A denial of procedural fairness
28 The denial of procedural fairness Ground of Appeal focussed upon two contentions, namely:
an alleged failure in not disclosing "its source of information" and not affording an opportunity to be heard in respect to the information relied upon by the Tribunal in reaching its findings in respect to "forced sterilisation"; and
an allegation that the Tribunal had "predetermined our case before actually reading all of our claims and arguments".
Neither contention prevails.
29 As to the former contention, considerable reservation was expressed during the course of the hearing of the appeal as to whether the Tribunal had adequately disclosed the substance of the information upon which it was proceeding. But it has ultimately been concluded that the Appellant was alive to the issues being considered by the Tribunal and which formed a factual foundation for its decision and that the Appellant was extended an adequate opportunity to be heard in respect to these issues.
30 At least some of the information relied upon was canvassed with the parents by the Tribunal Member during the hearing held on 19 January 2015. The exchange between the Tribunal Member and the mother relied upon by the Respondent Minister was the following:
Q. The independent evidence I have, the evidence indicates that upon the payment of a fine, [the Applicant] would be able to obtain a hukou.
A: INTERPRETER: Yes. In order to get [the Applicant's] hukou registered, we need to pay a high amount of penalty payment, and I am facing the forced sterilisation. Then we can apply for the hukou to be registered.
Q. Okay. You have to apply, but after that, after you've paid the fine and the forced sterilisation, how would that impact on [the Applicant]? There's also very little evidence of that happening in either Fujian or Guangdong, and it's actually illegal now.
A: INTERPRETER: Possibly it hasn't been reported. But according to the Communist laws, it doesn't say that one has to be sterilised to get the hukou registered. However, when it gets to the local government, it is..(not transcribable)..
Q. I don't actually think that's consistent with anything that I've looked at, people being forced to be sterilised before a hukou can be issued.
A: INTERPRETER: Because among the local governments, it is already a hidden rule. Everyone accepts it. No need to publish it. It's something you must do, you don't have a choice. So not much publication on it.
Had the matter been left there, it may have been concluded that the Appellant had been denied procedural fairness. That which was disclosed by the questioning was within a limited compass.
31 The reservation expressed during the course of the hearing of the appeal focussed upon the Tribunal finding that "the most common form of penalty under China's family planning laws for breaching China's family planning laws is the levying of a social compensation fee". A footnote to that finding referred to a number of Department of Foreign Affairs and Trade Reports and also said that it had been "frequently reported on" by the United States Department of State and the United Nations High Commissioner for Refugees. But none of those Reports had been disclosed to the Appellant. The above exchange during the course of the hearing could arguably fall short of disclosing the manner in which those Reports were used by the Tribunal. The footnote identified at least two factual propositions, namely:
that upon payment of a "social compensation fee", a "hukou" would be received; and
that the imposition of a "compensation fee" was "the most common penalty for couples breaching China's one child policy".
That footnote also referred to a report which describes:
the "process for children born overseas obtaining a hukou upon their return to China".
There was no substantial question canvassed during the hearing before the Tribunal other than the varying rates at which a compensation fee was calculated. But reservation is expressed as to whether there was sufficiently canvassed during the hearing the issue as to a compensation fee being the "most common" penalty and the issue of the "process" to be followed. Accepting that the specific Report relied upon by the Tribunal need not be disclosed, the question remained whether there had been sufficient disclosure of the fact that the payment of the compensation fee was the "most common penalty."
32 However, it has ultimately been concluded that such concerns, on the facts of the present case, were adequately addressed by:
the detailed content of the submissions made on behalf of the Appellant prior to the hearing before the Tribunal; and
the detailed submissions made after that hearing, those submissions (without alteration) addressing the "[r]isk of persecution of forcibly sterilization in relation to applicant's mother" and "[p]roblems faced by Children without Hukou".
It is also to be recorded that the concern advanced during the Tribunal hearing was more directed to the issue of the "forcible sterilisation" rather than the payment of any "compensation fee".
