Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: applied
Lander J held that, in expressing conclusions, the tribunal did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion, and thus rejected a submission that the tribunal had failed to have regard to the information ( VWFW [2006] FCAFC 29 at [72] ). He distinguished the facts of that case from that of a decision-maker who failed to take into account a relevant consideration which the decision-maker was bound to take into account, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. He then concluded that the appellant's argument was, in truth, one that the tribunal had failed to give sufficient weight to the information contained in the two documents and that that submission had to fail: VWFW [2006] FCAFC 29 at [73] . 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) 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 &amp; Multicultural &amp; Indigenous Affairs [2006] HCA 63 ; (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 &amp; Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] - [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. 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'&eacute;tat 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. 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. 51 The appellants criticised the tribunal's use of DFAT report 404 in relation to the practice in Shandong Province for payment of the social compensation fee. For the reasons I have given, the tribunal was entitled to use this up to date information to the extent it did. While it did not have to accept the information, it had to base its decision on it: Peko-Wallsend 162 CLR at 45. I reject this argument. 52 The appellants also argued that the tribunal erred in failing to find that imposition of the fee would be persecutory of them. I am of opinion that this ground is without substance. The tribunal concluded that the fee was imposed by a law of general application. Her Honour concluded that this argument was an attack on the merits of the tribunal's decision. I agree. 53 The fifth basis on which the appellants challenged the tribunal's rejection of their claims based on the one child policy was that it had not made findings about the level of fee that would be imposed on the appellant parents for their breach or how long S would remain unregistered. 54 The tribunal accepted country information in many reports that stated that the Chinese authorities, first, applied the regulations dealing with the one child policy and, secondly, required payment of the social compensation fee (with the possible exception that the authorities might not apply the regulations and impose a social compensation fee in the case of a child conceived or, possibly, born out of China). The tribunal found that such a fee would be likely to be imposed on the parents in respect of S, were they to return to China. The Shandong regulations permitted a fee up to ten times the parents' income to be imposed. This may have required payment by instalments. The tribunal did not make any assessment of the real chance of a fee of a particular amount being imposed, nor did it address the capacity of the parents to pay any social compensation fee, even by instalments, within any particular period of time. As noted above, the tribunal discussed, at a high level of generality and speculation, the possible fee that may be imposed and possible scenarios as to how long it might take the appellant parents to pay it. This process, however, did not result in the tribunal making any finding about these issues.