That conclusion was reached notwithstanding the provisions of s 476(2)(b) of the Act.
Whatever the scope of the obligation under s 353 of the Act, in any event in my view the Tribunal has specific procedural obligations under the Act: s 358 entitles the applicant for review to present material to it, and inferentially at least obliges it to consider that material; s 360(1)(a) obliges the Tribunal to give the applicant the opportunity to appear and to give evidence; s 361, and in respect of certain decisions s 362, oblige the Tribunal to give the applicant the opportunity to request the Tribunal to obtain other evidence, and to consider such a request. It is given complementary powers to procure such evidence. Section 352 also prescribes procedures to ensure that the Tribunal receives from the respondent the materials held by the respondent's department relevant to the review of the decision. The Tribunal is otherwise charged with the proper conduct of the review application. It is clear that, whilst the Tribunal may investigate a decision under review much within its discretion, it must have regard to the material before it. It would make no sense if it were entitled to ignore relevant material conveyed to it under s 352 of the Act, or relevant material adduced before it as of right by the applicant or otherwise received by it. Of course, the weight if any to be given to such material by the Tribunal is a matter for the Tribunal. To regard a piece of evidence as of no weight may be entirely open to the Tribunal, and will not per se indicate error on its part. There will be cases, no doubt rare, where the evidence is of such a nature that a decision of the Tribunal will nevertheless be the product of a failure on its part to consider the material before it "rationally": see the discussion on this topic of Finkelstein J in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 399-402. The obligation to address the material before it in a rational way necessarily flows, in my view, from the processes prescribed under the Act for ensuring that it has relevant material before it. It is therefore either encompassed within the obligation of s 353, or implicit, that procedurally it must rationally address that material. I respectfully agree with the reasons of Finkelstein J in Epeabaka referred to, including (as his Honour points out at 402) that a failure to so address that material would not in any event be excluded from review under s 476(1)(a) by reason of s 476(2)(b) of the Act.
I have referred above to the material before the Tribunal as to the spouse applicant's relationship with the neighbour. But for the use of the word "adoption" in the translation of the neighbour's declaration of 15 December 1992, there is no material which could satisfy the Tribunal that, even under reg 2A(1)(c), the spouse applicant had an adoptive parent in Vietnam. The respondent did not, on this application contend that the Tribunal's conclusion was sustainable under reg 2A(1)(c). The contention was that the relevant relationship was available to be found under reg 2A(1)(b). I have concluded above that no material to support that conclusion was available. The Tribunal was not entitled to treat that declaration as evidence on that topic for the reasons given. The additional information requested, even if available and not provided, did not touch that topic.
In my view, there was no material from which the Tribunal could rationally conclude that the spouse applicant's parents were alive and in Vietnam. She lost contact with them in April 1975, when she was six years of age. There is no evidence to suggest they survived and continue to live in Vietnam. Every piece of evidence confirms that they have not been seen since 1975. There is no material to suggest that a household register or an SYLL as at 1975, or at any time before the spouse applicant commenced to live with the neighbour, is or could be available. The spouse applicant's places of accommodation since 1975 were documented, and confirmed by the neighbour and the independent certifications of 28 January 1993. A 1975 or earlier document disclosing that she then lived with her parents would not enlighten the relevant enquiry. Its absence, even if such a document were capable of being provided, could not in my view enable the Tribunal to conclude that the spouse applicant still had parents in Vietnam. Of course, the Tribunal may not have approached the matter in that way. I simply do not know, as its reasons do not disclose what view it took of the material which all pointed one way on that topic, or what factors persuaded it to the conclusion (if it reached such a conclusion) that despite that material the spouse applicant still had or may have a parent or parents living in Vietnam. On the basis of a reviewable error under s 476(1)(a) in failing to rationally address the material before it, as well as for failing to provide reasons in accordance with s 358, in relation to this possible factual foundation for its conclusion, in my view this application should also succeed.
