Hunt v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Immigration Review Tribunal ("the Tribunal") made on 14 January 1998 refusing the grant of a Class AY Subclass 104 - Preferential Relative (Migrant) Visa ("remaining relative visa") to Keith John McFadyen ("McFadyen"). The applicant ("Mrs Hughes") is the mother of McFadyen. McFadyen is twenty-five and was born in Greenock, Scotland, of Scottish parents. McFayden's father was born in 1953 and his mother in 1954. They were married in Greenock in 1972. McFadyen was the elder of two sons of the marriage. His parents separated in 1981 when McFadyen was eight and his brother two. In May 1981 Mrs Hughes obtained an order from a court in Greenock granting her custody of McFadyen and his brother and directing McFadyen's father to pay weekly maintenance for Mrs Hughes and the children. The order recorded the address of McFadyen's father as "C/o McGready" in Greenock. McFadyen's father did not comply with the terms of the order in respect of the payment of maintenance and it appears that he had no contact with his children after he and Mrs Hughes separated. McFadyen's parents were divorced in 1984. In the divorce decree the recorded address for McFadyen's father was "care of Williams" in Greenock. In 1986 Mrs Hughes remarried. A son was born of that union in 1989. In about 1991 Mrs Hughes and her husband made application for permission for the family to migrate to Australia. The application was accepted in April 1992. Separate visas, described as Class 105 - Resident Visa, were granted to McFadyen and to Mrs Hughes under the Act and the Migration Regulations 1989. Details of the visa granted to McFadyen were not included in the material put before the Court, but it may be assumed that it was in similar terms to the visa issued to Mrs Hughes on 28 April 1992. That visa was valid until 6 September 1992 for "initial travel as a migrant", and until 6 September 1995 for multiple re-entry into Australia. The visa issued to Mrs Hughes included McFadyen's brother and step-brother. It was a condition of that visa that the persons nominated in the visa not make "initial entry" ahead of Mr Hughes. In August 1992 the family, other than McFayden, left Scotland and travelled to Australia. Shortly before they departed McFadyen decided that it would be in the family's interests if he remained in Scotland. At that time McFadyen, then 19, was in conflict with his step-father who, whilst under the influence of alcohol, displayed hostility towards McFadyen. After the family left for Australia McFadyen had no contact with relatives in Scotland. His uncles, aunts and cousins lived in Australia. Four months after arrival in Australia Mr and Mrs Hughes separated because of Mr Hughes's dependence on alcohol and irrational conduct. They did not resume cohabitation. Mrs Hughes obtained regular employment, maintained the family and acquired a family home from her earnings. Mrs Hughes and her sons became Australian citizens in October 1996. Her marriage to Mr Hughes was dissolved. When McFadyen learned that his mother and step-father had separated he decided to try and rejoin the family and, on a date not revealed in the papers before the Court but before 6 September 1995, applied for a visa to travel to Australia for "a one year working holiday". The application was refused. Whether, instead, McFadyen could have asked the Minister to set another date for effecting "initial travel as a migrant" under the visa already granted to him in 1992, was not addressed. If, as appears to be the case, the date for "initial travel" was not fixed by regulation but was set in the Minister's discretion, perhaps the Minister retained a discretion to extend that date during the period of the visa, if satisfied by the holder of the visa that circumstances existed which made it appropriate to do so. After the application for a visitor's visa was refused preparation of an application for permission for McFadyen to migrate to Australia was commenced. On 4 September 1995 Mrs Hughes signed an undertaking to sponsor the migration of her son to Australia. An application to migrate, on a remaining relative visa, was lodged in June 1996 and refused the following month. In August 1996 Mrs Hughes applied for departmental review of the decision to refuse the grant of a visa to her son. In April 1997 it was decided on that review that the application for a remaining relative visa be refused. In May 1997 Mrs Hughes applied to the Tribunal for review of that decision. On 14 January 1998 the Tribunal decided that the requested visa not be granted to McFadyen. Whilst the decision on the application to migrate was being considered or reviewed, McFadyen also applied for a visa to permit him to travel to Australia as a visitor. The application was granted. McFadyen travelled to Australia in late 1996 and remained until August 1997 under the terms of that visa. In that time he resided with his mother and provided assistance to Mrs McFadyen in running her household. Under s 29 of the Act the Minister is given a general power to grant a non-citizen