Consideration
24 As Counsel for the appellants correctly submitted, in discharging its statutory review function the Tribunal is required to consider the appellants' claims and their integers (see, for example, SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 at [51]). As the Full Court of this Court further explained in NABE 144 FCR 1 at [55]:
Where the Tribunal fails to make a finding on "... a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].
25 The verb "consider" was discussed by the Full Court in Tickner 57 FCR 451. Black CJ observed at 462:
The meaning of "consider" used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary (2nd ed) as "to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of". Consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission.
26 At 495-496 Kiefel J said:
To "consider" is a word having a definite meaning in the judicial context … It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.
27 As has been acknowledged elsewhere, the concept of "political opinion" is broadly interpreted. So for example in V v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355 Wilcox J said at [16]:
… as a matter of law it is enough that a person holds (or is believed to hold) views antithetic to instruments of government and is persecuted for that reason. It is not necessary that the person be a member of a political party or other public organisation or that the person's opposition to the instruments of government be a matter of public knowledge.
(cf the helpful discussion of relevant principles in Vrachnas J, Bagaric M, Dimopoulos P, Pathinayake A, Migration and Refugee Law - Principles and Practice in Australia (3rd ed, Cambridge University Press, 2012) at pp 201 et seq.)
28 The Minister does not dispute that the views of the first appellant concerning the alleged indoctrination programs in primary schools in the PRC constituted a "political opinion" within the meaning of the Refugee Convention for the purposes of her protection claim.
29 As I noted earlier in this judgment, the Tribunal found, overall, that the appellants' claim was not substantiated, and that the first appellant was not credible. Counsel for the Minister submitted that the Tribunal's rejection of the first appellant's claims concerning the Society, and the generality of its reasons, could be taken to include a rejection of the first appellant's claims to possess the political opinion concerned.
30 I have difficulties with this submission for the following reasons.
31 First, I am satisfied that the existence or otherwise of the first appellant holding a political opinion in relation to indoctrination of primary school children in China was an integer of the appellants' claim.
32 The concept of "integer" of a claim is one familiar to judicial review, and refers to an integral or essential aspect of a claim. In Applicant M31 of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCA 533 Weinberg J set out relevant principles at [20]-[22]:
20. It has long been recognised, in public law, that a constructive failure to exercise jurisdiction can amount to jurisdictional error. In Paul v Minister for Immigration and Multicultural Affairs, Allsop J discussed the concept of an "integer" in connection with an alleged failure to deal with all aspects of a claim. His Honour said at [79]:
Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction … they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed. It may be that if the element of the appellant's claim for asylum based on her Tamil ethnicity was not addressed at all, that is if the Tribunal had only directed its attention to her claim based on her association with her husband, then in those circumstances relevant considerations might not have been addressed because an element or integer of the claim put forward by her would not have been dealt with. In such circumstances it may be that, in a jurisdictional sense, a relevant consideration had not been addressed. However, it is unnecessary to decide this given that the Tribunal did address the elements or integers of her claim.
21. Several months later, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Allsop J clarified the distinction between a failure to consider an element or integer of a claim, and an errant finding of fact. His Honour said at [42]:
The "participation in the Karen community and the political groups" could be said to have been dealt with by the tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. 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 (1986) 162 CLR 24 … It is to be distinguished from errant fact finding. … If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.
22. More recently, in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 a Full Court comprising French, Sackville and Hely JJ, in a joint judgment, said at [46]-[47]:
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.
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.
33 In this case there is nothing in the Tribunal's reasons to indicate that the Tribunal formed a view one way or another about the existence of the first appellant's claimed political opinion. Read fairly, while the Tribunal makes general findings about the first appellant's credibility and her claims, the Tribunal's reasons related only to the first appellant's claims concerning the Society. I am unable to identify any consideration by the Tribunal of the existence (or otherwise) of the first appellant's claimed political views concerning the PRC and the educational policies aimed at primary children.
34 The Tribunal was plainly aware of the first appellant's claimed political opinion concerning PRC government policies in respect of indoctrination of primary school children. The primary aspect of the first appellant's claim to the Tribunal was that it was on account of her alleged founding of the Society that she feared persecution. However, while her "detestation" of the PRC authorities and indoctrination programs aimed at primary school children was not the focus of the appellants' claim, it was an important aspect of it supporting the first appellant's claims concerning the Society. This is apparent in the first appellant's answers to questions 43 and 47 in her protection application.
35 The Tribunal may not have expressed a finding on the existence of her political opinion because (a) it accepted that she held such views which was the reason for her allegations of the existence of the Society and it was unnecessary to consider this issue further, or (b) it rejected her claims of holding such opinion and this rejection was demonstrated in the Tribunal's broad finding that the first appellant was not credible. However, notwithstanding the breadth of the terms in which the Tribunal's credibility findings were expressed, it is clear that the reasoning of the Tribunal was directed to the claims of the first appellant regarding the foundation and existence of the Society. I am not able to conclude with any certainty if the Tribunal adopted either approach in respect of her political opinion.
36 I am not satisfied that the Tribunal discharged its statutory duty in respect of the appellants' claims to the extent that, in its findings, the appellants' claims in relation to the first appellant's political opinion were subsumed into the Tribunal's determination of the appellants' claims concerning the Society. To paraphrase the observations of the Full Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593, it cannot be said that it was unnecessary for the Tribunal to consider the credibility of the first appellant's political opinion in circumstances where the Tribunal made factual findings in respect of the appellants' claims concerning the Society. As Counsel for the first appellant submitted, a proper consideration by the Tribunal of the first appellant's claims in respect of her political opinion may have led to a different result in the Tribunal, in the sense that a finding favourable to the first appellant on this point may have influenced the Tribunal's consideration of her claims in relation to the Society.
37 In my view the failure of the Tribunal to consider and determine the first appellant's claimed political opinion constituted a constructive failure to exercise its jurisdiction, and a jurisdictional error.
38 The appeal should be allowed. No reasons have been put to the Court to justify any order other than that costs should follow the event.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.