It is unclear whether the Tribunal also was not satisfied that the spouse applicant had no siblings living in Vietnam. On this matter, there is some material to which it referred which might suggest that there were siblings in Vietnam despite the Tribunal's error in treating the oral evidence of Sang Ly as being affirmative evidence on that score. What seems to be clear is that the spouse applicant has no older siblings. But in her statement of 3 June 1992 she has made reference to "brothers", and in the interview notes of 18 January 1993 again there is some reference to siblings by the principal applicant, and by the spouse applicant to her being the "eldest" child. That material, as later explained, may be equivocal; that is the complexion which the applicant through the solicitor's letter of 19 December 1995 sought to put on it. There is also no evidence from the neighbour or other sources to suggest that she has had any contact with any younger brothers or sisters since 1975. On this topic, the requests for further documentation may have elicited some relevant information. The failure of the applicant to present such materials, if they were available, may enable the Tribunal more readily to accept certain other evidence or more readily to draw inferences from such evidence. I have already observed that, despite their timing, the applicant did not contend that the untranslated SYLL of 12 April 1993 was responsive to the request for information. I do not know what, if anything, the Tribunal made of it. The SYLL of 20 December 1995 sent to the Tribunal on 30 January 1996 is not referred to in its reasons. I do not know if it was accepted as being responsive to the requests for information, but insufficient, or was regarded as not responsive to those requests. In written submissions, the respondent contended that it did not relate to a time prior "to her parents' departure" and was not signed by the police, so that it did not respond to the request. I do not know if that was the view the Tribunal took. The Tribunal has not indicated whether it had other information that a 1975 SYLL or household register was, or should have been, procurable. It has not indicated what view it took of the material tending to suggest that, at least since 1975, the spouse applicant had not had contact with any siblings. It has not indicated. Its reasons do not show whether it was on this aspect that it regarded the spouse applicant as having overseas near relatives, or more accurately as not being satisfied that she has no overseas near relatives. On this aspect, I am not persuaded that the Tribunal fell into error, other than in failing to provide reasons in accordance with s 358 of the Act. It is however that very failure which makes it difficult to fairly address the applicant's contention. As I have determined, in respect of other matters, that the application should succeed, it is not necessary to further consider the appropriate remedy on this limited aspect. Even if I were not to allow the amendment of the orders nisi, it would be a surprising outcome that the failure to give reasons would result in the decision being unable properly to be reviewed where reasons properly given would reveal whether or not the Tribunal fell into the error complained of.
The final complaint is based upon the Tribunal's alleged error in requiring the applicant to satisfy it that the spouse applicant has no overseas near relatives. As the respondent contends, the starting point is s 24(3) which provides:
"Where it appears to the Minister that an applicant for a visa other than an exempt visa is, under the regulations, entitled to be granted a visa of the class concerned, then:
(a) [after the applicant has provided current information]
(b) if and only if the Minister becomes satisfied that there has been no material change in the applicant's circumstances since the application was made, the Minister shall, subject to section 28, grant the visa."
I was also referred to reg 34A(1), (1A) and (2) of the 1989 Regulations. Regulations 34A(1) and (2) provide in the circumstances that an applicant for a visa "must satisfy" the prescribed criteria in relation to the relevant class of visa both as at the time of the application and at the time the decision is made in relation to the application. In my view that regulation does not impose any particular legal onus either upon a visa applicant or upon the respondent. It is no more than a provision which identifies the times at which the visa applicant must meet the criteria prescribed. The expression "must satisfy" in context means simply "must meet" as a matter of fact, rather than to impose any onus of proof. Similarly, in my view, reg 41(1) to which I was also referred, does no more than assert the entitlement of a visa applicant to a visa of a class sought if that person satisfies, ie. meets as a matter of fact, the relevant prescribed criteria. Neither of those regulations are directed specifically to the definition of "overseas near relative" in reg 9. It would have been easy for the regulations, if it were so intended, to impose a legal burden of proof of certain matters upon a visa applicant, but those regulations do not explicitly set out to do so. Of course, as a matter of practicality and common sense, a visa applicant should adduce material to the Tribunal; I do not intend to suggest that the Tribunal must itself pursue enquiries where it is appropriate for the parties themselves to do so: eg. the observations of Davies J in Dharam Raj v Minister for Immigration and Ethnic Affairs (18 July 1996, unreported); Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284.
