No duty to inquire
26 As the plurality emphasised in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 ("SZIAI") at [25], the tribunal's duty is to review the Minister's decision. To that end it may seek further information it considers relevant, including by inviting a person to give additional information (s 424). It may require the Secretary to arrange for an investigation or a medical examination (s 427). Generally speaking, however, it has no duty to do either: See, too, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 ("SZGUR") at [22] (French CJ and Kiefel J).
27 In SZIAI the plurality went on to observe (at [25]):
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
(Footnote omitted.)
28 These somewhat cautious remarks indicate that the circumstances in which a duty will arise and jurisdictional error will result from a failure to discharge it, are likely to be "rare and exceptional" (Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 ("Le") at [60] per Kenny J).
29 The Minister's position in this case is that the primary judge erred in finding that the tribunal's failure to inquire into SZRTF's statement about her second pregnancy was a jurisdictional error of the kind that SZIAI acknowledged might exist. In short, the Minister argued that there was no obvious inquiry the tribunal could have made, that the second pregnancy was not a critical fact of the kind contemplated in SZIAI and, in any case, its existence was not easily ascertained. He emphasised that the fact that it might have been reasonable to make an inquiry does not mean that the failure to do so amounts to a jurisdictional error (SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 per Bennett J at [30]).
30 Before SZIAI this court had held that an unreasonable failure to ascertain relevant facts which the decision-maker knows to be readily available might amount to an improper exercise of power within the meaning of that expression in the Administrative Decisions (Judicial Review) Act 1977 (Cth): Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 per Wilcox J at 169-70. Cf. Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178 per Toohey J; Luu v Renevier (1989) 91 ALR 39 at 47-50). As Wilcox J put it in Prasad at 169-170:
The circumstances under which a decision will be invalid for failure to inquire are … strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make the inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made … to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.
(Emphasis added.)
31 Similarly, in Le Kenny J held (at [60]) that "in certain rare or exceptional circumstances", the failure of the tribunal to inquire might amount to jurisdictional error "because the failure may render the ensuing decision manifestly unreasonable in the [Wednesbury sense]", that is to say, so unreasonable that no reasonable decision-maker could ever have made it (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 at 230 per Lord Greene MR). In SZIAI the plurality appear to have accepted that the failure to make such an inquiry could be Wednesbury unreasonable. In their submissions the respondents referred to other cases, such as Le, in which a failure to make inquiries was found to be unreasonable in the Wednesbury sense. But the respondents did not put their case in this way and the notice of contention does not seek to support the decision of the primary judge on such a basis. Nothing may turn on this, however. In either case, it would be necessary (at least) that the fact causing for the inquiry be "critical", the inquiry "obvious" and the evidence "easily ascertained" (SZIAI at [25]).
32 The Minister submitted that there was no obvious inquiry that could have been made. He argued that merely because the tribunal could have asked for a statement from a medical practitioner about the outcome of a pregnancy test (as the primary judge said) does not mean that it falls into jurisdictional error if it does not. That is true, but at this stage of the inquiry, the question is not whether there has been jurisdictional error, but whether there was an obvious inquiry to be made. I am not persuaded that the primary judge erred in deciding that there was an obvious inquiry, although I am not convinced that the inquiry his Honour suggested was necessarily the right one. No evidence was ever adduced that the pregnancy had been confirmed by a doctor.
33 The Minister submitted that to say how the inquiry could have been made does not answer how it was obvious. That may be so, too, but it was a relevant consideration. The Minister also pointed out that the respondents did not identify the particular inquiry that should have been undertaken. There was, indeed, no real indication, let alone evidence, as to the stage the alleged pregnancy had reached. Nor, as the primary judge, himself, noted (assuming that the pregnancy was in its early stages) was there any evidence about the reliability of alternative tests or inquiries at that stage (whatever it might have been). But in the circumstances of this case the Minister's point is disingenuous. The inquiry was obvious. What information the inquiry might have generated is another matter. As the primary judge put it, SZRTF was either pregnant or she was not. A report from a medical practitioner would have sealed the matter. Absent visible signs of pregnancy, the obvious inquiry was to seek confirmation from a doctor. The tribunal could have asked SZRTF to provide a medical report. The question is whether it was duty-bound to do so. Alternatively, it had the power under s 427(1)(d) of the Migration Act (and perhaps also under s 60) to require the Secretary to arrange for a medical examination, although, for some unexplained reason, her counsel eschewed reliance on the section in the court below. I note, however, that SZRTF would not have been obliged to attend such an examination (SZGUR per Gummow J at [87]). There was no evidence to indicate that she had offered or was willing to do so.
34 The Minister also argued that his Honour's statement that a pregnancy test would have been readily available contradicted his earlier remark that there was no evidence demonstrating the reliability of alternative tests. There is certainly a tension between the two statements but at each point his Honour was addressing a different question.
35 I am not satisfied that his Honour erred in finding that information about the pregnancy (assuming there was in fact a pregnancy) would have been readily available.
