The "component integers" of the appellant's claims
33 It remains to consider the case raised by particular (a). As is apparent from Mr Karp's submissions above, that particular relies upon the four incidents being treated as "component integers" of the appellant's claims, in the sense that each one of them had to be considered by the Tribunal as a separate relevant consideration.
34 The expression "component integers" appears to have been first used in connection with an appeal under the Migration Act 1958 (Cth) in Htun. The critical part of the reasons of Allsop J in Htun (see [25] above) was: "To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend." (emphasis added)
35 In Htun, the Tribunal rejected the applicant's claim he would face a real chance of persecution if he were to return to Burma because of his welfare, social and political activities in Australia "with the TRW [Tribal Refugee Welfare] in particular". In doing so, the Tribunal relied upon information it obtained from the Department of Foreign Affairs and Trade that such activities "were sufficiently innocent not to be of a level as to make him of any concern to the Burmese authorities": see Htun at [40]. However, the Tribunal failed to consider the applicant's claims that he had a number of friends in Australia, some of whom were members of the Karen National Liberation Army. The Full Court held that the Tribunal made a jurisdictional error in not considering this component of the applicant's claim because it involved "political activity and also … friendships made with other Karen people of arguably seriously subversive background". The Full Court obviously regarded this component of the applicant's claim as an essential component of his claims for a protection visa such that it required consideration by the Tribunal: see Htun at [42] (at [25] above).
36 Aside from such an essential component or integer of an applicant's claim, the Tribunal has no obligation "to refer to, or adequately to consider, evidence, whether or not it might be thought probative": see Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24] per Kenny J and the cases referred to there. Accordingly, its failure to do so does not give rise to jurisdictional error.
37 In SXRB, Lander J described the difference between an integer and evidence in these terms (at [32]-[33]) as follows:
32. The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant's claim for an entitlement to a visa. Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.
33. Any integer of any applicant's claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial. The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself. It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived...
(Emphasis added)
38 It follows that whether a piece of evidence is of the kind that has to be considered by the Tribunal, depends on the nature of the evidence concerned, either considered alone, or in combination with other evidence, and its significance in terms of the possible effect it may have on the result of the Tribunal's deliberations.
39 Of the four incidents relied upon by the appellant, there can be no doubt that the Tribunal considered the 2003 incident. It considered that incident notwithstanding the "considerable doubts" it had about the reliability of the appellant's parents' evidence. As it noted at [142] of its Reasons (see at [19] above), those doubts were engendered by: the long delay in their application for a protection visa after their arrival in Australia in 2006; the tenuous nature of their evidence about their church attendance in Australia before August 2008; and the late introduction of their claim in relation to the 2003 incident itself. Nonetheless, the Tribunal took account of the "considerable scarring" the appellant's father had on his back which it thought was consistent with the 2003 incident and the "reasonably convincing manner" in which the appellant's father described his detention during that incident. Having decided to accept the appellant's father's evidence, the Tribunal then decided it was "most straightforward to consider the consequences for the applicant if his parents were indeed involved with an unregistered Christian family church in China, and if they were to resume that involvement on returning to Jilin Province".
40 It follows from this that the Tribunal did not limit its consideration to the 2003 incident itself, but rather proceeded on the basis that the 2003 incident supported the appellant's parents' claims that they were involved in an unregistered Christian church in China. On that basis, the Tribunal proceeded to consider what was likely to happen if the appellant and his parents were to return to China and his parents were to resume their involvement with an unregistered Christian church there. Having done so, it rejected the appellant's claims on two bases:
(a) It was not persuaded that the appellant's parents would be detained as a result of attending an unregistered Christian church because there was no independent evidence of such detentions occurring in Jilin Province in the recent past and independent country evidence indicated that the government in China allowed people to meet at home for Christian worship: Reasons at [143] (see at [19] above).
(b) Even if the appellant's parents were detained by police for attending an unregistered Christian church, the evidence showed that there were family members in China who would take care of the appellant and any separation from his parents caused by their arrest and detention could not be considered to constitute serious harm, particularly in view of the fact that the appellant's sister, who was four and a half years of age at the time, had remained in China with a member of the family: Reasons at [144] (see at [19] above).