However, in my view, the Tribunal did not purport to impose a legal onus of proof upon the applicant. Under reg 9(2), if the spouse applicant had an overseas near relative in Vietnam, the principal applicant was disqualified from being a remaining relative. The Tribunal expressed itself as being unable to "make a positive finding" that the spouse applicant had no such overseas near relatives. It did not thereby assert that the applicant, or the principal applicant, had a legal onus of proving that the principal applicant was not disqualified under reg 9(2). The Tribunal, upon its review, stands in the place of the respondent: s 349. Upon the material before it, it had to reach a conclusion as to whether the principal applicant was a remaining relative under reg 9, which meant in turn that it had to reach a conclusion as to whether the spouse applicant had any overseas near relatives in Vietnam. It expressed itself as being unable, on the material before it, to reach a conclusion favourable to the principal applicant on that latter question. In effect, its reasons indicate that it did not appear to the Tribunal under s 24(3) that the principal applicant was entitled to be granted the visa sought because it did not appear to the Tribunal that the principal applicant was a remaining relative. It is apparent that its conclusion was not because the principal applicant was disqualified because it had positively concluded that the spouse applicant had an overseas near relative in Vietnam. It was because it did not know whether the spouse applicant had an overseas near relative in Vietnam. That is not a matter of the wrongful imposition of an onus of proof, but a statement of its inability to reach a conclusion of fact on a matter which it was required to address. Thus, I do not find error by the imposition by the Tribunal of an onus of proof upon the applicant: it is clear that the concept of onus of proof is not appropriate to administrative inquiries: see eg. McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358-359 per Woodward J and at 368-369 per Jenkinson J; Swan Television and Radio Broadcasters Ltd v Australian Broadcasting Tribunal (1985) 8 FCR 291 at 297; Nagalingam v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 191.
What is the consequence of the Tribunal being of that mind? Section 24(3) provided that where the Minister was satisfied that the criteria for a visa were met, then subject to certain matters the visa must be granted. Section 24(7) provided that where it appeared to the Minister that the applicant was not entitled to be granted the visa, then it was necessary that the visa be refused. Section 24 does not address what the Minister should do where the Minister was not of the view that the applicant was not entitled to the visa applied for, but was not satisfied that the visa applicant was entitled to the visa sought.
What then of the Tribunal's contention that it was "unable to make a positive finding" that a disqualifying factor under reg 9(2) did not exist, ie. that the spouse applicant had no overseas near relatives. The respondent contends that I should construe the Tribunal's conclusion as amounting to a finding that it did appear to the Tribunal that the principal applicant was not entitled to the visa in terms approximating s 24(7) of the Act. I do not think that is what it said. Nor do I accept the applicant's contention that, in the absence of a positive finding of disqualifying facts under reg 9(2), the eligibility for the visa should have been found to exist.
In McDonald (above, at 358), Woodward J addressed the problem in the following way:
"If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work."
His Honour was not, of course, specifically addressing reg 9. In accordance with that approach, it is necessary to address the nature of the decision confronting the Tribunal in the present case. That is also consistent with the conclusion of Jenkinson J in McDonald at 369:
"There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision. In this case the AAT would determine whether the Social Security Act 1947 (Cth), upon its proper construction, required that the applicant's pension be cancelled if she were found not to be permanently incapacitated for work, or required that the pension be cancelled unless she were found to be permanently incapacitated for work. In the former case the Tribunal's lack of persuasion that permanent incapacity did not exist would preclude cancellation. In the latter case the Tribunal's lack of persuasion that permanent incapacity did exist would result in cancellation. An application of the same principles by a court in resolution of the same dilemma is to be found in Maher-Smith v. Gaw [1969] V.R. 371. In a court the principles are expressed in terms of the onus or burden of proof. When those principles are applied in an administrative tribunal, there may be risk of misconception if the curial modes of expression are employed."
