The grounds of review
51 Section 476 of the Migration Act is in the following terms:
"(1) Subject to subsection (2), application may be made for review by
the Federal Court of a judicially-reviewable decision on any one or
more of the following grounds:
(a) that procedures that were required by this Act or the
regulations to be observed in connection with the making of the
decision were not observed;
(b) that the person who purported to make the decision did not
have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the
regulations;
(d) that the decision was an improper exercise of the power
conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error
involving an incorrect interpretation of the applicable law or
an incorrect application of the law to the facts as found by the
person who made the decision, whether or not the error
appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual
bias;
(g) that there was no evidence or other material to justify the
making of the decision.
(2) The following are not grounds upon which an application may be
made under subsection (1):
(a) that a breach of the rules of natural justice occurred in
connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so
unreasonable that no reasonable person could have so
exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power
is to be construed as being a reference to:
(a) an exercise of a power for a purpose other than a purpose for
which the power is conferred; and
(b) an exercise of a personal discretionary power at the direction
or behest of another person; and
(c) an exercise of a discretionary power in accordance with a rule
or policy without regard to the merits of the particular case;
but not as including a reference to:
(d) taking an irrelevant consideration into account in the exercise
of a power; or
(e) failing to take a relevant consideration into account in the
exercise of a power; or
(f) an exercise of a discretionary power in bad faith; or
(g) any other exercise of the power in such a way that represents
an abuse of the power that is not covered by paragraphs (a) to
(c).
(4) The ground specified in paragraph (1)(g) is not to be taken to have
been made out unless:
(a) the person who made the decision was required by law to
reach that decision only if a particular matter was established,
and there was no evidence or other material (including facts of
which the person was entitled to take notice) from which the
person could reasonably be satisfied that the matter was
established; or
(b) the person who made the decision based the decision on the
existence of a particular fact, and that fact did not exist."
52 The ground specified in subs (1)(a) has undergone something of a transformation. At one time, it was thought that the obligation of the Tribunal, found in s 420(2)(b), to act according to substantial justice and the merits of the case, provided a basis for contending that a procedure required by the Migration Act had not been observed. See Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. The High Court of Australia in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 made it clear that the obligation in s 420(2)(b) is not a procedure required to be observed, for the purposes of s 476(1)(a). It was then thought that the requirements imposed by s 430(1) on the Tribunal to prepare a written statement that sets out its decision, the reasons for its decision and its findings on any material question of fact, and refers to the evidence or other material on which the findings of fact were based, contained a procedure required by the Act, so that a failure to make findings on issues raised in a review was enough to establish the ground in s 476(1)(a). See Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (2000) 98 FCR 469. The High Court of Australia in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 expressly overruled Singh. At [73] - [75], McHugh, Gummow and Hayne JJ (with whom Gleeson CJ expressed his agreement) said:
"It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider. In that regard it is important to recall, as Brennan J said in Attorney-General (NSW) v Quin [(1900) 170 CLR 1 at 35-36]:
The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison [1 Cranch 137 at 177; 5 US 137 at 177 (1803)]: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, 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 repository of the relevant power and, subject to political control, for the repository alone.
This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the
process of making the particular findings of fact upon which the decision-maker acts.
As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution. In Minister for Immigration and Ethnic Affairs v Guo [(1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ], six members of the court said:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
If the tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past). It is not accurate, however, to say that the tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well-established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations."