessary to establish whether the first person is dependent on the other person:

(i)    the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

(ii)    the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs, clothing and shelter; or

(b)    the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person's bodily or mental functions.

(emphasis added)

BEFORE the TRIBUNAL

7    Although the original hearing before the Tribunal was listed for 22 November 2012, it was rescheduled to 9 January 2013 and postponed again due to Mr Hinton’s serious illness and hospitalisation. On 19 December 2012, Mr Hinton’s solicitor and migration agent submitted further documentation, including Mr Tran’s statement in Vietnamese, translated into English. In his statement, Mr Tran described his work, such as it was, his study and the support which his mother had given him. He stated that since he was born, he had been emotionally and financially dependent on his mother. There was evidence in the form of invoices for money transfers and certificates. That evidence covered the period from September 2011 until October 2012.

8    On 8 March 2013, Mr Hinton’s migration agent informed the Tribunal by letter that due to his medical condition he would not be able to attend the hearing either in person or by phone (8 March 2013 Letter). The Tribunal was asked to make its decision on the papers. The 8 March 2013 Letter also outlined the evidence in support of the submission that Mr Tran’s mother had supported him until that date and that he was reliant on her for his basic needs. The matter was clearly put in the present tense.

9    There were two other letters at about this time. On 7 March 2013, the Tribunal sent a letter to Mr Hinton inviting him to provide information on:

    his medical condition;

    the expected duration of any illness;

    any other medical information; and

    any other information which may be relevant to the Tribunal’s review.

10    Options were provided to him, such as participating by phone or indicating the Tribunal could decide the matter on the papers. Probably, but not certainly, in response to that letter, there was a letter of the same date handwritten by Mr Hinton (7 March 2013 Letter), reading as follows:

Dear Sir,

I apologise for not being able to attend the MRT hearing as I am still in an isolation ward at St George Hospital. I have no idea on when I will be discharged as I was severely ill when I was hospitalised. I ask that leave be granted for this appeal as I cannot leave the isolation ward but I can speak on the mobile phone.

Since I met my wife, I knew that my stepson [named] is dependent on my wife. He relies on my wife for day to day living expenses. As far as I know, [he] was never properly trained in any proper job and as a result has helped his uncle and myself – manual work for his uncle in a hotel and some import work for me when I have been in Vietnam. He was paid an allowance for doing these things. [He] has also undertaken on the job training at a hairdressing salon for a year which his mother paid for.

My wife has sent money monthly to [him] since her arrival in Australia so that he can survive in Vietnam.

I would appreciate favourable response in allowing [him] to come to Australia so that he can help the family business that is sending Australian products to Vietnam and other countries. I certainly need the help as I will take a very long time to recover and [he] will be able to learn this business and the family can be one unit again. We all miss him and he will really help the situation I am in now.

Yours sincerely,

(name)

(emphasis added)

11    On 8 May 2013, the Tribunal gave its decision. It was satisfied that Mr Tran had met the requirements of dependency at the time of the visa application (at [38]), however, it found ‘limited evidence’ of his activities since late 2010 after he had completed training at a barbershop (at [40]). It also noted that there was evidence of several money transfers to Mr Tran over 13 months from 6 September 2011 to 21 October 2012, but ‘no information that any other financial support’ was provided (at [41]). The following are the key passages (at [38]-[42]):

38.    The Tribunal is satisfied that at the time of the application the visa applicant was substantially reliant on the primary visa applicant. This had been the case for a substantial period immediately before the visa application was made. The financial support being provided was to meet the visa applicant’s basic needs of food, shelter and clothing. The visa applicant’s reliance on the primary visa applicant was greater than his reliance on any other person or source of financial support to meet those basic needs. The visa applicant therefore satisfies the requirements of 1.05A. He is therefore a member of the family unit of the primary visa applicant at the time of the application, in the terms of r.1.12. The Tribunal is satisfied that he made a combined application with the primary visa applicant. He therefore satisfies the criteria in cl.309.311.

39.    The Tribunal accepts that at the beginning of 2010 the visa applicant began on the job training at a barber shop. He attended the shop five days a week for eight hours a day. He continued as a trainee until late 2010. The visa applicant had also been attending English courses, three nights a week, since 23 February 2010. The Tribunal accepts that the primary visa applicant continued to support the visa applicant during this time as she had previously.

40.    The primary visa applicant left for Australia in 2010. The visa applicant states that she has continued to provide financial support to him since then. However, there is limited evidence as to the visa applicant’s activities since his barbershop training ended in late 2010. He states that he has not continued with study as he did not do well. He has been studying an English course three nights a week and his mother paid for this by sending money from Australia.

41.    The evidence provided by the review applicant indicates that there have been several money transfers to the visa applicant between 6 September 2011 and 21 October 2012, a period of 13 months. There is no information that any other financial support has been provided.