An illustration of the operation of such principles is provided in Lodkowski v Comcare (Goldberg J, unreported, 5 March 1998), where the administrative decision-maker had said that it was not satisfied that the applicant continued to suffer a compensable injury after a certain date. As the legislation prescribed that state of fact as necessary to establish the entitlement, the application failed.
Thus it is necessary to look more carefully at the way reg 9 is expressed. The Tribunal has taken the view that the inability to be satisfied of the absence of any overseas near relatives is, on the proper construction of reg 9, something which then leads to the view that the Tribunal must refuse to grant the visa sought. If that is correct, then there is nothing in the point in favour of the applicant. If it is not correct, an error of law will be shown to exist which will itself provide a ground for review of the decision under s 476(1)(e).
This case is not like the circumstances confronting Foster J in Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275. In that case, Foster J concluded that the Refugee Review Tribunal's failure to decide matters essential for the proper disposition of the visa application constituted a failure to accord "substantial justice" as required by s 420 of the Act, and therefore was reviewable under s 476(1)(a). Unlike the present, the Tribunal there had simply failed to address the relevant material to consider what findings it would make on two particular and relevant topics to the visa applicant's status.
In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the court (Dixon CJ, McTiernan, Webb, Fullagar and Kitto JJ) explained the approach to the construction of legislation containing provisos as follows:
"When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter: . . ."
In relation to the proper approach to reg 9(2), I first return to s 24(3) of the Act. It relevantly requires that it appear to the respondent, and on review to the Tribunal, that the principal applicant is, under reg 9, entitled to be granted the visa sought. Although reg 9 is structured firstly with the positive matters required to be found, and then with the disqualifying matters if they are found, in my view they reflect a compendious set of matters of which the respondent, or on review the Tribunal, must be satisfied. They relate to two understandably relevant matters to serve the purpose of the class of visa in question: the presence of close family in Australia, and the absence of close family in the country of citizenship or of residence of the visa applicant. The disqualification as expressed is, in my view, but one of the two relevant states of affairs which reg 9 recognises as significant. In a case where an issue as to whether there is an 'overseas near relative' arises, it is my conclusion that the respondent or, on review, the Tribunal is directed by reg 9 that the visa applicant is not entitled to be granted the visa sought unless the respondent or the Tribunal is satisfied, amongst other matters, that there are no overseas near relatives. If it is not so satisfied, reg 9 will operate so as to disqualify the visa applicant from eligibility for that visa.
Accordingly, on this aspect of the contentions, I do not find that the applicant has made out the ground of review asserted.
AMENDMENT OF THE ORDER NISI
There is no doubt that the High Court could amend the order nisi granted on 18 June 1997: High Court Rules, O 55 r 11. Upon remitter, under s 44(1) and (2A) of the Judiciary Act, the applicant contends that this Court may amend the grounds of the order nisi in the manner sought. Order 55 r 11 empowers the High Court to amend the order nisi as "necessary for the advancement of justice". It would be incongruous and ironic if, upon remitter, this Court could not do likewise even if it regarded such amendment as necessary for the advancement of justice. Nevertheless, it is the contention of the respondent that it is unable to do so.
Section 44(1) of the Judiciary Act directs that, upon remitter to this Court and subject to any directions of the High Court, further proceedings in the remitted matter shall be as directed by this Court. It is clear that such remitter is not to enhance or diminish the rights of one or other of the parties to the litigation: Robinson v Shirley (1982) 149 CLR 132 per Brennan J at 136. It is to facilitate the course of the litigation.
