Written submissions
40 The appellant submitted that the second respondent wrongly misstated the appellant's claim at [30] of its decision record and as a result made erroneous findings and conclusions about the appellant's credit. When the appellant sought to correct the second respondent's misunderstanding he was said to be changing his story.
41 On the basis that the context of the appellant's claims was independent merits review, the appellant first submitted that the "abridged concept of procedural fairness that applies to Refugee Tribunal matters has no bearing on the present case, which is governed only be [sic] common law concepts of administrative law due to the non-statutory nature of the independent merits review scheme," and sought to rely generally on the decision of the High Court in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69/2010 v Commonwealth of Australia (2010) 243 CLR 319.
42 In his written submissions, the Minister cited a number of the classic propositions of the High Court in this area: (1) there is a distinction between a decision outside the limits of a decision maker's functions and powers and a decision maker incorrectly deciding something which the decision maker is authorised to decide: Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163], (2) the duty and jurisdiction of the court to review administrative actions does not go beyond declaration and enforcing of the law which determines the limits and governs the exercise of the decision maker's power. If, in doing so, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the decision maker: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; (3) not all error that is capable of going to jurisdiction will necessarily do so, the error must be material to the decision in the sense that the decision depends on the error: Ibrahim v Minister for Immigration and Citizenship [2009] FCA 1328 at [7]-[14].
43 The Minister correctly pointed out that the decision under review is a decision of the Tribunal, not an Independent Merits Reviewer. Accordingly it is a "privative clause decision" within the meaning of s 474 (2) of the Migration Act unless it is affected by jurisdictional error such that it cannot be considered a decision made "under this Act": Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. Section 422B therefore provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to the "matters" set out in Division 4 of Part 7 of the Migration Act which constitutes a "clear statement of legislative intent excluding the continuing operation of common law principles of natural justice in the conduct of reviews" on those matters: Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427 at [12]-[18]. There was no suggestion that any provision of Division 4 of Part 7 has been breached in this case. Accordingly, the appellant's first submission must be rejected.
44 The appellant submitted that in the circumstances, the second respondent's erroneous reading of his Statement in relation to the events of 10 March 2011 which, in part or in whole, led it to reach a mistaken conclusion was a jurisdictional error. He relied on the dictum of the High Court in Craig v South Australia (1995) 184 CLR 163 at 179:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
45 The Minister contended that the appellant's reliance on the classic statement in Craig is misconceived because the High Court's statement concerns the impact of an error of law on a Tribunal's decision making, not an error of fact. While the Minister's submission is correct, it is not the end of the issue.
46 The appellant also sought to rely on the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (Li) per Hayne, Kiefel and Bell JJ at [63] for the proposition that "the legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably." The appellant contended that the decision of the second respondent that the appellant changed his story and was untruthful was not informed by any reasonable consideration of the evidence and was one that no reasonable decision maker could have come to within the dictum of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The appellant said that the findings of fact were not reasonably open on the evidence and were perverse, relying on Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [38].
47 The Minister correctly pointed out that the Tribunal is bound by s 415(4) of the Migration Act not to purport to make a decision that is not authorised by the Migration Act or the Migration Regulations 1994 (Cth). Accordingly, in reviewing a decision of the Delegate made under s 65(1) to refuse to grant a protection visa, the Tribunal only has power to vary or set aside the decision if it is satisfied that the applicant meets the criteria for that visa set out in s 36; otherwise the Tribunal must affirm the Delegate's decision. No discretion is involved. I accept the Minister's argument that High Court's analysis of "unreasonableness" in the context of procedural discretions in Li has no application in the present case in the manner asserted by the appellant. "Unreasonableness" in decision-making applies only to determining the validity of discretionary decisions rather than the fact-finding leading to those decisions: SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 (SZOOR) per McKerracher J at [83].
48 A finding of a jurisdictional fact can be impugned where it is illogical, irrational or lacks a basis in findings or inferences of fact supported on logical grounds: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) per Gummow A-CJ and Kiefel J at [40]. I will refer to this ground as "illogicality" for convenience. A wrong finding of fact, which is not a jurisdictional fact, will generally not be sufficient to impugn a decision: SZOOR per Rares J at [12]. It is, however, necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion reveal illogicality or irrationality amounting to jurisdictional error: SZMDS at [132] per Crennan and Bell JJ.