42.    The legislative requirement is that the financial support be for the basic needs of food clothing and shelter. The payment of tuition fees by the primary visa applicant does not meet this requirement. The direct financial support of which there is evidence continued for 13 months in the approximately three years since the primary visa applicant left for Australia. It appears on the available evidence to have ceased six months ago. The total amount transferred is $2950.00 between 6 September 2011 and 21 October 2012. This is an average of approximately $225.00 a month. Based on the information before it, this is the amount on which the visa applicant relied on his basic needs. As this has now ceased, the Tribunal is not satisfied that, at the time of this decision, the visa applicant is wholly or substantially dependent on the primary visa applicant for food, shelter and clothing for a substantial period. The Tribunal is not satisfied that the visa applicant’s reliance on the primary visa applicant was greater than his reliance on any other person or source of financial support to meet his basic needs. The Tribunal is not satisfied that the visa applicant is the dependent child of the primary visa applicant. Consequently, the visa applicant does not satisfy the requirements of 1.12(1). He does not satisfy the requirements of cl.309.321.

(emphasis added)

12    The Tribunal thus concluded that direct financial support for which there was evidence had ceased six months before the Tribunal’s decision. That being so, the Tribunal could not be satisfied that, at the time of the decision, Mr Tran was wholly or substantially dependent on his mother for food, shelter and clothing for a substantial period, let alone more so than any other person (it did not touch upon the question of anyone else), and, therefore, was not satisfied that he met the requirements of cl 309.321 of Sch 2.

13    Mr Hinton complains that he had made clear in his 7 March 2013 Letter to the Tribunal that his wife had sent money to the son since her arrival in Australia. By implication, he said, she was still doing so. Thus there was information. Although the Tribunal referred in its reasons (at [19]) to the 7 March 2013 Letter, it did not, by oversight or otherwise Mr Hinton says, note the information that was contained in it and, apparently, has overlooked the information entirely. The Tribunal’s reasons, where it referred to the 7 March 2013 Letter, were in these terms (at [19]):

On 8 March 2013, the review applicant’s representative wrote to the Tribunal, stating that the review applicant was still an inpatient at St George Hospital; had serious lung problems which made it difficult for him to speak or breathe. He therefore wished to have the review undertaken on the papers without a hearing. A submission and a letter from the review applicant were provided. This matter has therefore been determined on the evidence available to the Tribunal.

IN THE FEDERAL CIRCUIT COURT

14    Mr Hinton pursued an application for judicial review in the Federal Circuit Court. There were two grounds.

15    The first was that the Tribunal had failed to lawfully consider Mr Hinton’s 7 March 2013 Letter. That was pleaded as a breach of s 358 of the Migration Act 1958 (Cth).

16    This submission was rejected. The Federal Circuit Court noted (at [19]) that the 7 March 2013 Letter was in evidence and that the reference to it was not some mere tabulation in the material before it. Rather, it was part of the expressed basis on which the Tribunal recognised and accepted Mr Hinton’s wish as to how it was to proceed with the review (on the papers) (at [20]). It therefore proceeded to conduct the review in light of what was before it, which included the 7 March 2013 Letter and the submissions. This was held to be sufficient to constitute the Tribunal considering the letter.

17    The Federal Circuit Court held that while there was no express reference to the 7 March 2013 Letter in the Tribunal’s analysis, as opposed to the Tribunal citing it in the context of why the review was conducted without a hearing, the matters raised in it were addressed by the Tribunal. That is to say, the relevant subject matter was found to be the subject of consideration by the Tribunal. His Honour said (at [23]):

However, I agree with the Minister that while the Tribunal made no express reference to the letter in those parts of its analysis, the substance of the matters raised in the letter were addressed (“considered”) by the Tribunal. The visa applicant, relevantly, claimed that he was, and had been, financially (and emotionally) dependent on his mother. He claimed that she had been paying all of his living expenses. The Tribunal understood that this was his claim (see [28] at CB 216). Further, the Tribunal noted the representative’s written submissions that “...[s]ince [the applicant’s mother] left for Australia, [she] has continued to provide for the visa applicant’s basic needs...” ([29] at CB 216).

(emphasis added)

18    It followed, according to the Federal Circuit Court, that on a plain reading of the submissions, the 7 March 2013 Letter said nothing new, or added nothing to the claims as expressed in the written submissions and elsewhere. His Honour said (at [25]-[30], [43]-[44]):

25.    One, any plain reading of those submissions (particularly what is reproduced at CB 206) reveals that the applicant’s letter says nothing new, nor adds to the applicant’s or the visa applicant’s claims, as expressed in the written submissions and elsewhere by the visa applicant.

26.    Two, it is not clear whether the applicant’s letter was given to the Tribunal simply to support the “wish” that the Tribunal proceed “on [the] papers without a hearing” (CB 204.5). The representative’s letter, also containing submissions, states, immediately following the request to proceed without a hearing, and in the same opening paragraph “...[w]e have enclosed a letter from the Review Applicant for your perusal...” (CB 204.5). The letter then states (CB 204.5):

“...Further, we would like to attend to the central issue of the matter concerning the dependency requirement and kindly request that you consider the following submissions: ...”

27.    On one reading of this, it could be said that the applicant’s letter was not intended to form part of those submissions but served its intended purpose, in supporting the applicant’s wish that the review “proceed on the papers”.

