FEDERAL COURT OF AUSTRALIA

ABV16 v Minister for Immigration and Border Protection [2017] FCA 184

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 1 of the orders of the Federal Circuit Court of Australia dated 6 May 2016 is set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 17 December 2015 in case number 1415437.

3.    A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law the application of the appellant for review of the decision of a delegate of the first respondent made on 1 September 2014 to refuse to grant the appellant a Protection (class XA) visa.

4.    The first respondent pay the appellant’s costs of the appeal.

5.    Order 2 of the orders of the Federal Circuit Court of Australia dated 6 May 2016 is set aside and, in lieu thereof, there be an order that the costs of the appellant’s application for judicial review before the Federal Circuit Court of Australia in case number SYG 42 of 2016 be paid by the first respondent.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of China. He is a four year old child who was born in Australia. His appeal in this Court is brought by his mother as his litigation representative.

2    On 14 January 2014 the appellant’s mother lodged on his behalf an application for a Protection (Class XA) visa (“visa”). Unless otherwise indicated I will refer to the claims and application made on behalf of the appellant as the appellant’s claims or the appellant’s application. On 1 September 2014 a delegate (“delegate”) of the first respondent (“Minister”) refused the appellant’s application. On 17 December 2015 the second respondent (“Tribunal”) affirmed the delegate’s decision (“Tribunal decision”). The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. The subject of this appeal is the primary judge’s dismissal of that application on 6 May 2016. The primary judge’s judgment is published as ABV16 v Minister for Immigration & Anor [2016] FCCA 1078.

3    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“Migration Act”) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

Background

4    The appellant claimed that as a child born in Australia to parents out of wedlock, under China’s family planning laws, the appellant’s parents would be required to pay a fine or fee to register the appellant on their hukuo, household registration. The appellant’s mother pointed to official corruption in China and expressed concern that she would be subject to extortion in paying the fee. She said that she and her partner, the appellant’s father, would be unable to afford to pay the fee, and that the appellant would therefore become an unregistered ‘black child’ whose basic rights in China, including rights to social services, would be threatened on that basis (“registration claim”).

5    The appellant also claimed that he would be at risk of persecution in China for reasons of his Catholic religion, both as an extension of his mother’s Catholic religion and on the basis that he himself had been baptised. The appellant’s religious claims are not presently relevant to this appeal.

The delegate’s decision

6    The appellant’s mother appeared at the interview with the delegate on behalf of the appellant. In general, the delegate was not satisfied that the appellant’s mother presented credible claims on behalf of the appellant. Of relevance to this appeal and in relation to the registration claim, the delegate was not satisfied that the appellant would remain unregistered on return to China. The delegate considered the evidence in support of the appellant’s claim and made a finding, citing country of origin information (“COI”) published by the Refugee Review Tribunal (a predecessor of the Tribunal), that “China has a comprehensive system of birth registration which requires parents to report new children to the appropriate household registration [hukou] organ ‘within a month of their birth’”. The delegate also cited research published by the United States Department of State and the Australian Department of Foreign Affairs and Trade in the course of finding that having a child born out of wedlock attracts a social compensation fee in China, the payment of which is required before a child will be registered (“the policy”). Nevertheless, the delegate did not accept that the appellant’s parents would be unable to pay the social compensation, and, in the absence of any legal obstacle to the appellant’s registration, found it “reasonable to conclude that they would seek to register [the appellant] were they to return to China”.

The Tribunal’s decision

7    The appellant’s mother and father appeared on his behalf at the hearing before the Tribunal on 8 October 2015. They were represented at the Tribunal hearing by a migration agent who provided additional material to the Tribunal, including additional COI, on 12 November 2015.

8    In summary, in relation to the registration claim, on the basis of recent changes to the registration policies in China, the Tribunal considered that the claim was effectively “negate[d]”. The Tribunal cited two sources, an article of the Hindustan Times dated 10 December 2015 and an article of CNN online dated 11 December 2015 (“post-hearing COI”), which indicated that the Chinese policy on household registration would be relaxed and that those who were unregistered would be registered (“Chinese policy change”).

