Failure to give reasons - s 501G(1)
15 Mr Lloyd, counsel for the applicant, submitted that the Minister's selection of option (c) and his signing of Part E of the Department's brief did not amount to giving reasons for his decision. There was nothing, he submitted, in what the Minister had done to indicate whether he accepted some or all of the reasoning in the Departmental brief or had made his decision on quite different grounds. Therefore, it was submitted, the Minister had not complied with s 501G(1)(e). In Mr Lloyd's submission this failure to provide reasons constitutes a reviewable error under s 476(1)(a) of the Act. In making this submission Mr Lloyd relied on Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh").
16 Since the hearing in this proceeding, however, the High Court, in Yusuf, rejected the proposition, propounded in Singh, that a failure to make findings on material questions of fact constitutes a breach of s 430 of the Act and consequently is not a reviewable error under s 476(1)(a). In his additional submissions, Mr Lloyd attempted to distinguish Yusuf. In summary, his argument concentrated on the fact that in Yusuf there was an alleged failure by the Refugee Review Tribunal to make certain material findings of fact. There was no allegation that the Tribunal had made findings that it had failed to set out. It was thus not necessary to decide, and the majority in Yusuf did not decide, whether a failure to set out actual findings in breach of s 430 is a reviewable error within s 476(1)(a). Mr Lloyd submitted that the authority of the line of cases ending in Singh that a breach of s 430 is a reviewable error within s 476(1)(a) is not diminished by Yusuf.
17 Much of what Mr Lloyd says is undoubtedly correct. Yusuf was concerned with the consequences of a failure to make findings rather than a failure to record findings that had been made. Gleeson CJ recognised this distinction when he commented at [10]:
"There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases."
18 A failure to set out findings on material questions of fact is clearly a breach of s 430 but it is not at all clear what follows from this. As Callinan J pointed out in Yusuf at [211], not all errors of law are reviewable by the Federal Court under s 476. Gaudron J, however, commented, at [31], that:
"… there is no basis for reading s 476(1)(a) as not extending to the procedures required by s 430 of the Act."
19 Even if Gaudron J's approach were to be accepted by the High Court, the same consequence may not apply to a breach of s 501G because of s 501G(4) which states that failure to comply with s 501G, "does not affect the validity of the decision". An argument to this effect was accepted by Madgwick J in Misiura v Minister for Immigration & Multicultural Affairs [2001] FCA 133 at [28], where his Honour stated:
"There is no warrant to take an artificially narrow view of [s 501G(4)]. The intention was plainly to prevent a decision such as the present being undone for failure, among other things, to set out the reasons for it."
20 As a practical matter, it may also be very difficult to determine whether there has been a breach in a particularcase . It would appear that a majority of the High Court in Yusuf would interpret the absence of a finding on some question of fact as an indication that the decision maker made no finding on the matter and, in the words of the Chief Justice at [5]:
"that, in turn, may indicate that the Tribunal did not consider the matter to be material."
21 A similar view was expressed by Gaudron J at [37], Callinan J at [217], and in the joint judgment of McHugh, Gummow and Hayne JJ at [69] where their Honours also commented that such a failure may reveal some other basis for judicial review. Pertinently their Honours also made the following statement at [77]:
"Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made."
22 Mr Lloyd is correct in the distinction he draws between this case and Yusuf and it may be that, as a strict matter of precedent, he is also correct in his view, referred to in [16] above, that a breach of s 430 (or in this case s 501G) is a reviewable error. Nevertheless there is sufficient indication of a contrary view in Yusuf to cast doubt on the position.
23 The breach of s 501G(1)(e) that is claimed by the applicant in this case is, of course, much more extensive than a mere failure to set out a finding made on the basis of on one or more material facts. The applicant here alleges a total failure to provide the written notice as required under the section. Were that claim to be made out, it may well be reviewable by this Court. However it is not necessary for me to resolve this issue because I do not accept the applicant's contention that the Minister has failed to give reasons.
24 In my opinion Mr Smith, counsel for the respondent, is correct in contending that the brief prepared by the Department constituted sufficient compliance with s 501G(1)(e) and that it was irrelevant that that document was not prepared by the Minister personally. Mr Smith referred to the decision of Hayne J of the High Court of Australia, sitting as a single judge, in Re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001, unreported). In that case, as in this case, the only document purporting to comply with s 501G(1)(e) was a brief prepared by the Department. Hayne J stated:
"In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e). Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate - only that information, that the Minister then reached the decision which he did. In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached."
25 Although, as Mr Lloyd submitted, s 25D of the Acts Interpretation Act 1901(Cth) was not specifically drawn to Hayne J's attention, I do not accept that his Honour's views are in any way inconsistent with the provisions of that section.
26 In this case, the Department's brief to the Minister contained the applicant's personal and visa details, information relevant to the character test (see [7] above), an assessment of the applicant's character and an outline of matters relevant to the Minister's discretion. The Minister's decision is consistent with the analysis and recommendations made in the Departmental brief. Given that the Minister is obliged by s 501G(1)(e) to provide reasons for his decision, the completion of Part E by the Minister without comment leads to the conclusion that the Minister adopted the brief as a statement of his reasons. I agree with the submission put by Mr Smith that the three options set out in Part E reflect the fact that, once certain findings of fact have been made, the Minister's decision is discretionary.