36 The more difficult question is whether the further pregnancy was a critical fact.
37 In SZIAI the High Court did not explain what it meant by a "critical fact".
38 Before SZIAI, Wilcox J's statement in Prasad that the further inquiries must be "centrally relevant to the decision to be made" was cited with approval in a number of cases. At least two commentators have equated "centrally relevant" with "critical": Mark Smyth, "Inquisitorial Adjudication: The Duty to Inquire in Merits Review Tribunals" (2010) 34 Melb UL Rev 230; Matthew Groves, "The Duty to Inquire in Tribunal Proceedings" (2011) 33 Syd Law Rev 177 ("Groves"). This Court also appears to have treated the expressions as synonyms, notwithstanding the High Court's preference for a different term. See, for example, Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 ("Dhanoa"); Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 (Edmonds J).
39 It is not always easy to say what information will be critical. Each case will turn on its own facts. But information will not be critical or centrally relevant if it would have made no difference to the outcome (Dhanoa at [50] per Jagot and Foster JJ). Here, it is impossible to say that the information would have made no difference. The claim of religious persecution aside, the factual premise for all the tribunal's conclusions was that she had one child out of wedlock. But the fact that the information would not have made no difference to the outcome does not make it critical.
40 In the relevant sense "critical" means "of decisive importance with respect to the outcome; crucial" (Macquarie Dictionary online) (cf. "tending to determine or decide; decisive, crucial": Oxford English Dictionary on-line). Professor Groves pointed out in 2011 that "no case has gone so far as to suggest that information must be decisive to the ultimate issue" (Groves at 202) and I was taken to none since then. Still, it seems to me that for a fact to be critical it must at least be decisive of, or crucially important to an anterior issue which provides "a sufficient link" to the outcome of the review. That is not the case here. At best for the respondents, all the inquiry would have achieved is confirmation of the pregnancy. At worst, it would have shown that SZRTF was mistaken or dishonest. Even if the inquiry had confirmed the pregnancy, numerous other questions remained to be decided before the tribunal could be satisfied that the respondents were entitled to protection visas.
41 Information could be critical if it tended to undermine the tribunal's understanding of the applicant's account, such as in Le, where a mistranslation of a statement by the visa applicant's husband and sponsor "meant that the significance of the primary decision-maker's decision record and the typed notes of interview was doubtful or uncertain in a number of critical respects" ([76]). That, however, is not this case.
42 In Prasad the Minister had refused an application for a permanent entry permit to a Fijian citizen who was married to a holder of such a permit because the Minister considered (based on advice supplied by the investigating Departmental case officers) that the marriage was not genuine. The Minister had a policy of refusing permanent entry permits in such cases. Eight statutory declarations were furnished to the Department on the applicant's behalf and were available to the Minister and the Immigration Review Panel. Three of the declarants claimed to live in the same block of flats as the Prasads, three claimed to have visited them there and to have received them, visiting together, in their own home and one claimed to have seen them together on a recurring basis at the football. Their evidence therefore went to "a matter of central relevance" - whether Mr and Mrs Prasad were living together as a married couple. Yet, no comment was sought on this material and the members of the Panel did not ask themselves "the obvious question whether the content of the declarations called in question the reliability of the officers' views" ([166]). Unsurprisingly, Wilcox J held that the Minister was bound to take the declarations into account.
43 In Videto Toohey J held that the decision-maker was required to inquire into the nature of the applicant's relationship with his son where this was a ground for the granting of a temporary entry permit on humanitarian grounds.
44 These cases are readily distinguishable. So, too, is Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241; [2009] FCA 1247 upon which the respondents relied.
45 According to SZRTF's statement, the newly acquired knowledge of the pregnancy increased her anxiety. There might have been a number of possible explanations for this. But it is reasonable to infer from the context that she was signalling to the tribunal that the new pregnancy increased her fear of persecution in China as a consequence of the enforcement of Chinese family planning laws. Her statement was plainly relevant. Relevance alone, however, is not enough and, ultimately, this was the reason the primary judge found the fact to be critical. That is apparent from what he said at [65]:
In my view, the fact of whether [SZRTF] was pregnant again was critical to the review. Although the Tribunal had found that the Chinese one child laws were laws of general application, it also had to consider whether they would be applied in the discriminatory fashion. The question of multiple pregnancies was relevant to that enquiry. Further, the question of multiple pregnancies bore on the assessment of the complementary protection criterion.
46 It seems to me that this finding is inconsistent with what the primary judge said earlier in relation to the first ground of the show cause application, describing the "new claim" as "incidental" to the claims already dealt with at the hearing and which did not require a further hearing opportunity. It is difficult to see how a fact can be both critical to the review so as to require the tribunal to undertake its own inquiries and at the same time merely incidental to the claims the tribunal had already dealt with so as to excuse it from providing the opportunity for a further hearing.
47 In SZIAI the relevant issue was whether the tribunal had committed jurisdictional error by not making its own inquiries into an allegation that certificates submitted by the appellant as evidence were forgeries. The High Court found that there was no jurisdictional error by reason of the tribunal's failure to inquire. One of the reasons the plurality came to this conclusion was that there was nothing on the record to indicate that any further inquiry by the tribunal directed to the authenticity of the certificates could have yielded a useful result (at [26]). In other words, there was no material to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of the decision. And so it is here.
48 Furthermore, there is no reason why, if evidence to support the pregnancy was available, SZRTF, herself, could not have supplied it. It was for her to provide the evidence in support of her claim.
49 For all these reasons, I am unable to accept that the pregnancy was a critical fact providing a sufficient link to the outcome as to amount to a failure to review. In my view, the primary judge erred in concluding that the tribunal fell into jurisdictional error by failing to inquire into the pregnancy.