9    The Tribunal disposed of the registration claim at [66]–[70] as follows:

[66]    As is also obvious from the above country information there have been significant changes in the situation of so called "black children" in China since the hearing and the provision of post hearing material by the applicant's advisor. That change in government policy in China in effect negates the main issues that the applicant's mother put forward as to the effect of her and her partner not having married and the impact this would have on their son. That is that their son, the applicant, would be considered as a black child unless they paid a social compensation fee for him to be listed on their hukuo, and her claim they could not afford this irrespective of the amount. I have serious doubt that they would have encountered any difficulty in paying the fine, if indeed it applied to them at all given that their son was born overseas and their stated intention to marry.

[67]    The change in government policy in China relating to Black children effectively answers all of the claims associated with whether or not they have married, or will marry, and the claim of paying or not paying a fine. It now is apparent that irrespective of whether they marry or not, and irrespective of whether the policy did apply to their son in the past, it no longer does as it no longer exists. The change in policy is retrospective.

[68]    I am reasonably satisfied based on the most recent change of government policy in China announced in early December 2015, that the applicant will be able to be registered on his parents hukuo (either one, or if they marry on the family one); he will not be denied any social services including access to education and health care.

[69]    I accept that if the parents choose not to marry there may be some social stigma associated with illegitimacy, if it were to become known that they had not married. I doubt very much however that anyone would find out or be particularly interested. It is apparent they have held themselves out as a married couple in Australia at their church for many years, to the degree that Father McGee writes of them as being husband and wife, and their witness automatically assumed they were married as they have a child. In any event it is in their power to marry, they have said they will and I believe that they will in fact do so as soon as possible.

[70]    I find that the claim based in the hukuo issue and the associated black child issues is negated by the change in official Chinese government policy.

10    The Tribunal found also that the appellant did not satisfy complementary protection criteria under s 36(2)(aa) of the Migration Act (at [80]), concluding (at [81]) that the appellant did not satisfy “the criterion in s.36(2)”, before ultimately affirming (at [82]) the delegate’s decision not to grant the appellant the visa.

The primary judge's judgment

11    Before the primary judge, the appellant was unrepresented. Three grounds of review were advanced in the application below: first, that the Tribunal did not consider the claims afresh, but merely repeated the findings made by the Tribunal (differently constituted) in respect of the appellant’s mother; second, that the Tribunal did not consider independent COI; and third, that the Tribunal misunderstood the independent COI.

12    The primary judge considered the first ground to be an allegation of bias against the Tribunal, of which his Honour found no evidence. His Honour similarly found no evidence in support of the appellant’s grounds two and three. There is before me no challenge to the findings of the primary judge in response to the appellant’s application in the court below.

13    At the hearing before the primary judge, the Minister, in accordance with his obligations as a model litigant, raised for his Honour’s consideration whether the Tribunal’s reliance on the post-hearing COI, without notice to or comment from the appellant, may give rise to a failure of the Tribunal to discharge its procedural fairness obligations under s 425 of the Migration Act. The Minister nevertheless contended that the fact of the Chinese policy change was not, of itself, an issue capable of giving rise to obligations under s 425. That submission was accepted by the primary judge.

The present appeal

14    Before me, the appellant was initially unrepresented. By his notice of appeal, the appellant raised two vaguely-worded grounds of appeal which appeared to have been directed to the alleged failure of the primary judge to find that the Tribunal had not accorded procedural fairness to the appellant in relation to the registration claim. On 22 July 2016 the Minister made an interlocutory application for leave to file out of time a Notice of Contention (“leave application”). A proposed Notice of Contention (“NoC”) was annexed to an affidavit made by the Minister’s solicitor, filed in support of the leave application, and sought to agitate a further ground to dismiss the appellant’s appeal. That ground contended that the post-hearing COI “fell within [s 424A(3)(a)] of the Migration Act 1958 (Cth) and did not enliven any obligation on the part of the Tribunal under s 425(1) of that Act”. By his written outline in support of the interlocutory application, the Minister foreshadowed that the NoC raised “an important question of statutory construction which may well be before the Tribunal again”. The appeal and hearing of the leave application were listed to be heard concurrently on 3 August 2016.

