Application of authorities
50 Although the transcript of the interview became the focus of the Minister's argument at the hearing of the appeal, the Court's analysis must begin with what the reasons reveal about the Tribunal's decision. The fundamental difficulty in this case is that there is no reference in the Tribunal's reasons to any material on which it based its finding that none of the first respondent's answers were "correct" and the first respondent therefore knew "almost nothing" about Falun Gong belief. Taking the Tribunal's reasons on their face, it appears that the Tribunal arbitrarily decided the first respondent's answers were "wrong" without any logical basis to do so. Had there been any "evidence or . . . other material" on which the Tribunal's finding regarding the first respondent's knowledge was based, the Tribunal, aware of its obligations under s 430(1)(d), would presumably have referred to it. The inference arises that the Tribunal's decision was not based on findings or inferences of fact grounded upon probative material and logical grounds. The question is whether the Court should draw this inference, or the contrary inference that the Tribunal's finding was logically based on probative material to which it has not referred in the reasons.
51 The former inference (i.e., as to the absence of probative material or logical grounds) arises squarely from the principle enunciated in Yusuf that reasons are prepared in the context of s 430 and must be read in light of that section's requirements. However, a comment of Gleeson CJ in Yusuf raises the questions whether a reviewing court should always draw this inference in circumstances like the present and, if not, when should the court draw the other inference. Gleeson CJ's comment was that "[t]here may be cases where it is proper to conclude that the Tribunal has not set out all its findings" (206 CLR at 332 [10]), without indicating what factors might distinguish such cases. The same reasoning would indicate that there may be cases where it is proper to conclude that the Tribunal has not referred to the evidence on which its findings were based (though the Tribunal had such evidence). His Honour noted that it was not suggested in the matters before the Court then that the Tribunal had made a finding which it failed to set out, adding that the consequences of such a failure were not in issue.
52 In their joint judgment, McHugh, Gummow and Hayne JJ did not directly address the possibility raised by Gleeson CJ. Their Honours' reasons indicate, however, that a reviewing court should be wary of inferring lightly that the Tribunal has made a finding that it has not set out: see Yusuf 206 CLR at 346 [68]-[69]) (or, relevantly in the present case, has relied on unknown evidence or other material to which it has not referred). Their Honours emphasized that the purpose of s 430 was to ensure that an aggrieved party can identify with "certainty" why the Tribunal decided as it did, and that a reviewing court is informed of the same thing. Similarly, although Gaudron J did not address Gleeson CJ's suggestion directly, her Honour's reasons discuss the inference to be drawn in terms that would not appear to allow for variation. Gaudron J explained that "if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material": see 206 CLR at 338 [37] (emphasis added).
53 In the specific context of s 430(1)(d), this Court said in Minister for Immigration and Multicultural Affairs v Gutierrez (1999) 92 FCR 296 that "[t]he purpose of s 430(1)(d) is to arm the reader of the decision with an understanding of the steps by which the Tribunal reached its decision" (at 300 [13] per North J). See also Li 176 ALR at 75 [44] in which the Full Court observed that one of the purposes of s 430(1)(d) was to "expose[ ] . . . error".
54 The Court's function is, of course, to review decisions for jurisdictional error, and not to review reasons. There may be cases where what appears on the face of the Tribunal's reasons to be a jurisdictional error is shown by the record before the reviewing court to be merely a failure to comply with s 430. Such a failure does not constitute jurisdictional error. In the case of a failure to comply with s 430, the appropriate course for an aggrieved applicant is to seek an order compelling the Tribunal to comply with its obligations under s 430. The ensuing written statement may or may not reveal jurisdictional error: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 ('Ex parte Palme') at 224-25 [41]-[46] per Gleeson CJ, Gummow and Heydon JJ; and Kennedy v Australian Fisheries Management Authority (2009) 182 FCR 411 at 435 [70] per Tracey J.
55 In a case such as the present, it will always be possible to speculate that the Tribunal has relied on absent and unidentified probative material, but it will rarely be possible to establish that fact with any degree of confidence. In the ordinary course of things, a reviewing court is bound to consider, consistently with s 430, that what purports to be the Tribunal's written statement under s 430 sets out what were in fact the reasons for the Tribunal reaching the decision set forth in that statement; the findings set out therein are the findings the Tribunal actually made and considered material to its decision; and the evidence and other material referred to therein is in fact the evidence and material on which the Tribunal based those findings. To do otherwise would transform judicial review into an exercise in divination of the sort s 430 was designed to avoid. Considering the function of s 430, a reviewing court should not depart from this approach unless there is a sound reason to do so. I conclude that there is no such reason here.
56 Before explaining why I have reached this conclusion, I note that the circumstances of the present case should not be confused with the situation in which there has been a total failure to give reasons, such as that considered by the High Court in Ex parte Palme. In Ex parte Palme, the Minister cancelled the visa held by a German citizen (the prosecutor) pursuant to s 501(2) of the Migration Act (which empowers the Minister to cancel a person's visa where "the Minister reasonably suspects that the person does not pass the character test" and "the person does not satisfy the Minister that the person passes the character test"), but failed to provide a written notice "set[ting] out the reasons . . . for the decision" as required by s 501G(1)(e) of the Act. Under the circumstances of the case, it was open to the Minister reasonably to suspect that the prosecutor did not pass the character test in light of s 501(6) and (7) of the Act, because the prosecutor had pleaded guilty to murder in 1992 and been sentenced to a term of sixteen years imprisonment. The statement provided by the Minister was described in the concurring reasons of McHugh J (216 CLR at 227 [54]):
What [the Minister] provided to the prosecutor did not constitute "reasons" for the purpose of s 501G(1)(e). What the Minister did was to provide the prosecutor with a copy of the Departmental brief to the Minister discussing the issues in the case neutrally. The brief did not argue for any particular conclusion. It also contained an attachment that listed the options open to the Minister. One option was to cancel the visa. The Minister took that option, which he indicated by crossing out the other options. The copy sent to the prosecutor showed that the Minister had exercised this option and cancelled the visa. But it is impossible to deduce from the selection of the option and the brief's discussion of the issues, what were the Minister's reasons for cancelling the visa.
57 Gleeson CJ, Gummow and Heydon JJ accepted (at 224 [40]) that the Minister had failed to "set[ ] out the reasons" for his decision. Their Honours concluded, however, that it was not open to infer from Minister's failure to provide reasons that he lacked any reason for his decision (216 CLR at 223-24 [39]):
It was decided by this court in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd, where an order for prohibition under s 75(v) of the Constitution was made, that the "inadequacy" of the material on which the decision-maker acted may support the inference that the decision-maker had applied the wrong test or was not "in reality" satisfied of the requisite matters. Given the detail supplied in the [Departmental brief] (including the annexures) and the statement by the Minister set out above, and not challenged, that he had considered all relevant matters, the decision in Melbourne Stevedoring is of no assistance to the prosecutor. Nor, for the same reasons, is the statement by Gibbs CJ in Public Service Board (NSW) v Osmond, made with reference to Padfield v Minister of Agriculture, Fisheries and Food, that "if the decision-maker does not give any reason for his decision, the court may be able to infer that he had no good reason". That inference is not open here. (Citations omitted)
58 Ex parte Palme does not compel the conclusion by analogy that this Court cannot infer that the Tribunal here lacked evidence or other probative material against which to evaluate the first respondent's knowledge. Their Honours did not suggest that inferences of the type discussed in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 120 or Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 663-4 (referring to Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053) would never be appropriate. Rather, their Honours' conclusion was based on the nature of the particular material before the Minister on that occasion. In light of the detail of the Departmental brief, the proper inference was not that the Minister had no reasons for his decision but that he must have had reasons, which he had failed to state. The potential inference that the Tribunal's finding must have been based on probative material does not have the same force here, because there is no relevant probative material mentioned in the Tribunal's written statement under s 430. Nor is there probative material disclosed in the record equivalent to the Departmental brief in Ex parte Palme that is capable of supporting the Tribunal's finding.
59 Further, there was a complete failure to give reasons in Ex parte Palme rather than the provision of reasons deficient in one aspect (i.e., a failure to refer to the evidence on which the decision-maker's key finding was based), as would be the case here on the Minister's analysis. In essence, the Minister in Ex parte Palme provided a record of the decision "present[ing] an inscrutable face" under a statutory regime where, consistent with the importance of certainty in reasons for decision-making, such impenetrable decisions were not permitted. The Tribunal here has provided a written statement of reasons which to all appearances complies with s 430. These reasons indicate why the Tribunal decided as it did: that is, because it did not consider the first respondents' answers correct, it concluded that he lacked knowledge of Falun Gong and was not a Falun Gong adherent. The reasons refer to evidence, though, on its face, none of that evidence appears capable of falsifying answers to questions about Falun Gong belief. These are the circumstances in which the possible inference of jurisdictional error arises here. The circumstances of Ex parte Palme are not equivalent.
60 Ultimately, as noted earlier, the choice here is between an inference that material to which the Tribunal did not refer and which does not appear in the record was not part of the material on which the Tribunal based its finding regarding the first respondent's knowledge, and an inference that unidentified material, not mentioned in the Tribunal's written statement and not in the record, provided a basis for the Tribunal's finding. Having regard to s 430, the first inference is self-evidently stronger than the second, notwithstanding that counsel for the Minister argued for acceptance of the second inference.