33 The submissions made, it has nevertheless been concluded, demonstrate the fact that the Appellant was alive to the issues which needed to be addressed and that the opportunity was extended to the Appellant to make such submissions. Having had that opportunity, it thereafter remained for the Tribunal to consider the submissions made and to make the relevant finding of fact.
34 The concern of the law, it is to be recalled, is "to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], (2003) 214 CLR 1 at 14 per Gleeson CJ. Ultimately the question to be resolved is one of "fairness": VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, (2004) 80 ALD 559 at 566 to 567. Allsop J (as his Honour then was) there concluded:
[27] Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
[28] Natural justice is ultimately a question of fairness. The appellant here came to the tribunal armed with her material about her country of origin in order to persuade the tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant's claims. In so analysing that material the tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.
[29] The material to which we were taken was not such as to be required to be provided to the appellant. The appellant had an opportunity to persuade the tribunal of her claims. The tribunal raised with her issues of concern, which in the end were important. Fairness was afforded.
His Honour adhered to these views in SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19]. See also: Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [34] per Bennett J.
35 No "practical injustice" or "unfairness", it is considered, has been exposed in the present case by the information and sources of information that the Tribunal relied upon in its reasons for decision - even if it were to be assumed that the Reports upon which the Tribunal relied were not disclosed to the now-Appellant.
36 Such a conclusion, however, should not be construed as providing any encouragement to Tribunal Members not to more fully disclose the information it has to hand and the information upon which it questions a claimant. To fully disclose such information should only be encouraged where it is practicable to do so, especially in those circumstances where a claimant is given an opportunity after a hearing has concluded to file further submissions. Not only does it avoid the prospect of subsequent argument, it also encourages procedural fairness by administrative hearings being both fair and seen to be fair. Such encouragement to disclose more information rather than less must nevertheless always be considered in the statutory context where country information need not necessarily be disclosed pursuant to s 424A(3)(a) of the Migration Act 1958 (Cth): cf. SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, (2009) 174 FCR 415. See also: SZNQS v Minister for Immigration and Border Protection [2016] FCA 637 at [8] to [9].
37 The "one-sided" nature of the information disclosed in the present case provides but an example of circumstances in which more fulsome disclosure on the part of the Tribunal should be encouraged. The submissions provided to the Tribunal on behalf of the Appellant both before and after the hearing set forth and annex the reports he relied upon and an identification of those paragraphs of those reports said to assume greater relevance. In contrast, there appears to have been comparative silence on the part of the Tribunal in similarly disclosing information it had to hand.
38 It is nevertheless also to be recalled that the opportunity to be heard is an opportunity to advance to the Tribunal such materials as the Appellant considers relevant to the claims advanced. The opportunity to be heard is not an opportunity to have the benefit of such findings and reasons as may thereafter be provided by the Tribunal and to thereafter carefully scrutinise and analyse what further evidence may potentially have addressed such adverse findings as have been made by the Tribunal. Opportunistic scrutiny of Tribunal findings and reasons with a view to discerning a perceived denial of procedural fairness should be discouraged.
39 As to the latter contention that the Tribunal had "predetermined" the claims made, there is no basis upon which that contention can be adequately founded. An allegation of a reasonable apprehension of bias is one which must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], (2001) 205 CLR 507 at 531. Gleeson CJ and Gummow J there further observed that what is required is that a decision-maker approach the claims being made with a mind "open to persuasion": [2001] HCA 17 at [105], (2001) 205 CLR at 540. See also: McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [23], (2008) 72 NSWLR 504 at 509 per Spigelman CJ; Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCA 370 at [82], (2011) 121 ALD 525 at 544.
40 Any allegation that the Tribunal Member "predetermined" the claims made or approached the resolution of those claims with a mind other than one "open to persuasion" is inconsistent with (inter alia) the extent to which issues were canvassed with the parents during the course of the hearing and the opportunity given to provide further submissions after the conclusion of the hearing.