15    At the hearing of 3 August, without opposition from the Minister, I gave the appellant’s father leave to appear. At that hearing the Minister emphasised the submission that the proposed NoC presented issues of some importance. It was in that context that I referred the appellant for pro bono legal assistance through the Court’s scheme under Div 4.2 of the Federal Court Rules 2011 (Cth). In anticipation of the appellant securing representation, and with the consent of the parties, I adjourned the hearing of the appeal and the leave application to a date to be fixed. On or about 15 August 2016 the appellant was assigned counsel via the Court’s scheme and soon thereafter the matter was relisted.

16    The hearing was conducted on 21 November 2016.

17    By his amended notice of appeal, which I granted leave to file at the hearing on 21 November 2016, the appellant raised the following ground of appeal (formatting in original):

1.    The primary judge erred in failing to find that the Tribunal fell into jurisdictional error by not inviting the appellant to a further hearing pursuant to section 425(1) of the Migration Act 1958 (Cth) (the Act) in respect of one or more of the following issues:

a.    whether promulgation of a policy by the Chinese government in December 2015 to permit the registration of “black children” would effectively answer the appellant's claims associated with whether or not his parents had married, or will marry, and his claim of paying or not paying a fine;

b.    whether promulgation of a policy by the Chinese government in December 2015 to permit the registration of “black children” would permit the appellant to be registered on his parents' hukuo, or one of them;

c.    whether promulgation of a policy by the Chinese government in December 2015 to permit the registration of “black children” would ensure the appellant would not be denied any social services, including access to education and health care;

d.    whether promulgation of a policy by the Chinese government in December 2015 to permit the registration of “black children” would negate the appellant's claims based on the hukuo issue;

e.    whether promulgation of a policy by the Chinese government in December 2015 to permit the registration of “black children” would negate the appellant's claims based on the “black child” issue.

Particulars

i)    The appellant made a claim that, if he and his parents were to return to China, he would be considered a “black child” and would as a result face serious harm or significant harm. The reasons for his status as a “black child” were claimed to be:

A)    he was born out of wedlock and for this reason could not be registered on his parents' hukuo (household register) or one of them unless a significant fine was paid; and

B)    his parents would not be able to pay the fine.

ii)    At the time the appellant made his application for a protection visa and as at the date of the hearing before the Tribunal, which occurred on 8 October 2015, some relevant characteristics of “black children” in China were:

A)    "black children" were not permitted to be registered on a hukuo;

B)    “black children” were denied access to social services, including to education and health care; and

C)    “black children” were discriminated against in other ways.

iii)    In December 2015, that is, after the hearing before the Tribunal, the Chinese government announced a new policy pursuant to which it would permit the registration of “black children” (New Policy).

iv)    The existence of the New Policy gave rise to the issues set out in paragraphs (a) to (e) inclusive of Ground 1. That is, those issues were issues arising in relation to the decision under review.

v)    The Tribunal made findings adverse to the appellant in relation to the issues set out in paragraphs (a) to (e) inclusive of Ground 1.

vi)    The conclusions reached by the Tribunal in relation to the issues set out in paragraphs (a) to (e) inclusive of Ground 1 were not obviously open on the material provided on behalf of the appellant, and were not open at all as at the date of the hearing before the Tribunal, and those issues were not raised with the appellant by the Tribunal at the hearing.

vii)    By virtue of particulars (v) and (vi) and section 425(1) of the Act, the Tribunal had an obligation to invite the appellant to a hearing to give evidence and present arguments relating to the issues set out in paragraphs (a) to (e) inclusive of Ground 1.

viii)    The Tribunal failed to give the appellant an invitation as described in particular (vii) above.