28.    However, even if what the representative stated in relation to the “central issue” in their submissions was also meant to include the Tribunal’s “perusal”, then any plain reading of those submissions (particularly at CB 206) reveals, as set out above, that the applicant’s letter says nothing new, nor adds to the applicant’s claims.

29.    For example, later in the written submissions, and as reproduced below, the representative stated that the visa applicant’s mother was “still currently” the sole and substantial source of the applicant’s financial needs.

30.    In the applicant’s letter, nothing new is added with the statement that the visa applicant is dependent on the applicant’s wife and that the visa applicant relies on her for living expenses.

…

43.    As stated above, this claim was also repeated in the representative’s written submissions. The Tribunal specifically referred to this ([29] at CB 216) and it proceeded to consider the applicant’s claim in this light. There is nothing in the Tribunal’s decision record to say that it did not proceed in its consideration on this basis.

44.    In this context, the Tribunal turned to consider the corroborative evidence before it. This was the evidence of the money transfers which the applicant’s representative had given to the Tribunal. When fairly read, the Tribunal’s finding (at [41] at CB 218) was that there was nothing of that nature before it (corroborative evidence by way of the money transfers) to show that the claim of financial support went beyond the period of 6 September 2011 to 21 October 2012.

(emphasis added)

19    The Federal Circuit Court was also of the view that the letter might simply have been provided in order to support Mr Hinton’s expressed wish that the review proceeding on the papers, rather than providing independently any further information or submissions.

20    It considered a submission under which the letter was characterised as being ‘evidence’. The Court was of the view that this added nothing to the analysis. Any distinction between what is evidence, as opposed to a claim, the Federal Circuit Court said (at [34]), must be seen in the light of Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 per Katzmann, Griffiths and Wigney JJ (at [29]). According to the Federal Circuit Court, no matter how the letter or its contents were characterised, it was at its highest a reference to the mother’s continued financial support of her son up to the date of the letter. His Honour said (at [33]-[35]):

33.    A number of further points must be made in relation to this. First, to the extent that the applicant emphasised that the applicant’s letter was “evidence” which, he says, was not considered, then any distinction between what is “evidence” as opposed to a “claim” must be seen in light of what was said in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [29]. Such a distinction:

“...might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”

(see also Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”) at [68] – [70]).

34.    The applicant’s characterisation before the Court of this material as “evidence” must be viewed as adding nothing further to the current analysis. While the material was fundamental to the Tribunal’s exercise, the Tribunal addressed the substance of the material. In this sense whether it is “evidence” does not give it any different character with additional consequence for the Tribunal’s exercise.

35.    The statements in the applicant’s letter referring to the visa applicant’s mother’s ongoing support, whether they be classified as “claims”, “information”, submissions or, as the applicant now submits, “evidence”, were, at their highest, that the visa applicant’s mother continued to financially support him by sending him money and continued to do so up to the date of the letter.

21    The Federal Circuit Court also held that the reference to ‘no information’ in [41] of the Tribunal’s reasons was a reference to there being no other evidence in the same vein as corroborative evidence of the money transfers. The Court said (at [38]):

The reference to “no information” in the second sentence at [41] (at CB 218) is plainly, and certainly on a fair reading, a reference to there being no other evidence in the same vein as the corroborative evidence of the money transfers.

22    The reasoning for this was contained in the previous paragraph of the Federal Circuit Court’s reasons (at [37]) where it said that close attention to what the Tribunal actually reasoned at [41] indicated that the first sentence of [41] was a reference to the corroborative evidence provided in the form of the money transfers. The Federal Circuit Court also noted (at [37]) that the Tribunal’s findings as to the date of the transfers was ‘factually probative of the evidence provided by [Mr Hinton]’. According to the Federal Circuit Court, the context of the Tribunal’s analysis was directed to the question as to his mother’s financial support for the applicant, that is, the claim that he was financially dependent on her.

23    The second ground argued before the Federal Circuit Court was that the Tribunal had failed to make an enquiry or invite Mr Hinton to update evidence of the support given by the mother, Ms Nguyen, to her son, and that such failure was a failure to complete the exercise of the Tribunal’s jurisdiction.

24    In addressing this ground, the Federal Circuit Court noted (at [57]) that the parties had agreed that the matter of money transfers was a critical fact in issue before the Tribunal, and that the existence of any further money transfers could have been easily ascertained:

The parties agreed (at least there was no dispute) that the matter of the money transfers was a critical fact in issue before the Tribunal. Further, there was no dispute that the existence of any further money transfer documents could have been “easily ascertained”.

25    The Federal Circuit Court paid regard to Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, where the plurality in the High Court said (at [25]) (footnotes omitted):

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

(emphasis added)

In the context of that case, the High Court stated (at [24]) that there was nothing to indicate that further enquiry could have yielded any useful result.

26    After reference to SZIAI, his Honour noted that:

(a)    Mr Hinton had not attempted to explain if there was further information, why he, his wife or migration agent could not have supplied it to the Tribunal (at [63]-[64]), citing Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 per Katzmann J (at [48]); and

(b)    there was nothing before the Court to provide a basis to say that had the Tribunal made the enquiry, it would have had some relevance to, or an impact on, the outcome of the review (at [65]-[66]).