49 The Minister contended that the Tribunal's reading of the Statement about the events of 10 March 2011 disclosed at [30] of the decision record is not wrong: it was a reading open to the Tribunal. The Minister said that the language used was not that of a native English speaker. While I acknowledge that the use of the date 3 November 2011 in the immediately preceding paragraph of the Statement (which the Tribunal later accepted should be 3 January 2011) added a dimension of confusion to the Statement, I do not accept the Minister's argument. I consider that the plain reading of the paragraph dealing with the events of 10 March 2011 is consistent with the evidence given by the appellant, and that the Tribunal's interpretation in [30] is wrong.
50 Paragraphs [44]-[49] of the decision record demonstrate the difficulties faced by the Tribunal in establishing the factual claims made by the appellant arising from the confusion around this and other issues. Those issues were addressed in the s 424A Letter, and insofar as they relate to the appellant's claims about the fines and subsequent demolition of his home, they are addressed in his Further Statement. Paragraphs [69]-[72] of the Tribunal's decision record expose how the Tribunal dealt with the issues (footnotes omitted):
69. The Tribunal firstly considers that the applicant's evidence as to when he was issued with the first penalty notice following the birth of his child, when he was first attacked, and when he paid the fine is confused and inconsistent. Thus, although the applicant stated in his statement to the Department that he was first issued with a penalty notice on 10 March 2011 and that it was on that day that he was attacked and retaliated against because he had "spoken the truth" about the payment of the fine, the applicant subsequently told the Tribunal during the hearing that he was first attacked on 3 January 2011 when he first went to the family planning offices to complain about having to pay the fine. In response to the Tribunal's post hearing s.424A letter, the applicant has stated that on 3 January 2011 he questioned the family planning officials about the fine and it was on that day that he was beaten and his left leg was stabbed whilst he was on his way home.
70. The Tribunal does not accept that the applicant would not have stated in his statement to the Department that he was attacked on 3 January 2011 when he claims to have first gone to the family planning offices to complain about the amount of the fine. The Tribunal considers it evident that the applicant has altered his evidence in relation to this issue. The Tribunal also considers that the applicant's evidence (see below) whereby he altered and shifted his evidence as to when he found out how much he had to pay casts further doubts on his evidence to have gone to the family planning offices in January 2011 to complain about the amount of the fine that he subsequently indicated he did not find out about until June 2011. As discussed below, the applicant initially indicated to the Tribunal that he found out how much he had to pay in June 2011 and that he paid the fine soon after that time. However, the applicant subsequently altered his evidence, indicating that he found out orally before that time as that is "the way it works in China". In addition, when the amount of the fine was discussed during the hearing, the applicant indicated that he had "no idea" how the fine was calculated but he had no "disagreement" with the fine and only the amount. The Tribunal considers it further problematic that the applicant would be insistent on complaining about the fine in circumstances where he does not even know how the fine is calculated and would only assume that he was being charged more than other people. The Tribunal does not accept that it is credible that the applicant would have been complaining about the fine at a time when he was uncertain of the amount or how it was calculated. In addition, although the Tribunal accepts that the authorities in China can act in a harsh and arbitrary manner in the application of family planning policies in Hebei and elsewhere in China and that couples who violate the policy can be subject to the destruction of their homes, incarceration and forced sterilisation, the Tribunal also does not accept that it is credible that the applicant would have been attacked and stabbed on his way home on the first day that he went to the family planning offices, some 2 weeks after the birth of his son, to complain about the fine in circumstances where he claims to have not yet been issued with a penalty notice requiring him to pay 77,910 yuan. In the context of the other problematic evidence in relation to this issue, the Tribunal does not accept that the applicant complained at that time or that he would have posed any threat to the officials such that the officials would have considered it necessary to beat, and stab him on his way home. The Tribunal considers that the inconsistent, confused and implausible nature of the applicant's evidence in relation to this issue raises serious concerns that it has been manufactured.