18    In support of that ground, the appellant filed a written outline of submissions, by which it was contended that the Chinese policy change gave rise to a new issue, or new issues, as identified at [a]–[e] of the amended notice of appeal, which in turn gave rise to an obligation under s 425(1) of the Migration Act on the part of the Tribunal to give the appellant a further invitation. That the Tribunal did not do so, it was contended, amounted to jurisdictional error.

19    In response the Minister said that the appellant identified the relevant issue or issues too narrowly. That the issues identified at [a]–[e] of the appellant’s amended notice of appeal were in truth sub-issues of the “central and determinative issue in the proceedings”, namely whether the appellant, if he were to return to China, would be an unregistered (or ‘black’) child because he was born out of wedlock. Alternatively, it was said, that even if they were issues, none were required to be identified to the appellant because none were dispositive.

Consideration

20    Section 425(1), which is subject to exceptions not presently relevant, is in the following terms:

(1)    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.

21    It was common ground that s 425 required the Tribunal to hold a hearing at which it would provide to the appellant notice of and opportunity to present material on the “issues arising in relation to the decision under review”. It was similarly uncontentious, I think, that the requirement did not operate in a once-and-for-all fashion. In other words, it was accepted that any new issues arising after the Tribunal hearing would generate new obligations on the Tribunal to hold subsequent hearings: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [100]–[103] (Besanko J).

22    In essence, the first question that falls to me for determination is whether the application of the policy to the appellant in light of the Chinese policy change gave rise to an “issue” for the purposes of s 425.

23    To make good the proposition that the requirement under s 425(1) called for “issues” to be framed at a high level of particularisation, the appellant relied primarily on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) and SZHKA (Gray, Gyles and Besanko JJ). In effect, he said that properly understood, an issue should be regarded as something which the Tribunal considers to be determinative.

24    In SZBEL, an applicant for a protection visa made a claim for protection on the basis of feared religious persecution, having become interested in Christianity. The Tribunal had rejected the visa applicant's claim on the basis of the implausibility of three aspects of his account of his conversion. Only one of those three elements was not accepted by the delegate at first instance. The Minister in that case contended that it was the credibility of the applicant’s conversion which was in issue, and not the individual aspects of the account. In a unanimous judgment, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ found (at [42]–[43]) that the issues should have been identified at a higher level of granularity than the more broadly-framed issue of the applicant’s credibility, for which the Minister had contended.

25    SZHKA concerned the duty of a Tribunal to hold a further hearing upon the remittal of a quashed decision following judicial review. Gray J (with whom Gyles J agreed) found in favour of the visa applicants’ primary submission that s 425(1) generated an obligation on the Tribunal to hold a hearing before each exercise of its decision-making function. Gray J summarised the principles falling from SZBEL as follows (at [7]) (emphasis added):

… First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes…

26    Besanko J, did not join in the majority’s holding that the s 425(1) obligation arose in every case, however found on the facts that new issues had arisen to re-engage the section. He said this at [115] (emphasis added):

The second question is that the matter be substantial enough to constitute an issue. That depends, obviously enough, on the interpretation of the word issues in s 425(1). On a narrow interpretation, issues might be defined only as the main elements of an applicant's claim. I do not think that such a narrow interpretation would be correct. In SZBEL 228 CLR 152, the High Court said that the reasons given by a delegate for refusing to grant an application identify the issues that arise in relation to that decision. Matters much more specific than the main elements might become issues in relation to a delegate's decision by virtue of the delegate's reasons. Equally, matters much more specific than the main elements, which the Tribunal considers to be in question irrespective of the delegate's reasons, may constitute issues arising in relation to the decision under review within s 425(1). In my view, issues, relevantly, are all matters not of an insubstantial nature which the Tribunal considers to be in question.