27    The Federal Circuit Court said (at [69]):

The applicant has not produced, or even made reference to, the existence of any evidence to assist in understanding what information the “obvious inquiry” would have gathered. In these circumstances, the Court is left with no basis on which to form a view that the obvious inquiry would have generated some evidence which may have led to the Tribunal making a different decision to the one that it actually made (with reference to SZIAI at [25]). The applicant’s argument presses for an inquiry to have been made without providing the basis to meet the circumstances envisaged by the High Court which may lead to a failure to conduct the review being made out. Ground two is not made out.

28    The Federal Circuit Court relied upon two decisions of this Court: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 per Kenny J; Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241 per Cowdroy J (at [82]). The summary in the Federal Circuit Court of those decisions was as follows (at [53]-[54]):

53.    First, Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 (“Le”) at [79] per Justice Kenny:

“...where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterized as unreasonable in the Wednesbury Corporation sense …”

54.    Second, Khant v Minister for Immigration and Citizenship [2009] FCA 1247; (2009) 112 ALD 241 at [82] per Cowdroy J:

“The court considers that the latter ground is relevant for the current circumstances. The court considers that traditionally Wednesbury unreasonableness has been seen as only applicable in the most extreme of circumstances. That may well be why the High Court allowed the appeal in SZIAI. The court does not consider that the tribunal’s failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the court prefers the view that the failure to make further inquiries of the appellant, or to inquire of the delegate or department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the Regulations leads to the conclusion that the tribunal failed to conduct a proper review. Despite the prolixity of the tribunal decision, in reality, the tribunal only served as a ‘rubber stamp’ for the primary decision, a decision that was obviously highly problematic, even on the evidence before the tribunal.”

29    Further, in the context of the availability of information, the Federal Circuit Court noted the relevance of the absence of information in the following terms (at [61]-[63]):

61.    For the purposes of the current matter, in my respectful view, there is nothing in these authorities to dispute the proposition that although matters before the Tribunal do not involve any legal onus of proof, it is for the applicant to put forward such evidence such that the Tribunal can reach the requisite level of satisfaction that the visa must be granted (s.65 of the Act, Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214 at [76], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 at [45]).

62.    In the current case, and in light of the above, I agree with the Minister’s argument that there was not a sufficient link to the outcome such as to say there was a failure to review.

63.    First, the applicant does not say this was an inquiry to be made of any third party. If there was evidence available as to the existence of financial transfers after October 2012, the applicant now has not attempted to explain why he, the visa applicant, his wife, or the representative could not have supplied it to the Tribunal. Noting that the representative had supplied such evidence for the period up to October 2012.

(emphasis added)

GROUNDS OF APPEAL IN THIS COURT

30    In substance, Mr Hinton raised the same grounds in this Court, namely:

1.    His Honour erred in finding that the [Tribunal] did not fail to comply with s. 358(1) of the Migration Act.

Particulars

(a)    Error in finding that the Tribunal lawfully considered [Mr Hinton’s] letter to it dated 7 March 2013.

(b)    Error in equating evidentiary material or information with submissions.

2.    His Honour erred in finding that the [Tribunal] did not fail to complete the exercise of its jurisdiction.

Particulars

(a)    Error in holding that to complete the exercise of its jurisdiction the Tribunal was not required to invite [Mr Hinton] to update evidence of financial support given by his spouse to her son, Hoang Liem Tran.

Ground 1

31    In support of ground 1, Mr Hinton relies on s 358(1) of the Migration Act which provides as follows:

358    Documents to be given to the Tribunal

(1)    An applicant for review by the Tribunal may give the Tribunal:

(a)    a written statement in relation to any matter of fact that the applicant wishes the Tribunal to consider; and

(b)    written arguments relating to the issues arising in relation to the decision under review.

…

32    Mr Hinton contends that the clear and obvious implication of a statutory right to make a written statements or arguments is that there is a corresponding duty upon the Tribunal to consider that evidence and those arguments insofar as they are relevant.

33    By comparison, s 423 of the Migration Act, which is the Refugee Review Tribunal’s analogue in the same terms, was considered in Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1234 where Mansfield J said (at [25]):

It is not disputed by the respondent that the Tribunal was obliged to consider the evidence which it received. Under the Act, once an application for review is brought to the Tribunal, the Secretary is obliged to provide certain information to the Tribunal pursuant to s 418 of the Act. That is information to which the Tribunal must have regard. There are other procedures by which the Tribunal procures or may procure evidence, eg. under ss 423 and 425(1)(a) of the Act. Once it has such evidence, in my view, it is obliged by implication to consider it. In addition, once it receives evidence in the exercise of its powers under ss 425(1)(b), 426 or 427, it is obliged to consider that material. If it failed to do so, it would be abdicating its obligation under the Act.