permission, to be known as a visa, to travel to and enter, and/or remain in Australia. Section 31 of the Act states that there are to be prescribed classes of visas and that the regulations may prescribe criteria for visas of a specified class. Sections 40 and 41 of the Act state that the regulations may provide that visas of a specified class may only be granted in specified circumstances and be subject to specified conditions. Section 65 provides that after considering a valid application for a visa the Minister is to grant the visa if satisfied that, inter alia, the criteria prescribed for it by the Act, or the Regulations, have been satisfied. If not so satisfied the Minister is to refuse to grant the visa. A "valid application for a visa" is one which complies with formalities set out in ss 45, 46 of the Act. Regulation 2.04 of the Migration Regulations 1994 ("the Regulations") provides that for the purposes of s 40 of the Act the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria of a "relevant Part" of Schedule 2 of the Regulations are the circumstances set out in that "Part". Schedule 2 of the Regulations has no division described as a "Part" but is divided into provisions with respect to the grant of subclasses of visas. The "relevant Part" in this case appears to be the provisions set out in the Schedule under the heading "Subclass 104 - Preferential Family". The criteria to be satisfied under Subclass 104 are set out in item 104.2 "Primary Criteria". Item 104.4 "Circumstances Applicable to Grant" states that the applicant must be outside Australia when the visa is granted. The only criterion or circumstance in issue in this matter is whether McFadyen is a "remaining relative" for the purpose of par 104.211(2)(a) of item 104.2. Regulation 1.15 defines a "remaining relative" as follows: "1.15(1) An applicant for a visa is a remaining relative if the applicant has a relative who: (a) is: (i) a brother, sister or parent; or (ii) a step-brother, step-sister or step-parent; of the applicant; and (b) is: (i) an Australian citizen; or (ii) an Australian permanent resident; or (iii) an eligible New Zealand citizen; and (c) is usually resident in Australia; unless the applicant is disqualified under subregulation (2). (2) An applicant is disqualified if: (a) the applicant or the spouse (if any) of the applicant: (i) usually resides in the same country, not being Australia, as an overseas near relative; or (ii) has had contact with an overseas near relative during a reasonable period preceding the application; or (b) the applicant and the spouse (if any) of the applicant together have more than 3 overseas near relatives; or (c) the applicant is a child who: (i) has not turned 18; and (ii) has been adopted by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (in this paragraph called 'the adoptive parent') while overseas; but, at the time of the application, the adoptive parent has not been residing overseas for a period of at least 12 months. (3) In this regulation, 'overseas near relative' means a person who is: (a) a parent, brother, sister or non-dependent child; or (b) a step-parent, step-brother, step-sister or non-dependent step-child; of the applicant or of the spouse (if any) of the applicant but is not a relative of a kind referred to in subregulation (1)." As a person who has a parent who is an Australian citizen usually resident in Australia, McFadyen meets the requirements of sub-reg 1.15(1) unless he is disqualified under the terms of sub-reg 1.15(2). To be "disqualified" under sub-reg 1.15(2)(a)(i) McFadyen must be a person who usually resides in the same country as an "overseas near relative". Sub-regulation 1.15(3) defines "overseas near relative" as, inter alia, a parent of the applicant. In reg 1.03 "parent" is defined as including a step-parent, but it is not the intent of reg 1.15 that a step-parent stand in place of a biological parent for the purpose of that regulation. That is, if a step-parent replaces a biological parent in a family unit the expression "overseas near relative" is not to be read down to omit the replaced biological parent. (See: Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380.) The Tribunal found that McFadyen was "disqualified" under sub-reg 1.15(2). In its statement of reasons for the decision to refuse the grant of the visa the Tribunal gave the following exposition of how the decision had been made: "The evidence suggests that (McFadyen's) father continues to reside in Scotland. ... The Tribunal finds on the evidence that (McFadyen) does not meet the definition of a 'remaining relative'as set out under reg 1.15 of the Regulations. He is 'disqualified' under reg 1.15(2) because he has an 'overseas near relative' usually residing in the same country. Both (McFadyen) and his father reside in Scotland." The Tribunal's statement of its reasons was provided under s 368(1) of the Act which reads as follows: "368(1) Where the Tribunal makes its decision on a review, the Tribunal must, … prepare a written statement that: (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." Part