27    I recently considered and applied those authorities, to the extent that they related to the content of procedural fairness obligations, in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530. While that case was not concerned with the proper construction of “issues” in s 425(1), I drew upon the reasoning in those authorities to inform my determination in relation to the identification of issues in relation to procedural fairness obligations at common law. There, I noted (at [161]), by reference to the judgment of Mason J in Kioa v West (1985) 159 CLR 550 at 587, the need for a decision-maker to bring to an applicant’s attention “the critical issue or factor on which the administrative decision is likely to turn” and (at [162]) that “the guiding principle is one of fairness”: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [28] (Allsop J, with whom Gyles and Conti JJ agreed on this point). Further, I observed (at [166]) that the purpose of the imposition of the obligation to accord procedural fairness is the avoidance of a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 (Gleeson CJ). On that basis, and on the basis of the relevant reasoning in SZBEL and SZHKA, I rejected the Minister’s contention in that case that the requirement to give notice of the issues was discharged at a high level of generality. I there found (at [162]) that “the critical issues to be considered … by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond”: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J).

28    I shall adopt the same approach in the present case to the construction of s 425(1).

29    The Minister, in oral argument, embraced the approach I have just outlined. He nevertheless contended that the “issue” in the present case should instead be framed as “whether the appellant, if he were to return to China, would be an unregistered or black child because he was born out of wedlock and thus not have access to healthcare and education services”. That being an issue of which the appellant was on notice.

30    I am unable to accept the Minister’s submission. The formulation of the relevant issue at such a level of generality overlooks, or fails to capture, the number of variables within it which could, depending on the evidence before the Tribunal, become critical or determinative. Each of the elements of the Minister’s proposed “issue” could, for a variety of reasons, prove to be determinative in a judgment as to whether the appellant may or may not become an unregistered ‘black child’ and face discrimination on return to China. For instance, had the Tribunal had reason to believe that the appellant’s parents were in fact married at the time of his birth, that factor would have been sufficient to defeat the claim. It follows, on the Minister’s characterisation of the issue, and putting to one side any parallel requirement under s 424A, that had an anonymous tip provided the appellant’s parents’ marriage certificate to the Tribunal following the hearing, the Tribunal would have no obligation under s 425(1) to give notice to the appellant that his parents’ marital status at the time of his birth was now in issue, even in circumstances where it had conducted the hearing on the acceptance that the appellants’ parents were, at that time, unmarried. That scenario clearly betrays an unfairness that s 425(1) was intended to prevent.

31    That scenario is this case. Having conducted a hearing on the basis that the Chinese government had a policy by which there were barriers to the registration of ‘black children’, and having on that basis (and fairly at the time of the hearing) invited no evidence or submissions on the status of that policy or its application to the appellant, the Tribunal came into knowledge that the policy was no longer in force. It was on that basis that the Tribunal found against the appellant. In the absence of countervailing circumstances, the Tribunal was obliged by s 425(1) to give notice to the appellant that the status of the policy was now in issue, and to invite the appellant to present evidence and make submissions at a hearing. Having not done so rendered hollow, and not meaningful, whatever opportunity to respond that had been provided by the Tribunal through the holding of the first hearing. The denial resulted in a practical injustice to the appellant.

32    In the present case the Minister submitted, in the alternative to his primary submission, that any issue arising from the Chinese policy change was not dispositive, because the Tribunal found in any event that the appellant’s parents would have been able to pay the registration fee. I will consider that submission in more detail below. The Minister relied on the submission to say that even if a more narrowly-framed issue were to be accepted, there should nevertheless be no obligation on the Tribunal to give notice of the issue, as it was not dispositive. However, I think the Minister’s submission, fairly understood, was not that the issue of the Chinese policy change was not dispositive, but rather that the Tribunal had an alternative basis for its decision. In fact, what this submission is really saying is that each of the bases for the decision was capable of being determinative. Whether the Tribunal had found that the policy requiring payment of a registration fee no longer applied, or that the appellants’ parents would pay the fee, either was sufficient to defeat the appellant’s registration claim. Given that each of those potentially determinative bases fall within the “issue” proposed by the Minister, to my mind, the alternative submission only serves to reinforce my conclusion that the Minister’s formulation was framed too broadly.