34    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, the Full Court (French J, as his Honour then was, and Sackville and Hely JJ) said (at [44]-[45]):

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

45    In conducting its review the tribunal must have regard to the criteria for the grant of a protection visa and in particular the criterion that the applicant for a visa is:

… a non-citizen in Australia to whom the [Tribunal] is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol;’ (s 36(2)(a) read with s 415(1))

The critical question which ordinarily will have to be addressed in applying this criterion is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.

35    In order to consider evidence or a submission there must be an ‘active intellectual process’ directed at it: Norvill v Chapman (1995) 57 FCR 451 (at 462).

36    Mr Hinton contends that the degree of financial support provided by Ms Nguyen to Mr Tran was clearly crucial to whether Mr Tran was dependent upon his mother. The Tribunal had before it the records of the money transfers to October 2012. It acknowledged this (at [41]). It then said in the same paragraph that there was ‘no information’ that any other financial support had been provided. That statement was, on one view, incorrect. Mr Hinton’s letter provided that information.

37    The Tribunal’s reference to the 7 March 2013 Letter (at [19]) was no more than a bare acknowledgement, it is said, of the existence of the letter and, further, its existence was acknowledged only in relation to Mr Hinton’s inability to attend the hearing. But in fact, Mr Hinton argues, the 7 March 2013 Letter said much more on the crucial topic of investigation for the Tribunal. Contrary to the Tribunal’s statement that there was no information, there was evidence that remittances had continued until the date of the 7 March 2013 Letter. Mr Hinton says there is no indication as to what, if any, weight the Tribunal gave to this statement in the letter. The only conclusion, it is argued, can be that it gave it no weight, if it considered the statement at all.

38    It may well be correct to conclude, as the Federal Circuit Court did, that a reference to ‘no information’ properly understood was a reference to no other external objective evidence in the same vein as the evidence of the previous money transfers. But this, it is argued, does not answer the question of what the Tribunal made of the information as to the support for Mr Tran and monthly remittances to him referred to in the 7 March 2013 Letter. The Tribunal was absolutely silent on these matters and it is by no means clear, Mr Hinton argues, that it discharged its function. It is contended that there can be no safe conclusion that the 7 March 2013 Letter was considered as required by s 358 of the Migration Act.

39    In addition, Mr Hinton relies upon the analysis of Justice Robertson in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 (at [54]), where his Honour said:

As to the Minister’s second point which involved the academic transcript being referred to by the Tribunal as one of the documents “about the [applicant’s] circumstances”, the applicant submitted that the Tribunal’s reference to “circumstances” was a reference to his eligibility under the Convention and it was therefore unlikely that the Tribunal would consider an academic transcript as being included in that material about his circumstances. Further, the applicant submitted that the academic transcript was unlikely to have been one of the documents lodged with his statement. It was highly likely that, rather than accompanying the statement, the academic transcript was submitted after his application.

40    Mr Hinton argues that it was wrong for the Federal Circuit Court to conclude that the characterisation of the letter as evidence was of no value, as evidence corroborating a claim raised by other evidence or material may give the claim added veracity. A failure to consider corroborative evidence can be jurisdictional error: see SZRKT (at [110]-[114]) where Justice Robertson said:

110    Minister for Immigration and Citizenship v SZNSP (2010) was another case where the Tribunal did take into account the material provided by the applicant and said to be corroborative. For that reason it casts no particular light on the facts of the present appeal: see the joint judgment, with which Katzmann J agreed, at [13]. The federal magistrate had held that the Tribunal fell into jurisdictional error in the manner in which it reached its decision by its failure to give consideration to the corroborative evidence produced by the applicant prior to its conclusion as to her credibility. The Full Court held that the federal magistrate had erred in this respect. At [33], North and Lander JJ said that consistently with Applicant S20/2002 it was open to the Tribunal to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement.

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

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

113    In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, referred to in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at [83], the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. The Court said at [63] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Migration Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.

114    As to Minister for Immigration and Citizenship v SZNPG at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims. First, however, the present appeal is not a case of mere misunderstanding but of failure to take into account corroborative material. Second, I agree with the federal magistrate at [32] that the case is not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence.

(emphasis added)

41    Mr Hinton says that the real issue was that there was a claim that financial support was ongoing as at the date of the 7 March 2013 Letter. Whether it was a claim or whether there was evidence, the statement that there was ‘no information’ on that crucial point was wrong. As the point was crucial (i.e. ongoing financial support), Mr Hinton says the error went to jurisdiction.

Consideration of Ground 1

42    It may be accepted that SZRKT, as recently approved in SZSRS by the Full Court, provides a very helpful analysis of the content of the duty provided for in s 358 of the Migration Act. It is less clear that the argument raised by Mr Hinton in relation to s 358 is correct.

43    Although s 358 of the Migration Act permits the applicant to provide ‘a written statement in relation to any matter of fact the applicant wishes the Tribunal to consider’, it is difficult to see, on a plain reading or as a matter of policy, that s 358 creates a corresponding duty on the Tribunal to consider a statement provided by an applicant. That is partly because of the content of s 359, which I will come to, but also because of the obvious fact that in many such applications, while a written statement may be put before the Tribunal, it does not follow that that statement bears at all upon the Tribunal’s duties or contains information which is relevant. It would be difficult to reconcile such an implied duty with the existing case law dealing with the question of failing to consider a claim or an integer of a claim, in the sense discussed in WAEE (at [44] and, particularly, at [45]) extracted above (at [34]).