of the purpose of s 368 is to ensure that there is transparency in the decision-making process engaged in by the Tribunal so that affected parties can understand how the material conclusions of the Tribunal have been made. It is also part of the purpose of s 368 to instruct a decision-maker that a decision must result from the application of a logical or rational process able to be displayed as such in a written statement. (See: Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88 per Sheppard J; Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 per Sackville J at 413-414.) The relevant evidence or material in this matter may be shortly stated. McFadyen's father was born in Greenock in 1953. He married McFadyen's mother in 1972 at which time both parties were residents of Greenock. They lived in Greenock thereafter until they separated in 1981. From May 1981 McFadyen's father was in contempt of the order of the Scottish court which required him to pay maintenance. He has had no contact with his family since that order. His last known address in 1984 appeared to be care of lodgings at Greenock. If an inference may be drawn from that material that McFadyen's father resides in Scotland today, the period of time that has elapsed since his whereabouts were last known (14-17 years) and the apparent intention, formed in 1981, to avoid complying with the court order made against him, do not make that inference overwhelming. A tribunal, properly instructed, may regard that material as insufficient for it to find as a fact, on the preponderance of probabilities, where McFadyen's father now resides. (See: Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 per Finkelstein J at 400.) If a tribunal were not persuaded by the material that such a finding of fact could be made then the ultimate finding of fact, that McFadyen usually resides in the same country as his father, could not be made. A finding of fact by a tribunal reflects a state of satisfaction as to likelihood based on logical deductions or inferences from probative material. In its reasons the Tribunal has stated that a fact exists, namely, that McFadyen resides in the same country as his biological father. That finding of fact was fatal to McFadyen's application for a visa. The Tribunal did not identify evidence, or material, relied upon for that finding of fact. In the context of the reasons the finding of fact appears as a statement rather than a conclusion explained by reference to logically probative material. Counsel for the Minister submitted that, as stated by this Court in Wu v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432 at 444, reasons of a tribunal are entitled to a "beneficial construction". It has been made plain in numerous decisions of this Court that reasons for decision set out by a tribunal are not to be treated as inadequate if they are not detailed or elaborate in content. As long as the reasons satisfy the requirement that they inform the parties, in plain language, how the issues for decision have been dealt with the reasons will be sufficient. Judicial review of a decision involves construing the reasons for decision in a balanced and sensible way having regard to the purpose they serve. It is not a process of dissection by which an infelicitous use of language may be isolated from its context and a ground for judicial review thereby made plausible. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.) However, a "beneficial construction" of reasons is not the application of a presumption that the decision-making process was carried out without error where the reasons do not provide a logical foundation for the decision (See: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 per Deane J at 690), and it cannot remedy a failure to comply in substance with the requirements of s 368 of the Act. Under par 476(1)(a) of the Act it is a ground for review of a "judicially-reviewable decision" (which, in this case, includes the decision of the Tribunal) if procedures required by the Act to be observed in connection with the making of a decision were not observed. Section 368 provides that where the Tribunal "makes" its decision the Tribunal must prepare the written statement referred to above. The proper construction of s 368 is that production of the written statement is part of the making of a decision by the Tribunal and not an act dehors the decision-making process. Put in another way, a decision cannot be said to have been made as required by the Act unless the requirements of s 368 are satisfied. The obligations imposed on the Tribunal by s 368 predicate the mental discipline to be followed in the making of a decision. The requirements of s 368 are a statutory "fail-safe" to protect the integrity of the decision-making processes of the Tribunal. As such they may be regarded as procedures to be observed at least "in connection with" the making of the decision of the Tribunal if not in the making of the decision. It follows from the foregoing that failure to comply with s 368 would be a failure to observe procedures required by the