Once this Court has jurisdiction to entertain the matter by reason of the remitter, in my view this Court may then apply its rules to matters of practice and procedure as appropriate. It may make Rules of Court dealing with those matters; s 59, Federal Court of Australia Act 1976 (Cth). Order 51A of the Federal Court Rules expressly provides that this Court may give any directions necessary for the further conduct of the remitted matter having regard to the provisions of O 10 of the Federal Court Rules. Order 10 r 1(2)(ix) empowers the Court to grant amendments.
It is contended, however, that the jurisdiction of this Court effected by the remitter is limited to jurisdiction to hear and determine precisely the matter remitted, and only upon the grounds contained with the order nisi, so that the Federal Court Rules cannot enable this Court to permit the amendment of the order nisi itself. In my view, the following matters answer that contention, quite apart from the injustice which it may on occasion produce if it be correct, and also quite apart from its effect if correct being to limit the rights of the parties inconsistently with the purpose of the remitter.
Order 55 of the High Court Rules prescribes the procedure for obtaining an order nisi. The application to be made to the Court is to be supported by affidavit: O 55 r 1. It is a matter of practice that the affidavit exhibit the reasons for decision of the Tribunal or entity against which the order is sought and a draft order nisi, and that the affidavit assert the grounds upon which the order nisi is sought. The jurisdiction of the High Court under s 75(v) of the Constitution is not proscribed by the affidavit. The remitted matter is the matter reflected in the issue between the parties, in respect of which the High Court has determined to exercise jurisdiction. The amendment sought is to add a further ground (e) to the grounds, but in reality it seeks to add a further reason for the common ground to each of the existing "grounds", namely that the Tribunal failed to determine the application for review "according to law and the decision is thereby beyond jurisdiction". It could equally be added as a further reason in support of one of the existing grounds. The Court is seized of jurisdiction to determine whether the Tribunal's decision was determined according to law. In my view, to recognise and give effect to a reason which emerged in argument that the Tribunal's decision was not determined according to law is not to exercise a jurisdiction beyond that of which the Court is properly seized. That conclusion is in accordance with the views of Dawson J in In re O'Rielly; ex parte Bayford Wholesale Pty Ltd (1983) 151 CLR 557 at 564 and of Mason J in McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 238 on the nature of the jurisdiction of this Court upon a remitter under s 44 of the Judiciary Act. It is, in my view, also reflected in the decision of Foster J in Dinnison v The Commonwealth (1997) 74 FCR 184 where this Court, having had the proceeding remitted to it by the High Court under s 44 of the Judiciary Act, was asked to transfer the proceeding to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). Foster J decided that he had the power so to order. His Honour said at 188-189:
"I am satisfied that once a High Court matter has been remitted to this court for hearing it becomes a proceeding in this court to be determined, in all respects, in accordance with this Court's procedures and in accordance with any relevant statute law impinging upon those procedures. There is no suggestion that, once the remitter has taken effect, the proceedings have any further connection with the High Court. No interlocutory steps are to be taken in the High Court and the judgment given in the proceedings is a judgment of this Court."
Accordingly, I propose to give the applicant leave to amend the order nisi in the manner sought, that is by adding par (e) to the grounds thereof as set out above, or alternatively by adding at the end of par (a) of the grounds thereof the words:
"or because the second respondent failed to give reasons for its decision as required by Section 368(1) of the Migration Act 1958".
Nothing was put by the respondent to suggest that it would not otherwise be a proper exercise of discretion to permit such amendment if the power to do so existed.
CONCLUSION
In the light of the above reasons, it is my conclusion that the Court should quash the decision of the Tribunal and, to the extent necessary, should prohibit the respondent from giving effect to the decision of the Tribunal of 12 August 1996. The Court should also remit the matter to the Tribunal for rehearing, and in my view that rehearing should take place before the Tribunal differently constituted. If it is necessary to do so, I would direct the respondent to cause the Tribunal to rehear and determine the application for review according to law and in accordance with these reasons.