61 Counsel for the Minister submitted that sufficient information could be gleaned from the transcript to conclude that the reference to "my text" (see [12]-[13] above and [63] below) provided a rational foundation for the Tribunal's evaluation of the first respondent's knowledge, and the Court should therefore conclude that there was no jurisdictional error by the Tribunal. Counsel pointed to four factors in the transcript, which, so he argued, indicated that the unidentified text provided a rational basis for the Tribunal's determination. Essentially, counsel encouraged the Court to engage in a rather convoluted process of divination to "fill in" the absent rational basis for the Tribunal's finding.
62 Foremost among the factors on which the Minister's counsel relied was counsel's assertion that the unnamed text was written by Li Hongzhi, who was, so counsel said, held by Falun Gong practitioners to be the authority on Falun Gong doctrine; and, further, so counsel said, the first respondent's answers indicated that he, at least, regarded Li Hongzhi as authoritative. Therefore, so counsel argued, although it was not possible to determine precisely what material the Tribunal relied on in finding that the first respondent lacked knowledge of Falun Gong, it might be inferred that the Tribunal relied on a text by a person accepted as authoritative by the first respondent and Falun Gong adherents. Therefore, so counsel submitted, the Tribunal's evaluation of the first respondent's answers had a rational foundation, and to consider whether the evaluation was correct in light of that foundation was to engage in merits review.
63 A fundamental difficulty with this argument is that the transcript does not in fact say that Li Hongzhi was the author of the text mentioned by the Tribunal during the questioning of the first respondent. Counsel's argument was based on two appearances of the phrase "Li Hong Zhi says" in the transcript:
TRIBUNAL MEMBER: What colour is the Falun?
APPLICANT: It is red and black.
TRIBUNAL MEMBER: Li Hong Zhi says it's yellow.
. . . .
TRIBUNAL MEMBER: What does Li Hong Zhi say is the top priority of the practitioner?
APPLICANT: To attain a level, various level of attainment.
TRIBUNAL MEMBER: According to my text the top priority of a Falun Gong practitioner is the cultivation of something he calls the Xin Xing?
At best, however, these passages might be seen as establishing that "my text" was a text purporting to state what "Li Hongzhi says", though, in truth, the passages do not establish even that. The author of the text may have been Li Hongzhi, but, consistently with the transcript, the author may as easily have been reporting Li Hongzhi's words (perhaps in translation) second- or third- hand, or at an even greater remove. The author may have been a follower of Li Hongzhi, a neutral observer, or even hostile to Falun Gong. There are numerous possibilities, none of which can be tested in any meaningful way.
64 Counsel for the Minister also argued that one could infer that the unidentified text provided a rational foundation for evaluation of the first respondent's knowledge because the first respondent himself accepted certain propositions that the Tribunal claimed to derive from it. The argument seemed to be that the first respondent conceded his answers were wrong. This is not, however, a fair reading of the transcript. On occasion, the first respondent accepted the Tribunal's statements as correct, but explained why he considered those statements consistent with his answers as he had expressed them.
65 Counsel for the Minister further argued that the Tribunal's questions went to central matters of Falun Gong belief. Counsel identified the Falun, Xin Xing and the "black substance" as the three subjects explored during the Tribunal's questioning of the first respondent. Counsel submitted that the Falun and Xin Xing were central aspects of Falun Gong belief, and that the black substance was a topic introduced by the first respondent. Questioning a claimed adherent of Falun Gong about these subjects was, so counsel argued, different from questioning him about random minutiae. According to this argument, resolving the first respondent's claim based on his knowledge of central aspects of Falun Gong doctrine could not be said to be arbitrary.
66 There was, however, nothing in the record to establish that the concepts identified by counsel for the Minister were central to Falun Gong doctrine, although counsel for the respondents did not dispute that they were. It can probably be assumed that the Falun, at least, plays some important role. The first respondent spoke of "black influence"; it was the Tribunal that introduced the phrase "black substance", but this difference can probably be put to one side. Even if one assumes that the subjects canvassed in the Tribunal's questions were important aspects of Falun Gong doctrine, this would not establish that there was a rational connection between the text and the Tribunal's finding as to the first respondent's lack of knowledge of Falun Gong. The issue is not simply the subject matter of the Tribunal's questions but how the content of the text compared with the first respondent's answers.
67 At one point, counsel for the Minister also sought to derive support from the fact that the Tribunal asked more than "one or two" questions during its questioning. Counsel did not, however, rely heavily on this consideration, which in truth does little to advance the Minister's case. So far as the transcript indicates, the extent of the Tribunal's inquiry into the first respondent's knowledge was comparatively limited. In any event, tallying the number of questions asked by the Tribunal establishes nothing of present relevance.