Act to be observed in connection with the making of a decision and would constitute a ground for review of the decision under par 476(1)(a) of the Act. (See: Bakha v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 657 per Madgwick J at 659; Raj v Minister for Immigration and Ethnic Affairs (Federal Court of Australia, Davies J, 18 July 1996, unreported, No 694 of 1996, at 13); Mohamed v Minister for Multicultural Affairs (Federal Court of Australia, Hill J, 11 May 1998, unreported, No 485 of 1998, at 14; Thambythurai v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Finkelstein J, 16 September 1997, unreported, No 998 of 1997, at 10-11)). That ground for review of a decision is provided by the Act and no question arises as to whether a failure to provide adequate reasons as required by the Act constitutes an error of law under common law principles. (cf Comcare Australia v Lees (1997) 151 ALR 647 per Finkelstein J at 656-659.) To establish the ground for review provided by par 476(1)(a) of the Act it is not necessary to show that the reasons are affected by some additional error of law. What is required is that there be a failure to observe procedures required by the Act to be observed in connection with the making of a decision and that the failure be more than insubstantial. Having regard to the principles expressed by the High Court in Wu, to meet the requirements of par 476(1)(a) a failure to comply with s 368 of the Act would need to be a default that is not an oversight of slight consequence when read in the context of the reasons as a whole. In the instant case the positive finding of fact that McFadyen's father resides in Scotland determined the fate of the application. Failure to observe the requirements of s 368 in respect of that finding would make that default more than insubstantial unless the material before the Tribunal made the finding of fact so obvious that it was unnecessary to identify the material relied upon to be able to inform an affected party of the reasoning process applied by the Tribunal. (See: Mohamed (supra) at 14.) As set out above the material before the Tribunal was not of that class and failure to refer to the material relied upon for the finding became a failure to explain how the decision was made. The fault in a failure to identify evidence or material relied upon for a finding on a material question of fact is that it may disguise a flaw in the reasoning process and, therefore, a ground for judicial review. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 366-367.) In cases where the evidence relevant to a finding on a material question of fact is minimal, or lacking probative force, and the evidence or material on which the finding is based is not referred to, it is not possible to ascertain how that evidence or material has been dealt with or how the decision is explained. In the present case the terms of the relevant regulations made the explanation important. As set out above, under the Act a visa is to be granted to an applicant who satisfies the criteria and circumstances of Subclass 104 of Schedule 2 of the Regulations. In this case the only question as to whether McFadyen met the requirements of Subclass 104 turned on whether McFadyen was a "remaining relative" as defined in reg 1.15. Under sub-reg 1.15(1) a person is a "remaining relative" if that person meets the requirements of that sub-regulation unless "disqualified" under sub-reg 1.15(2). The regulation as drawn does not include in the circumstances which define a remaining relative in sub-reg 1.15(1) a requirement that the applicant not usually reside in the same country as a near relative. The regulation provides that a person is a "remaining relative" unless it is found, under sub-reg 1.15(2), that the applicant so resides. The consequence of that difference in drafting is significant as spelt out by Jenkinson J in McDonald v Director-General of Social Security (1984) 1 FCR 354 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 of 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." Under reg 1.15 it is the establishment of the existence of a disqualifying circumstance which disqualifies an applicant as a "remaining relative" and denies that person entitlement to the grant of a visa, not the establishment of the non-existence of that circumstance which determines that the person is a "remaining relative". If sub-reg 1.15(1) had defined a "remaining relative" as a person who, inter alia, didnot usually reside in the same country as a near relative, and a decision-maker could not make that finding of fact on the material presented, power to grant the visa would be denied. Under sub-reg 1.15(1) as drawn, if a person satisfies the requirements of the sub-regulation on the facts and the decision-maker is unable to make a further finding of fact under sub-reg 1.15(2) that a person usually resides in the same country as a near relative, the requirements of sub-reg 1.15(1) will be satisfied and an obligation to grant the visa will follow if other requirements of the relevant subclass of visa have been met. It