44    WAEE suggests that the supporting material must be probative. The expression used in SZKRT (at [112]) and SZSRS (at [50]) was ‘cogent’. These descriptions may be contrasted with material which is neither probative nor cogent, but rather, for example, an unsupported assertion.

45    Secondly, if there were to be such a duty, it would have been easy for the legislature to express it in the clear terms of the statutory command which immediately follows s 358 in s 359 of the Migration Act. It provides:

359    Tribunal may seek additional information

(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.

…

(emphasis added)

46    To return to SZSRS, the Full Court noted (at [43]):

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

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

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

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

47    These propositions, in my view, create difficulty for Mr Hinton. Accepting that the statement that there is no indication as contained in [42] was putting the issue to highly, it is important to recall the requirement of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ (at 272), not to overzealously use the language adopted by a tribunal.

48    It does not appear to be the case that the 7 March 2013 Letter was overlooked in the decision-making process as it was expressly referred to (at [19]). It is more readily arguable that part of its content was overlooked. This does not mean, however, that the substance of the content was overlooked. While the letter itself was not specifically referred to again in the ‘Findings and Reasons’ section to the Tribunal’s decision, the Tribunal’s reasons dealt with the substantive material put forward in the letter in some detail, namely:

(a)    the applicant’s work for his uncle in a family hotel (at [35]-[36]);

(b)    the applicant’s work at a barber shop (at [39]); and

(c)    the claim that Mr Hinton’s wife continued to support the applicant after her arrival in Australia (at [39]-[41]).

49    Also of some significance is the fact that the assertion as to the ongoing payment had already been made in the submissions of 8 March 2013, where the ongoing support was also put in the present tense in italics in the following context and terms:

The dependent child in the current matter enrolled into various courses including an English course since 23 February 2010 and a traineeship which he undertook at the beginning of 2010. Although the Visa Applicant has engaged in some form of work on numerous occasions and for short periods of time in the past, he was either not paid for it or paid only trivial amounts. Despite this however, what is key to the present matter is whether the child, as a matter of fact, is wholly or substantially reliant upon his mother for his basic needs such as food, clothing and shelter regardless of whether he partook in studies or any other activities.

In the present matter, the Visa Applicant is wholly dependent upon his mother for his basic needs including food, shelter and clothing since his birth until present and without such financial support he would not be able to survive. At all times since his birth until now, his mother has been the sole source of his financial needs. The finances required for his food, clothing, shelter, education and all other needs have been provided for solely by his mother. Without such assistance, the Visa Applicant would not be able to survive.

Moreover, the mere fact that the dependent child has been solely reliant upon his mother from birth until now for all forms of financial support should strongly confirm that he is and has remained her dependent from birth. On no occasion as the dependent child engaged in paid employment to a level that would enable him to support himself. Even after his mother and sister’s migration to Australia, the Visa Applicant’s mother has continued to send over money and has met any required financial needs that the child may have including, but not limited to, his study and traineeship fees, his general living expenses and so forth.

The dependent child has lived under the same roof as his mother since birth until 2010 when his mother and sister migrated to Australia. Despite residing separately from his mother and sister, all payments in relation to his living arrangements and financial support required for the provision of food, clothing and pocket money has been provided wholly from his mother. The dependent child has never made any financial contributions to the payment of any household bills including the food or utilities as he is not and has not been in a capacity to do so. Additionally, all relevant study and traineeship fees of the dependent child have been paid for by his mother.

The dependent child’s mother has remained and is still currently the substantial, if not sole, source of his financial support for basic needs including clothes, food and shelter. Without such support, the child would not be able to survive independently. Therefore, as a matter of fact, the child is reliant upon his mother for financial support for his basic needs. It is thereby compelling that Hoang Liem Tran remains the dependent child of his mother who has, since the dependent child’s birth, supported him financially for all his needs.

We thereby seek to appeal the Tribunal’s discretion in determining that Hoang Liem Tran is a dependent child who needs to reunite with his family over here in Australia. Not only does his mother provide financial support for him but she also offers him emotional support and security. He truly misses his family who currently reside in Australia and we thereby kindly seek for your assistance to allow him to reunite with his family. (italicised emphasis in original)

50    There can be no doubt, after considering these submissions, that the Tribunal clearly understood that the contention was that the support was ongoing.

51    Therefore, while it was inaccurate to say that there was ‘no information’ that any financial support was provided other than between 6 September 2011 and 21 October 2012, the reference to ‘information’ before the Tribunal in [42] of its conclusions clearly related to something more than submissions or statements. In that regard, the 7 March 2013 Letter is indistinguishable from the 8 March 2013 Letter from his agents. Whether they be characterised as evidence or submissions, they are statements and information in respect of which there is no independent objective corroboration.

52    It would be wrong, in light of WAEE (at [47]) to conclude that the Tribunal failed to take into account the contention:

The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 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.