33    I hold therefore that the application of the policy of the Chinese government to the appellant was an “issue” giving rise to a prima facie obligation on the Tribunal to hear the appellant. It is not necessary that I consider each of the more highly particularised “issues” proposed by the appellant.

34    As I have already indicated, the Minister submitted, in the alternative, that the Tribunal made an independent finding, or independent findings, sufficient to dispose of the appellant’s claims. Namely, those findings included that the appellant’s parents would, in any event, have been able to pay the fee to register the appellant (at [66]), that nobody would be interested in whether the appellant’s parents were unmarried and, in any event, that the appellant’s parents would have married “as soon as possible” (at [69]). The Minister relied for this contention on the Tribunal’s reasoning at [67]–[70], which is extracted in full above at [9].

35    In reading those paragraphs of the Tribunal’s decision, I have attempted to give them a “beneficial construction”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Nevertheless I do not consider that any findings of the sort contended for by the Minister were ever made by the Tribunal.

36    At [66], the Tribunal said “I have serious doubt that [the appellant’s parents] would have encountered any difficulty in paying the fine”. The words “serious doubt”, to me, connote a sense of non-finality. As does the conditional form of the verb “would have encountered”. I accept that those words could, in certain circumstances, and where the surrounding context demanded, indicate a finding. However, [66]–[70] provide no such context.

37    I am not be satisfied that the words, as they appear at [66], do anything more than raise the contemplative likelihood that if the Tribunal had to determine the question, the appellant would not necessarily succeed. They appear to be indicative, and not final. This is especially so given that more definitive language appears in relation to related questions: “I am reasonably satisfied” ([68]); “I accept”, “I believe” ([69]); and “I find” ([70]). Elsewhere in the decision the member says expressly “I find” in relation to a number of the Tribunal’s conclusions: see [72], [77], and [79].

38    I have less difficulty with the Minister’s contention that the Tribunal found that the appellant’s parents would marry “as soon as possible”. The full passage reads: “In any event, it is in their power to marry, they have said they will and I believe that they will in fact do so as soon as possible”. To me, the words “I believe” are sufficient to indicate a finding. However, even if I were to accept that the sentence does constitute a finding, it, and [69] more generally, appears to relate to the appellant’s claim that he would face “social stigma” in China on account of being illegitimate, and not to the registration claim. It is difficult to see how any finding in relation to the appellant’s parents’ intention to marry in the future could have any bearing on the registration claim, which relies on the fact of the appellant having been born out of wedlock (a fact which did not appear to have been in issue before the Tribunal).

39    The Minister also sought to contend that where the Tribunal said at [69] that “I doubt very much however that anyone would find out or be particularly interested” that the appellant’s parents had not married, it was making a finding sufficient to defeat the registration claim. I have doubts about whether that observation of the Tribunal was directed to the registration claim. It follows immediately from the introduction of the claim of facing social stigma. In any event, for the same reasons that I found the words “I have serious doubt” to not disclose a finding, I also find that the words “I doubt very much” are merely indicative and do not disclose any finding of the Tribunal.

40    The Minister’s contention that there was an independent basis for the Tribunal’s adverse finding in relation to the registration claim is not made out.

The Notice of Contention

41    At the hearing on 21 November, I granted leave to the Minister to file and rely upon the NoC. Despite having that leave, for reasons not clear to me, the Minister never filed the NoC. Nevertheless, I will treat the proposed NoC annexed to the affidavit of the Minister’s solicitor dated 21 July 2016 as though it had been properly filed, and will consider it as having been pressed. The hearing was conducted on the basis that the NoC was relied upon. The appellant had notice of it and had prepared his case accordingly.