should be concluded that the form of reg 1.15 reflects a deliberate choice of drafting technique made after regard had been given to the fact that in some circumstances the regulation may work unjustly. It may have been thought that equity, and the compassionate ground on which the regulation was based, would be best served by requiring the disqualifying circumstance to be established as a fact. (See: Hunt (supra) per Gummow J at 386.) I note that in Cam Mui Chi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Mansfield J, 16 June 1998, unreported, No 692 of 1998) his Honour considered like, but not identical, provisions of the Act and the Regulations as they stood in January 1992. After determining that the application for review should succeed on other grounds, his Honour went on to consider whether the like provisions were to be construed as treating a circumstance of disqualification as a prescribed criterion to be satisfied before a person could be said to be a "remaining relative". His Honour expressed the opinion that to satisfy the definition of a "remaining relative" it was necessary to make a positive finding that a disqualifying circumstance did not exist. The differences between the former provisions and the provisions under consideration in this case are not insignificant but the similarities are sufficient to require his Honour's view to be treated as the correct construction unless I am satisfied that the proper construction of the Act and the Regulations in this case requires a different conclusion. For the reasons set out above, and following, I am so satisfied. His Honour regarded the equivalent provisions to sub-reg 1.15(1) and sub-reg 1.15(2) as "a compendious set of matters of which...the Tribunal must be satisfied" having regard to the significance of the matters set out in the equivalent to sub-reg 1.15(2). With respect to his Honour, I am unable to agree that the significance of matters recited in sub-reg 1.15(2) leads to the conclusion that those matters are to be treated as if recited in sub-reg 1.15(1) as defining circumstances. First, the draftsman has chosen to express sub-reg 1.15(2) as a proviso which describes disqualifying circumstances. The ordinary meaning of the word "disqualified" relates to termination or defeasance of a right or entitlement and that meaning is reinforced when used in conjunction with the word "unless". Second, it is the purpose of reg 1.15, as drawn, to provide general or primary definition of a "remaining relative" from which an entitlement will flow subject to defeat in any of the circumstances specified in sub-reg 1.15(2). That is, there is a general statement of who is a "remaining relative" but there is a proviso that a person will cease to be a "remaining relative" on special grounds which depend upon new or additional facts. (Vines v Djordjevitch (1955) 91 CLR 512 at 519.) The circumstances which will deny the general right to be regarded as a "remaining relative" established under sub-reg 1.15(1) are those set out in sub-reg 1.15(2). They require additional facts to be established and involve, in most cases, questions of degree or matters of judgment and temporal considerations in respect of dynamic circumstances. For example, questions whether a person "usually resides" in the same country as another; has had "contact" with another during a "reasonable period"; or has "not been residing overseas" for a period of at least twelve months. It is appropriate to conclude that it is intended that those matters be established as facts if qualification under sub-reg 1.15(1) is to be defeated and not that such a consequence ensue if those facts are not established or not positively disproved. As I have said above, some of the disqualifying events are of arbitrary effect and may cause unjust consequences in some circumstances. For example, in Hunt the applicant, who resided in the same country as her biological father, had been raised by mother and step-father and had had no contact with her biological father for twenty-three years. In Cam Mui Chi seventeen years had elapsed since the spouse of the applicant had been "fostered-out" as a child of six, the whereabouts of her parents thereafter being unknown. The preferred construction is in accord with the ordinary meaning of the words used, meets the purpose of the regulation and curtails the prospect of the regulation being applied with harsh effect upon the interests of an Australian citizen or Australian permanent resident. It follows from the foregoing that the failure to refer to evidence or material relied upon for the finding of fact that McFadyen usually resides in the same country as his father is not an insignificant omission. McFadyen was entitled to the grant of a visa if the Tribunal was unable to be persuaded by the evidence or material that a finding of fact could be made that McFadyen did so reside. The reasons of the Tribunal record that the Tribunal found that both McFadyen and his father resided in Scotland at the time the Tribunal made its decision. The reasons do not set out how the Tribunal was persuaded