53    There is no doubt that the Tribunal considered the claim that the visa applicant remained dependent on money transfers made by his mother. That is the key issue that it was considering at [42].

54    In this regard, I would apply WAEE and Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 where the Full Court (North, Lander, Katzmann JJ) said (at [28]):

28    However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.

55    Despite the eloquent argument for Mr Hinton, the evidence or information referred to in this instance cannot be described as probative or cogent. It was a single sentence containing a bare assertion that the monthly payments had been made since his wife’s arrival, which was unsupported by any extraneous objective material such as that previously relied upon by the Tribunal in relation to the 6 September 2011 to 21 October 2012 payments. The balance of the 7 March 2013 Letter was peripheral in real terms to Mr Hinton’s claims. It was directed to the question of the application proceeding on the papers. The Tribunal did not err. The approach in the Federal Circuit Court was correct.

56    Ground 1 must fail.

Ground 2 – failure to further investigate

57    Mr Hinton complains that the Tribunal appears to have assumed that as there were no invoices submitted to the Tribunal bearing a date after October 2012, that remittances after that time must have stopped. This assumption, indeed, formed the basis of the Tribunal’s decision and was therefore axiomatically of crucial importance, Mr Hinton argues.

58    Mr Hinton contends that, in truth, there was no evidence one way or the other as to whether the remittances continued other than the statement by Mr Hinton himself in the 7 March 2013 Letter. Mr Hinton relies upon the observations made by a plurality in the High Court in SZIAI (at [25]), considered in the Federal Circuit Court and set out above (at [25]).

59    In SZRTF (at [40]), Katzmann J noted 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’.

60    In Le, an inquiry was not conducted into a possible mistranslation and the qualifications of an interpreter. That examination is summarised in the following passages per Kenny J (at [76]-[79]):

76    In summary, the fact of the mistranslation 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. The mistranslation raised uncertainties about events at the interview and the bases on which the primary decision-maker had recorded them. It also raised doubts about the adequacy of the interpreter and the reliability of what had been interpreted to the Departmental officer on that day. It might also have raised uncertainty about the significance of what the Departmental officers saw and heard at Mr Huynh’s on the day of the interview. These uncertainties raised further questions as to whether Mr Nguyen’s account of what had happened was more reliable than might otherwise have appeared.

77    This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker’s statements regarding Mr Nguyen’s supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen’s written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of the case, especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh’s residence that day.

78    These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal’s review. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le’s application was a matter for it to decide in conformity with the Act and the Regulations.

79    Accordingly, the present is a case where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterized as unreasonable in the Wednesbury Corporation sense. I would uphold the Federal Magistrate’s decision on this ground.

61    The position was also considered in Khant per Cowdroy J where the inquiry not conducted was as to clarification of evidence, and his Honour said (at [68], [73] and [78]):

68    Both SZIAI and Le formulate the type of information similarly: ‘an obvious inquiry about a critical fact’ (in SZIAI at [25]) or ‘obtain important information on a critical issue’ (in Le at [63]). The court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant’s failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the tribunal, it could not be clear precisely what those grounds were.

…

73    Further to the above, SZIAI requires that the inquiry be an obvious one in the circumstances. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the tribunal had his details. Alternatively, the tribunal could have contacted the delegate or department. The minister submits that it would be strange that in the circumstance that ss 359C and 360(3) prevented the tribunal from inviting the appellant before it that it should be able to seek oral evidence under ss 359(1) and 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the tribunal did not seek oral evidence, the tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the tribunal, merely that in certain circumstances it should be taken.

…

78    The court considers that a further inquiry of the appellant would have clarified the key issue, that being whether or not there were exceptional circumstances explaining his non-compliance with condition 8202 of his visa. The mere failure of the appellant to reply to the invitation was not evidence that there were no exceptional circumstances. As subsequent facts showed, such failure was because he never received the invitation. The tribunal was not to know that, but it could have emailed or phoned the appellant to find out with certainty whether there was evidence of exceptional circumstances. Such step would not have posed any difficulty, since the tribunal held the appellant’s email and telephone contact details. Positive contact with the appellant himself could have put beyond any doubt whether there were, in fact, exceptional circumstances. It is absurd to claim in the light of SZKTI that a simple telephone call or email to the appellant to make contact with him did not render such information ‘easily ascertainable’.

62    Shortly put, Mr Hinton says that the obvious inquiry to make was simply whether there were any further remittances after October 2012, or corroborating evidence of them. Mr Hinton argues that that inquiry could and should have been made pursuant to s 359(1) of the Migration Act. The issue of the further remittances was critical to the Tribunal’s decision and their existence (or not) could have easily been ascertained. He contends that by failing to make the enquiry, the Tribunal failed to complete the exercise of its jurisdiction.

63    It is not the case, Mr Hinton argues, that in either Khant or Le the applicant was required to adduce evidence of what would actually be the result of such an enquiry. Mr Hinton says that to require such evidence would be unrealistic. In this instance, Mr Hinton did not know when the decision would be made and was incapable of attending the hearing. In the circumstances, it is argued that Mr Hinton could not have known what the Tribunal may have found to be decisive.