42    The NoC contained an additional contention by which I was invited to dismiss the appeal in the following terms:

The country information referred to at [66]-[68] and [70] in the decision of the second respondent (Tribunal) fell within [s 424A(3)(a)] of the Migration Act 1958 (Cth) and did not enliven any obligation on the part of the Tribunal under s 425(1) of that Act.

43    In support of that contention, the Minister advanced three points. First, that to find that the post-hearing COI gave rise to a hearing obligation under s 425(1) would undermine the purpose of s 424A(3)(a). Second, that to discharge its obligation under s 425(1), the Tribunal would have had to have provided sufficient particulars in relation to the Chinese policy change that it would, in essence, have provided the particulars of the post-hearing COI. To require the Tribunal to do so, it was said, would cut across the exception provided by s 424A(3)(a) to render it superfluous. And third, that to require the Tribunal to hold a further hearing would impermissibly import the obligations under s 424A into s 425(1).

44    Section 424A provides relevantly as follows:

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.

…

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

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

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non-disclosable information.

…

45    The Minister’s first point in support of the NoC invokes the purpose of s 424A(3)(a), however when I asked the Minister what that purpose was, he was unable to point to any particular mischief the section had been designed to remedy. It was made clear by the High Court in Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) that s 424A(3)(a) had the effect of reducing the content of the Tribunal’s statutory procedural fairness obligation in relation to COI to a level below that of the common law. However, I doubt that that could be said to be an end of the provision in itself.

46    Section 424A(3)(a) is cast as an exception to the requirement in s 424A(1) that the Tribunal provide particulars of information that is adverse to a visa applicant’s case. It is not immediately clear from the terms of the provision why it should provide any additional exception to the obligation in s 425(1) to provide a hearing in relation to the issues, as contended for by the Minister’s NoC. It was uncontentious that there is a distinction between the evidence relating to an issue and the issue itself: SZHKA at [103].

47    I see no reason why the effect of s 425(1) ought to be constrained by s 424A(3)(a). The two provisions are concerned with different subjects and have an operation that is independent of one another.

48    I nevertheless accept that, in certain circumstances, both the issues and the evidence relating to the issues may overlap where they arise from the same source. Further, it is true, as the Minister said, that s 424A does not distinguish between information of a specific and general nature. However I do not accept the contention that the mere mention of the Chinese policy change by the Tribunal would necessarily engage the terms of s 424A. Before it was ever a particular of a CNN report, the Chinese policy change existed in the world as its own freestanding fact capable of forming the basis of an issue for the purposes of s 425(1). That it was reported, and hence came within the ostensible scope of s 424A(3)(a), cannot subsequently deprive it of that character.

49    In the present case, the Tribunal may have satisfied its s 425(1) obligation by holding a subsequent hearing at which the Tribunal told the appellant that it may form a view that the policy no longer applies to the appellant. I find it to be a manifestly unattractive proposition that disclosure in such limited terms could offend s 424A(3)(a) simply because that information had been reported in some COI. The logical extension of the Minister’s argument in this regard would be to excuse the Tribunal of its obligation to provide a hearing in relation to any issue arising solely from the general conditions in the country of origin, as reported in the COI. I cannot accept that proposition.

50    In support of his third argument under the NoC, that it is impermissible to import into s 425(1) the requirements of s 424A(1), the Minister relied on the decision of the Full Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 (Emmett, Weinberg and Lander JJ). At [88] their Honours said:

The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.

51    However that case was concerned with a complaint that the Tribunal had not identified with sufficient particularity the significance of the questions put to the appellant. It was implicit in their Honours’ reasoning that the asking of questions, framed generally, was sufficient to put the visa applicant on notice of the issue and discharge its s 425(1) obligation. No complaint of that sort can be made in the present appeal because no questions on the subject of the ongoing applicability of the Chinese policy were asked by the Tribunal. To the extent that their Honours’ reasoning demands a separation of the obligations in ss 424A and 425, I would respectfully agree, and say that that reasoning only serves to underscore the conclusion I have already reached that in most, if not all, cases the obligation generated by s 425(1) can be satisfied without reference to the particulars of any COI.