that the preponderance of probabilities supported such a conclusion. The only statement made by the Tribunal was that "(the) evidence suggests that (McFadyen's) father continues to reside in Scotland". That falls short of explaining how the Tribunal found as a fact that he did, and does not refer to the evidence or material on which the finding was based. As was stated by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." As noted earlier, failure to comply with requirements of s 368 may disguise application to the evidence of an incorrect interpretation of relevant provisions of an act or regulation. In this case such an error may have occurred. The Tribunal may have understood that criteria for entitlement to the grant of a visa would not be satisfied if it were not established as a fact that McFadyen did not usually reside in the same country as his father. Such a misinterpretation of reg 1.15 may have produced the assumption that he did so reside if the contrary were not established which then became translated as a finding of fact in the reasons of the Tribunal. It may be noted that such an assumption was made in each of the decisions made by the Minister's delegate and by the Migration Internal Review Office prior to the decision of the Tribunal, the following words being used in the respective reasons provided for each decision: "If the whereabouts of an overseas near relative is unknown, it is taken that the relative resides in the country where they were last known to be." Mrs Hughes contended that such an error of law had occurred in the decision of the Tribunal providing ground for review of that decision under par 476(1)(e) of the Act. Whilst the absence of adequate reasons may cause speculation that such an error had occurred, on the face of the reasons as they stand, an error to which par 476(1)(e) applies cannot be demonstrated. That is the vice for which par 476(1)(a) provides remedy. It is unnecessary to determine other grounds for review relied upon by Mrs Hughes but the following comments may be made. It was submitted that ground for review under par 476(1)(g) of the Act arose in that "there was no evidence or material to justify the making of the decision" by the Tribunal. There was no direct evidence as to the current place of residence of McFadyen's father but there was material before the Tribunal that his usual place of residence had been Scotland until 1981, and, perhaps, until 1984. An inference as to his present whereabouts may arise from that material, although not compelling. If that inference is available, any question of the strength of the inference, or whether it was the preferred inference, is irrelevant. Whatever meaning the word "justify" may have in par 476(1)(g), the terms of s 476(4) make it clear that the ground has restricted operation and does not permit examination of the sufficiency of evidence relied upon for a finding of fact. (See: Comcare Australia v Lees per Finkelstein J at 653.) It was also submitted that a further ground for review under par 476(1)(a) of the Act was provided by the failure of the Tribunal to observe procedures that the Act required the Tribunal to observe, namely, the requirement in par 353(2)(b) of the Act that the Tribunal act according to substantial justice and the merits of the case. As particularized in the application, and elaborated by counsel for Mrs Hughes in argument, this submission relied upon the inadequacy of the written statement prepared by the Tribunal for the purpose of s 368 of the Act and went no further than the ground already dealt with under the same paragraph, which relied upon non-observance of the requirements of s 368. It is unnecessary to consider the question of the relevance of par 353(2)(b) to the ground for review provided by par 476(1)(a) discussed in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505; and Thambythurai (supra)). Upon a ground of review being established the Court, in its discretion, may exercise the powers provided by s 481 of the Act. A prime consideration in the exercise of that discretion will be whether there is any utility in making an order. For the reasons set out above an order under s 481 that the matter be returned to the Tribunal for further consideration would not lack utility. It is not beyond question that reconsideration of the matter, with or without further material, would produce the same decision. Accordingly, a ground for review having been established under par 476(1)(a) of the Act the decision of the Tribunal will be set aside and the matter remitted to the Tribunal for determination according to law. It is unnecessary to consider whether the Court may direct that the matter be determined by the Tribunal differently constituted. (See: Kathiresan v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Gray J, 4 March 1998, unreported, No 159 of 1998)).The Principal Member of the Tribunal may assess whether procedural fairness requires that the application for review be considered by a fresh mind and a direction made under s 354(2) of the Act. (See: Eshetu per Davies J at 313-314.)