64    Mr Hinton draws a contrast with SZRTF where the appellant made a written assertion very late in the proceedings that she was, again, pregnant, which was said to have increased her fear of persecution upon return to China in light of the ‘one child’ policy. It might have been expected in SZRTF for the claim to be backed by objective evidence, but it is argued that the appellant could not have predicted the need for that in this instance.

Consideration of Ground 2

65    In essence, Mr Hinton contends that the Tribunal should have made a further inquiry as to objective evidence to support the contention that his wife had continued to remit funds to the visa applicant after October 2012.

66    The starting point, in my view, is that the error described in SZIAI (at [25]), that is, a failure to make an inquiry about a critical fact, the existence of which is easily ascertained, will arise only in circumstances which are ‘rare and exceptional’: Le per Kenny J (at [60]).

67    It is difficult to identify what is rare and exceptional about this case. Obviously there has been a recognition of the need to provide the objective evidence in support of the assertion of remittances for the period up to October 2012. It is not clear why such evidence, if available, would not be supplied following that date; or, an explanation proffered as to why it was not then available. It was entirely within the power of Mr Hinton to produce the information which, it is claimed, should have been the subject of further inquiry by the Tribunal.

68    In SZRTF Katzmann J said (at [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.

69    Similarly, in SZTDX v Minister for Immigration and Border Protection [2014] FCA 515, Perry J observed (at [20]-[21]):

20    The Court below, however, held at [17] that “the Tribunal was not required to invite the [appellant] to provide information or arguments which he had failed to provide on his own initiative… [t]he Tribunal’s obligation to make enquiries is limited to a narrow range of circumstances, none of which were present in this case.” Accordingly, the Court below concluded that the Tribunal was not required to request more information.

21    I can see no error in the reasoning of the Court below in rejecting this ground. As the High Court held in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI), the Tribunal is under no general obligation to make inquiries. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ emphasised at 1129 [25]:

“The duty imposed upon the [Refugee Review] Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” (emphasis added)

70    As recognised in a number of cases, while there is no legal onus of proof in proceedings in the Tribunal, it is still for the applicant to put forward evidence sufficient to demonstrate satisfaction of the visa criteria. As the Full Court noted in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 (at [76]):

Procedural fairness did not require the delegate to identify what business or investment activities were unacceptable, nor the nature of the respondent’s involvement in such activities. In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

71    There is nothing in SZIAI which would be at odds with Lay Lat. The reasoning in Lay Lat alone would be sufficient to dispose of the second ground of appeal.

72    However, a further difficulty for Mr Hinton is that the test for error described in SZIAI is not satisfied in the present case. Part of the component of SZIAI was the requirement that there is ‘nothing on the record to indicate that any further enquiry by the Tribunal … could have yielded a useful result’: see the paragraph in SZIAI (at [26]):

[26]    The first reason is 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. There was nothing before the Federal Magistrates Court or the Federal Court 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 its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

73    In my view, the Federal Circuit Court was correct, with respect, to focus (at [69]) on the failure on the part of Mr Hinton to establish what the inquiry might have produced. There will be a range of cases. In some cases, it would not be reasonable to require an applicant, relying on the SZIAI principle, to lead evidence to prove the likely outcome of an inquiry. Those would be cases in which the content of the outcome, while being obvious and crucial, may not be known or within the capacity of the applicant to prove. In this case, the position is at the other end of the spectrum, in the sense that Mr Hinton would appear to be perfectly placed to adduce evidence of the likely outcome of the inquiry by producing receipts or other electronic evidence in the same or similar manner as that referred to by the Tribunal in relation to the period up to 2012 when the Tribunal was satisfied that payments had been sent. The Minister submits that without evidence from Mr Hinton as to the likely outcome of an enquiry as to the availability of further objective evidence from October 2012 onwards, it is impossible to conclude that the suggested inquiry, which was not made, had ‘a sufficient link to the outcome’ of the review in the sense discussed in SZIAI (at [25]).

74    It would certainly appear that Mr Hinton was best placed to provide receipts or similar documentation, if it existed. This may not fully answer the critical question, but substantially contributes to doing so. The receipts were provided up until October 2012 and thought to be relevant. The submissions suggest that evidence of ongoing support beyond October 2012 was provided, but detail of such was not provided after that time. The Tribunal was not satisfied that payment was continuing after that time. These issues were live since the Tribunal’s decision was delivered in May 2013. No evidence has been adduced since that time as to the availability of receipts or other evidentiary support for the contention that payments are ongoing. In those circumstances, it is not possible to be satisfied that an inquiry on that topic would have ‘a sufficient link to the outcome’ of the review, to adopt the expression used in SZIAI (at [25]).

CONCLUSION

75    The grounds of appeal cannot succeed. The appeal must be dismissed. That said, were relevant confirmatory evidence available of ongoing support, hopefully the position could be reviewed. The following orders are made:

1.    The appeal be dismissed.

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

Associate:

Dated:    1 May 2015