52    The Minister also relied upon recent Federal Court authority to support the proposition put in the NoC. There is not much assistance to be found in either ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 (Gilmour J) or BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 (Bromwich J). In neither case were their Honours required to squarely confront the question of any conflict between the two provisions. In BEV15, Bromwich J observed at [57] that the obiter observation made in ACC15, upon which the Minister here relied, may be specific to the facts of that case and (at [58]) that it was unnecessary for the interaction between ss 424A(3)(a) and 425(1) to be resolved in BEV15.

53    While I do not consider it strictly necessary to decide, in my view, to the extent that there is any conflict between s 424A(3)(a) and s 425(1), the terms of the Migration Act dictate that the s 425 requirement to hear a visa applicant in relation to all of the issues in the proceeding must prevail.

54    To arrive at that conclusion I have taken into account the statement of principle of McHugh, Gummow, Kirby and Hayne JJ at [70] of Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, where their Honours said (footnotes omitted, emphasis added):

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

55    As between s 425(1) and s 424A(3), I consider s 425(1) to be the leading provision and s 424A(3) to be subordinate. Section 425(1) is the centrepiece of Div 4 of Part 7 of the Migration Act’s exhaustive scheme of procedural fairness (s 422B) in relation to applications for review before the Tribunal. It is the only provision which provides a visa applicant with the opportunity to appear and present material on all of the matters the subject of the review. By contrast, any opportunity to present material provided by s 424A is limited to that information which the Tribunal has identified as being adverse to the visa applicant.

56    Moreover, the terms of the provisions themselves are instructive and reinforce my conclusion that s 425(1) leads s 424A(3). Section 425(1) is framed mandatorily, such that the Tribunal must invite the applicant to appear. By contrast, s 424A(3)(a) contains no mandatory prohibition on the Tribunal providing notice of adverse COI. Rather the provision merely relieves the Tribunal of any positive obligation to provide such notice under s 424A(1).

57    Furthermore, the construction I prefer better facilitates the objective inherent in s 422B(3) of having the terms of Div 4 of Pt 7 applied “in a way that is just and fair”.

58    The consequence is that if in order to give a visa applicant a meaningful opportunity to address the issues under review it becomes necessary to identify the particulars of the information which founds a given issue, then, according to the terms of s 425(1), the Tribunal must do so.

Conclusion

59    I have found that the Chinese policy change gave rise to a new issue for the purposes of s 425(1). There was no independent basis upon which the Tribunal disposed of the registration claim which may have relieved the Tribunal of its obligation under that section. Nor did the terms of s 424A(3)(a) provide any relief to the Tribunal. It was obliged to invite the appellant to a further hearing in relation to the new issue. That the Tribunal did not so invite the appellant amounted to a failure of the Tribunal to perform its statutory duty and necessarily amounted to a jurisdictional error. The primary judge erred in not so finding. Accordingly, I will make orders that the appeal be allowed and will remit the matter to the Tribunal for determination according to law.

60    Each party made brief submissions that they should receive their costs in the matter. I take those submissions to be the parties’ acceptance that costs should follow the event. The appellant also made a submission that it should receive its costs of the proceeding below. The Minister made no submission in response, and I am not aware of any reason why I should not also order the Minister to pay the appellant’s costs on the application before the primary judge given that I will allow the appeal. I will therefore set aside the costs order in the court below, and order that the Minister pay the appellant’s costs in that proceeding.

61    Finally, I would take the opportunity to commend counsel and their instructors on both sides for their conduct in this proceeding. On the side of the Minister for having identified and brought to the attention of the Federal Circuit Court a point that has ultimately proved adverse to his case, and for having consented to an adjournment of the appeal to allow time for the appellant to secure legal representation. And on the side of the appellant, for their provision of high quality pro bono legal assistance to the appellant which accords with the best traditions of the legal profession.

Associate:    

Dated:    2 March 2017