Consideration: Does the tribunal have to make its decision on the most current information available to it?
27 In Peko-Wallsend 162 CLR at 44-45, Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue) said that, once it was accepted that the subject-matter, scope and purpose of the Act in question there indicated that the detriment that may be occasioned by a proposed land grant was a factor vital to the exercise of the Minister's discretion, it was but a short and logical step to conclude that a consideration of that factor "… must be based on the most recent and accurate information that the Minister has at hand".
28 Mason J observed that considerable time might elapse between completion of the earlier report of a Commissioner and the time at which the Minister had to make a decision, which in that case was well over a year and a half. He said that the change of circumstances may mean that the previous comments were no longer an accurate guide. He continued (Peko-Wallsend 162 CLR at 45):
"It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
This conclusion is all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to a new hazard or new jeopardy." (emphasis added)
29 The principle identified by Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty: Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609; see also Shi v Migration Agents Registration Authority (2008) 248 ALR 390 at 400 [42] per Kirby J.
30 Recently, Buchanan J referred to the need for a decision maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. He described this as an "expected practice", but in the circumstances of the matter he was deciding, he said that it was not necessary for him to consider the "expected practice ... as one in the nature of a jurisdictional imperative": SZIGH v Minister for Immigration & Citizenship [2008] FCA 1885 at [34]. This was because the tribunal had disbelieved the applicant for review in that case on matters completely unrelated to the more recent country information, which could not possibly have been relevant to events claimed to have occurred many years before.
31 Buchanan J was thus dealing with a factual context in which the recent material had no bearing on the outcome, and so the tribunal's error in failing to have regard to it did not affect its exercise of power in determining the review. I do not understand that his Honour was seeking to qualify the principle; rather he was explaining why it had no bearing on the ultimate exercise of power by the tribunal on the facts before him.
32 I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice. But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully; i.e. in the manner authorised by the Parliament: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006)228 CLR 152 at 160-161 [25]-[26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation. However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 618 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
33 In VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 96 [16] Gleeson, Gummow, Kirby Hayne and Heydon JJ said:
"Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached." (original emphasis)
34 Ordinarily, but not invariably, a failure to follow the procedures mandated by law necessarily affects the exercise of an administrative decision-maker's power, because the decision will be arrived at in a manner outside that authorising it; hence the need to pay particular attention in judicial review proceedings to the formalities of procedure in the path leading to the challenged decision.
35 The Minister argued that the appellants' complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404. He relied on the reasoning on VWFW [2006] FCAFC 29 at [73]. He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration: see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27]-[29] per Jacobson J.
36 However, those cases did not apply or qualify the principle identified by Mason J in Peko-Wallsend 162 CLR 44-45 that "… an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made" and that should be the most current material available to the decision-maker. Indeed, in VWFW [2006] FCAFC 29 at [68]-[69], Lander J noted there that the first item of country information relied on suggested that the previous information was still current, and the second item of country information relied on was consistent with the tribunal's findings.
37 More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones: Peko-Wallsend 162 CLR at 39-42. In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision "on the basis of the most current material available to [it]": Peko-Wallsend 162 CLR at 45.
38 In my opinion, the critical question for the tribunal to decide under s 36(2)(a) of the Act is whether, at the date of its decision, the applicant for a visa is a person to whom Australia has protection obligations under the Refugees Convention. An adverse conclusion can result in an applicant for review being returned to his or her country of origin, despite his or her claim to have a well-founded fear of persecution were he or she to return there. And, if that occurs, he or she might be exposed to the possibility that the fear was in fact well-founded.
39 Often, circumstances can change radically in the applicant for review's country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d'état and continuing governments may change their domestic policies to become more or less oppressive.
40 If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (i.e. before him or her) supports a conclusion of persecution of adherents of that religion in the applicant's country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered.
41 The claim of a black person that he or she would suffer persecution for reasons of his or her race, by being subjected to slavery if he or she returned to one of the Confederate States in North America, would be viewed through very different eyes in 1861 and today. And the aphorism that a week is a long time in politics is not a merely local observation. The trend of events throughout the world is one of constant charge. A decision-maker charged with the important function of assessing whether Australia owes protection obligations to an applicant for a protection visa cannot ignore recent, up to date information actually before him or her and make a decision on earlier material which may be out of date.
42 Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45.
43 Of course, the Court cannot turn a review of the administrative decision into a review of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Their Honours said that proceedings for judicial review should not over-zealously scrutinise the reasons of the decision-maker. Those reasons are meant to inform.
44 The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.
45 Here, the tribunal was actually aware of DFAT report 404 and used it to conclude that postponement of the compensation fee and payment of it by instalments was possible. Thus, it relied on the report in assessing the position of the appellants, were they returned to Fujian Province, as the basis for its conclusion that the family planning laws would be enforced in a way which permitted S's parents to pay the social compensation fee over time. Yet, the very same report stated, in the same paragraph from which the information relied on by the tribunal was taken, that the Shandong authorities strictly enforced the family planning laws. And the report stated that this accorded with DFAT's 2004 information regarding family planning regulations in Fujian province.
46 When the tribunal said that it accepted that "independent information shows that there is a considerable relaxation of the one child policy in Fujian Province", it provided no source for that assertion. Its attribution of relaxation appears to derive from what it said next, namely that one-third of families in the four counties of Fujian province had three children or more. The tribunal gave no reason for putting to one side the recent contrary information in DFAT report 404 that the laws were strictly enforced in both Shadong and Fujian provinces. And, the tribunal used part of that report itself, so it obviously regarded it as providing some reliable information. Of course, a decision-maker is entitled to accept some and not accept other parts of evidence from the same source, be it a witness or a document.
47 The material supporting "a considerable relaxation" identified by counsel and accepted by her Honour below was out of date compared to DFAT report 404. The latter contained information from 2004 in relation to Fujian Province. That was more recent than the 2002 UK information which the Minister argued the tribunal appeared to have accepted.
48 The tribunal used its finding of "considerable relaxation" to reject the husband's submission to it of 4 September 2006 about the population and birth control law of Fujian. There he wrote that that law had been published on 30 July 2002. The tribunal gave no reasons for rejecting the submission's references to the Fujian law dated July 2002 as the law that applied in that province. The tribunal did not give any consideration in its reasons to that law. If it existed, as claimed, it could not have been the Fujian law considered in the April 2002 UK Home Office report because that ante-dated July 2002.
49 The tribunal was so impressed by its "submission" in its s 424A letter of 10 August 2006 that its reasons do not reveal that it gave, any, let alone, proper, genuine and realistic consideration to the merits of the appellants' claims on the one child policy. It did not even refer in its reasons to whether it had considered the law which the appellants expressly put to it before rejecting their claim on the unsourced basis that there had been "considerable relaxation" of the application of some unidentified Chinese laws. Moreover, the appellants' claims of strict enforcement were supported by up to date, as at 2004, material on the Fujian position in DFAT report 404.
50 The tribunal failed to have regard to or give any reason for rejecting the recent country information in DFAT report 404 that the one child was strictly enforced in Fujian Province, contrary to its assertion that there was a "considerable relaxation" of that policy. Yet it used the up to date information from the same source for the purposes of finding that the social compensation fee could be paid in instalments. It did not give genuine, proper and realistic consideration to the merits of the appellants' claims as to enforcement of family planning law in China. Although the Minister argued that this was a matter either of weight or selection of evidence, I am satisfied that the tribunal ignored the most up to date and recent material available to it in DFAT report 404: Peko-Wallsend 162 CLR at 45. Accordingly, I am of opinion that the tribunal made a jurisdictional error and her Honour erred in failing so to find.