I shall hear the parties as to the formal orders to be made.
In the course of the hearing, the nature of the power of the Court to make such orders and the extent of the grounds of review available to the Court on a remitted mater were adverted to. I should make some brief observations on those matters.
Section 485(3) of the Act purports to limit the Court, where a matter has been remitted to it under s 44 of the Judiciary Act, to the powers available to it as if the matter were as a result of an application made under Pt 8 of the Act. Whatever the jurisdiction and powers of the High Court, the question arises as to whether this Court in such a matter may only review the Tribunal's decision upon the grounds specified in and confined by s 476 of the Act. In Re Minister for Immigration and Multicultural Affairs; ex parte Abebe [1998] HCA 16, 152 ALR 177 the High Court was asked to restrain the deportation of a visa applicant seeking a protection visa pending the hearing of the application for prerogative relief on grounds other than those available to the Federal Court under s 476 of the Act. The application for prerogative relief was referred to the Full Court of the High Court. This Court had determined that the visa applicant did not make out any ground under s 476 for judicial review of the decision of the Refugee Review Tribunal refusing to grant a protection visa. Gummow J, after referring to s 485(3) of the Act, said (par 11) at 180:
"In the present case, that provision operates to exclude the exercise of the remitter power for which the Parliament otherwise has made provision in s 44 of the Judiciary Act. That power of remitter is of considerable importance in facilitating the exercise by this Court of its primary and unique functions. These are, first, in the original jurisdiction, the disposition of certain matters arising under, or involving, the interpretation of the Constitution and, secondly, its function, subject to the grant of special leave, as a final court of general appeal for the whole nation. The result achieved by the Act as it now stands is to encourage the twin evils of cost and delay and, it would appear, to impede the efficient administration of the migration laws."
It is implicit in his Honour's observations that s 485(3) of the Act does validly limit the powers of this Court in this application. I have proceeded on that basis. My reasons are therefore related to the available grounds of review under s 476 of the Act. I note however that earlier Kirby J in Re Minister for Immigration and Multicultural Affairs; ex parte Abebe [1998] HCA 10, 151 ALR 711 concluded that, in the particular circumstances, there was sufficient in the visa applicant's claim that the High Court could review the decision of the Refugee Review Tribunal on grounds more extensive than those available to this Court under s 476 of the Act to warrant an injunction restraining her deportation from Australia whilst further material was presented in support of her claim. The jurisdiction of the High Court arises under s 75(v) of the Constitution, and it is a jurisdiction unaffected by the Act. Where this Court's jurisdiction arises under s 44 of the Judiciary Act, the question may arise whether s 485(3) can so limit the Court's powers. I have expressed my reasons by reference to the grounds of review available under s 476 of the Act. However, given the nature of the jurisdiction which the Court exercises upon remitter, I do not wish to be taken necessarily as accepting that s 485(3) does properly limit the Court in such circumstances in the manner it may seek to do.
It is also an arguable question whether s 485(3) does in fact, in its use of the word "powers" refer to the grounds of review under s 476 at all. Finkelstein J adverted briefly to that issue in Thambythurai v Minister for Immigration and Multicultural Affairs (16 September 1997, unreported). That case also involved a matter remitted to this Court by the High Court under s 44(1) of the Judiciary Act, to review a decision of the Refugee Review Tribunal. His Honour did not find a ground of review to have been made out in any event, so the application failed. However, he briefly discussed the import of s 485(3) of the Act. He observed, without finally deciding the question, that the word 'powers' in s 485(3) is "likely" to include the grounds upon which the Court is able to review a decision of the Tribunal and not merely the form of relief which may be granted (whether under s 481 or otherwise) when it has been shown that errors of law have vitiated the decision. I also do not need to decide that question, but I indicate that I incline to the same tentative view as that expressed by Finkelstein J.