41 So, while the Tribunal did not expressly consider the first incident in 1999, or the third incident in 2006, I consider the essential elements of those two incidents are the same as those of the 2003 incident, viz the mother had been detained by the PSB in the past for attending an unregistered Christian church, which the Tribunal clearly did consider. For this reason, I consider these two incidents merely provided further evidence of a fact the Tribunal was willing to accept as a result of its acceptance of the appellant's father's account of the 2003 incident. I do not therefore consider these two incidents can be characterised as separate component integers of the appellant's claims such that they should have been expressly considered by the Tribunal. Nor do I consider that they required such express consideration by the Tribunal because they constituted evidence that was of such a nature or significance that it might have affected the result of the Tribunal's deliberations.
42 For these reasons, I consider the Federal Magistrate was correct in his conclusion that: "What [the Tribunal] was required to do was to consider [the appellant's parents'] circumstances in the past as these could inform the chance of persecutory harm to the [appellant] in the future": Reasons at [108] (see [22] above). Further, his Honour was also quite correct in concluding that the Tribunal did not need to consider the details of the appellant's parents' claims of past persecution, including each of these three incidents, because it had concluded that those claims should be rejected for other reasons: Reasons [114] (see [22] above). It follows that particular (a) must be rejected insofar as it relies upon the first three incidents.
43 That leaves the fourth incident, the 2008 incident. As noted above (at [13]), the 2008 incident is different in nature to the other three incidents: it relied upon an account of the incident given (albeit by hearsay through the appellant's mother) by the appellant's grandmother; it was more recent than the 2003 incident upon which the Tribunal focused; it involved the death of one of the appellant's mother's aunts, a claim which was said to be supported by a death certificate. As such, on its face it provided independent (ie of the appellant's parents) recent evidence to support the appellant's claims that the appellant's parents may suffer the ultimate consequence, that is, death, if they were to return to China and resume their involvement with an unregistered Christian church.
44 Because these differences are potentially significant in the context of the appellant's claims, I consider this fourth incident constituted a separate component integer of those claims such that it should have been expressly considered by the Tribunal. Alternatively, even if it were to be taken as evidence in support of the same component integer to which the other three incidents was directed, I consider it provided evidence of such a nature or significance that, if it were accepted by the Tribunal, it might have affected the result that the Tribunal reached. Thus, on either basis, I consider it should have been expressly considered by the Tribunal.
45 It is not in dispute that the 2008 incident was only mentioned once in the Tribunal's reasons and it was not expressly considered in the "Findings and Reasons" section of those reasons. Mr Riley, counsel for the Minister, submitted that it was not necessary for the Tribunal to make any express finding in relation to the 2008 incident because it was variously: evidence of so little significance that a finding was unnecessary; it was evidence that was directed to the same issue as the other three incidents, viz whether the appellant's parents would be detained if they were to return to China and resume their involvement with an unregistered Christian church; and, in any event, it was subsumed in the Tribunal's general findings at [144] of its reasons, where it said: "In my view, the claim that the applicant would suffer serious harm by being separated from his parents, in the very unlikely event that they were jailed for participating in an unregistered family church in Jilan, is fanciful and there is no objective basis for it."
46 In making these submissions Mr Riley relied upon the Full Court decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [46]-[47] as follows:
46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
47 I reject all of these submissions. First, for the reasons set out above, insofar as the 2008 incident is to be treated as evidence, I consider it constituted evidence of such potential significance that, if it were accepted by the Tribunal, it might have led to it reaching a different result. This is so because the source of the evidence was independent of the appellant's parents and was allegedly supported by a death certificate. Further, the evidence itself was much more recent than the 2003 incident that the Tribunal focused on. Thus, on its face, I do not consider the Tribunal could have logically and rationally rejected it on the same basis as it rejected the evidence contained in the other three incidents, viz that it was not independent and it was not recent: see at [40] above.
48 Secondly, while it was, in part, directed to the same issue as the other three incidents, the 2008 incident involved a potentially significant difference: if it were to be accepted by the Tribunal, it may provide evidence that a future intervention by the PSB, involving the appellant's parents, may result in the death of one of them. If so, I do not consider it could seriously be suggested that the death of one of the appellant's parents would not amount to serious harm for the purposes of the Act. The lack of serious harm was, of course, the alternative basis upon which the Tribunal rejected the appellant's claims, based on the other three incidents: see at [40] above.
49 Finally, for either, or both, of the reasons set out above, I do not consider the 2008 incident was subsumed in the findings the Tribunal made at the conclusion of [144] of its reasons, set out at [45] above.