71. The applicant has also claimed in his statement to the Department that he was issued with a notice to pay the penalty on 10 March 2011 and a notice stating that his land would be confiscated. During the Department interview the applicant stated that he paid the fine on 28/29 June 2011. However, during the Tribunal hearing when asked when he found out how much he had to pay, the applicant initially indicated that it was on 28/29 June 2011 when he was issued with a penalty notice that he found out how much he had to pay. The applicant subsequently altered his evidence and stated that he knew beforehand how much he had to pay but it was June 2011 when it was put in writing. The applicant then stated that he found out in January 2011 how much he had to pay. He was also asked during the Tribunal hearing when he was given the penalty notice and he stated that on 10 March 2011 he was only given the penalty notice orally. In response to the Tribunal's s.424A letter, the applicant has stated that he was not given a notice to pay the fine on 10 March 2011 and that his earlier evidence was a "translation error" and he was only given a notice for the confiscation of his property and land and it was on 29 June 2011 that he was given the notice of the fine and he paid it on 1 July 2011. The applicant claimed in response to the Tribunal's s.424A letter that he may have made "time errors" and that his wife told him the date.
72. The Tribunal is prepared to accept the "translation error", but nevertheless considers that the applicant's evidence in relation to the above issues is confused and inconsistent. The Tribunal considers that the applicant's evidence during the hearing as to when he found out about the amount of the fine was evasive and that he has altered his evidence as to when he found out how much he had to pay. The Tribunal also considers it evident that the applicant has given inconsistent dates as to when he paid the fine and although he told the Department that it was on 29 June 2011 he later claimed that was the day he was issued with the penalty notice and he paid the fine some 2 days later. The Tribunal considers that the applicant has been unable to provide a consistent or coherent account of these issues because, although the Tribunal accepts that he was required to pay a fine for breaching China's family planning regulations, he has attempted to manufacture evidence regarding the consequences of the birth of his third child and his breach of China's family planning policies. The Tribunal does not accept the applicant's explanation for the problematic nature of the evidence in relation to this issue. The Tribunal considers that the applicant's evidence in relation to these issues is further indicative of the fact that it has been manufactured.
51 On a reading of the Tribunal's decision record as a whole and [69]-[72] in particular, I consider that the Tribunal was influenced by its misreading of the Statement and that it retained an impression of confusion and untruthfulness of the appellant that may have infected its satisfaction concerning the appellant's claims notwithstanding its statement that it accepted that a "translation error" had occurred. For instance, it is consistent with the Statement that the appellant was told the amount of the fine orally in January 2011, pursued for it in March 2011 and only received the written demand later, but the Tribunal at [71] nonetheless considers this a shift in his evidence and at [72] states that the applicant was unable to provide a consistent or coherent account of these issues.
52 However, this is not the only basis of the Tribunal's findings. The Tribunal rejected the appellant's evidence of the circumstances of his employment in China and did not find it plausible that the appellant would be further pursued once the fine had been paid. As demonstrated at [70] of the Tribunal's decision record, there are other elements of the appellant's claims in relation to penalties and physical harm inflicted on him which were found not to be plausible by the Tribunal. These findings appear open to the Tribunal and they are not an illogical or irrational basis for the Tribunal's finding of the jurisdictional fact.
53 Illogicality will not amount to jurisdictional error in every case and it will not be sufficient where it would be futile to grant relief because there are other bases for the impugned decision: SZOOR per McKerracher J at [85] and cases cited at [95]-[101]. Reviewable error in relation to one matter (in SZOOR, reliance by the Tribunal on an anonymous letter) would not be sufficient to grant relief where other matters grounded the decision. Consistent with the reasoning of Crennan and Bell JJ in SZMDS at [135] and Reeves J in SZOOR at [113], this is not a situation where only one conclusion is open on the evidence, or the decision was simply not open on the evidence or there was no logical connection between the evidence and the inference or conclusions which the Tribunal drew on those matters.
54 Accordingly, I do not grant leave to the appellant to amend the grounds of appeal to this Court. I note that the orders sought in the draft notice of appeal would not have been appropriate if the Court had found those grounds to be made out; writs of mandamus and certiorari would have been the appropriate remedy. I also dismiss the ground set out in the last sentence of the notice of appeal.