68 Aside from the individual difficulties with the Minister's four factors, there are other problems with the Minister's position. One puzzle that arises when the transcript and the reasons are read together is the marked change in the Tribunal's evaluation of the first respondent's answers between the Tribunal's questioning of the first respondent and the Tribunal's delivery of its reasons for decision. The Tribunal went from the view expressed in at the hearing that "several" of the first respondent's answers were "either not correct or partly correct and partly incorrect" to the view expressed in the reasons that none of them were correct. One explanation for this change may be that the Tribunal abandoned reliance on the unnamed text at some point after the hearing and before the delivery of the reasons, perhaps because the Tribunal considered the text was not a reliable source of Falun Gong doctrine. There are numerous other possibilities that might explain the change. Whatever the true position, this unexplained change highlights the difficulties inherent in inferring that the Tribunal's relied to any extent on unidentified material that finds no place in its written statement under s 430. The fundamental and inescapable problem with the Minister's position is, however, that, even if one assumes that the Tribunal had regard to a text by Li Hongzhi, so long as the text is unidentified, there is no way of knowing whether there was information in that text which rationally supported the conclusion that Falun Gong doctrine was not as described by the first respondent.
69 Ultimately, however, the Minister's position did not require the Court to accept the Minister's "reconstruction" of a purported basis for the Tribunal's finding. The Minister argued that, even if the Court was not satisfied by reference to the transcript that there was no jurisdictional error, nonetheless it was incumbent on the respondents to establish jurisdictional error and they had not done so. According to the Minister, the respondents were required positively to establish that the unidentified text did not provide a foundation for the Tribunal's finding, even though the text was not referred to in the written statement given under s 430 and was not otherwise identifiable in the Tribunal record. Plainly enough, such a burden would be impossible to meet. Simply put, if the text cannot be identified, there is no way the hypothesis that it supported the Tribunal's finding can be refuted. Of course, it was only necessary that, having regard to the first respondent's answers and the text, the Tribunal's finding as to the first respondent's lack of knowledge was reasonably open to it (cf SZMDS 266 ALR at 396 [131] per Crennan and Bell JJ) - a proposition that in other circumstances might have been difficult to refute. But this is no answer to the fact that on the Minister's approach the respondents would find it virtually impossible to show that a key finding or inference of fact was not grounded in probative material and logical grounds.
70 Nor is it an answer to say that the respondents could have sought an order of mandamus compelling the Tribunal to identify the "text" mentioned by it at the hearing (cf. Ex parte Palme at 224 [41]). Such an obligation to disclose could arise only if the Tribunal's finding was in fact based on the text: see s 430(1)(d). As discussed above, however, the fact that the Tribunal did not refer to the text in its s 430 statement gives rise to an inference that the Tribunal did not in fact rely on it. The same uncertainty that makes speculation regarding the Tribunal's reliance on the text problematic would make it impossible for the respondents to establish entitlement to an order compelling the Tribunal to identify the text. When one looks closely at the position in which the Minister's approach places the respondents, their attempt to introduce a text into evidence is understandable, even if it was ultimately misguided.
71 It is well-established that the onus lies with the party seeking to establish jurisdictional error: see, for example, R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 155 per Dixon, Fullagar and Kitto JJ; Ex parte IBM Global Services Australia Ltd [2005] FCAFC 66 at [27] per Gray, Whitlam and Moore JJ; and Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 at [15] per Jagot J. However, as this Court has observed, "[i]ssues regarding the burden of proof are not always straightforward in judicial review proceedings": see Minister for Immigration and Citizenship v Le (2007) 242 ALR 455 at 472 [55] per Kenny J. If the respondents' onus entails negating the possibility that an unidentified and apparently unidentifiable text, which was not referred to in the Tribunal's s 430 statement, provided the otherwise absent rational basis for the Tribunal's finding, then their appeal must fail.
72 It is, however, unnecessary to go this far. Under the circumstances of the present case, the respondents have met their burden. On the face of the Tribunal's written statement, the Tribunal's conclusion that the first respondent's answers were not correct was not grounded in probative material and logical grounds. That is, the statement does not disclose any material by reference to which a rational decision-maker could have evaluated the first respondent's answers; no such material can be found in the record; and no other logical basis justifies the Tribunal's finding. In these the circumstances, it is appropriate to infer that the Tribunal's decision-making was arbitrary and irrational such as to constitute jurisdictional error. In support of validity, the Minister could only speculate as to the nature and existence of purportedly probative but unidentified and unidentifiable material, an approach antithetical to that of s 430 of the Migration Act. Accordingly, the Federal Magistrate did not err in finding jurisdictional error.