Section 476(1)(a) and Section 430
101 As their Honours, the majority, pointed out in Xu, the ground in s 476(1)(a) is concerned with an act done in breach of a condition regulating the exercise of a statutory power. Section 430 does not involve anything done in the process leading to the decision, which is made under s 415. Section 430 cannot be said to concern a procedure which might possibly have had some bearing on the decision reached or the fairness accorded to the applicant in the process towards decision.
102 An example of a procedure connected with the making of the decision, commonly referred to in connection with the ground of review found in s 476(1)(a), is the process of consultation required prior to a decision: see Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 44 ALD 1; R v Commission for Racial Equality; ex parte Hillingdon London Borough Council [1982] AC 779. In the Migration Act, there are certain statutory procedures which are to be followed. Some of these are referred to above. The Tribunal may obtain any information, provided it then has regard to it in the process of making its decision (s 424(1)); the Tribunal must give the applicant particulars of any information that it considers may provide a reason for affirming the decision under review and invite the applicant to comment upon it (s 424A); the applicant must be invited to appear before the Tribunal and present evidence and arguments (s 425); and the Tribunal is able to summons a person to give evidence or produce documents (s 427(3)). Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 considered that they were among the procedures to which s 476(1)(a) refers. One may then compare the steps involved in preparing a written statement for the parties, setting out how the decision was arrived at. In my view, a procedure required by the Act has the "connection" to which paragraph (1)(a) refers if it is one which precedes the decision and is part of or concerns the process by which the decision is reached, which is to say the "making of the decision" and not the decision itself. A statement of reasons records or evidences the reasons: Taveli, 179-180.
103 It may be thought that the process of reasoning to a decision necessarily involves, or should involve, the steps referred to in s 430(1). A distinction may, however, be drawn between making some notes of the process undertaken and reducing it to a formal statement intended for the information of the parties, which is what s 430(1) is concerned with. The making of a decision has been described as a mental process: Evans v Friemann (1981) 53 FLR 229, which may be communicated orally or in writing and may precede the communication or manifestation of it. The objective of the discipline of a reasoned approach identified in Comcare Australia v Lees (1997) 151 ALR 647, and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 [117] may be met without the preparation of the final statement. In any event, it seems to me that the Act treats the statement as a separate and distinct task from the decision. The decision is made. The statement is prepared. If the parties are present when the decision is handed down, they are given a copy of the statement (s 430B(5)) and if they are not, they are later provided with it (subs (6) and (7)). A similar view, as to the separateness of a decision and the notice of it, was taken in Commonwealth of Australia v Human Rights and Equal Opportunity Commission & Ors (1999) 167 ALR 268 at 272-3.
104 I have referred above to some of the procedures having a connexion with the making of a decision to which s 476(1)(a) may be taken to refer. It will be seen that they are also concerned with affording procedural fairness. Non-compliance with these provisions may result in an order setting aside the decision. Section 476(1)(a) may then be seen to create an exception to the exclusion generally of denial of natural justice as a ground of review: s 476(2)(a). If there be ambiguity in s 476(1)(a) (although it is my view that there is not) about whether it refers to procedures occurring after the making of the decision itself and connected only by the fact that it records the process of the making of the decision; as well as to procedures leading up to or forming part of the process to decision itself, as discussed above, resort may be had to the Explanatory Memorandum: s 15AB Acts Interpretation Act 1901. It explains that s 476(1)(a) is intended to provide similar protection to that afforded by natural justice principles, but by reference to an identified set of procedures. It refers, by way of example, to s 424A. Whilst the giving of reasons is another consideration of the requirements of natural justice, the Explanatory Memorandum states plainly that s 476(1)(a) is concerned with procedures in the "decision-making process".
105 It does not follow, in my view, that there is no remedy available in the event that the obligations imposed by s 430 are not fulfilled. It would, however, be by way of a mandatory order, obliging compliance and would not be one setting aside the decision on account of the breach. The Migration Act has no equivalent provision to s 13(7) Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act"), by which the Court may require the giving of further and better particulars of findings, or the evidence upon which it is based. It is not necessary to examine that provision, but merely to observe that it would not appear to provide a basis for finding a ground of review in s 476(1)(a) but rather to the contrary, given that it was found necessary to make express provision in the ADJR Act for it, despite the presence of s 5(1)(b), and that an order setting aside the decision was not thought appropriate. Nor, as their Honours pointed out in Xu, can one draw much from the limitations the Act has imposed on this Court's jurisdiction, with the result that only the High Court can make such an order.
106 In Repatriation Commission v O'Brien (1985) 155 CLR 422, 445-6, Brennan J in dealing with the same provision in s 43(2) Administrative Appeals Tribunal Act 1975 held that a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for an administrative decision does not, without more, invalidate the decision or warrant its being set aside. If one was able to infer that there has been a failure to exercise power according to law, for instance taking into account irrelevant considerations, the Court may set it aside. The result is not, however, invalid because of the failure to state reasons, but because there was a failure to make a decision according to law. A number of the cases referred to above have proceeded upon the footing that a failure to provide adequate reasons amounts to error of law itself, justifying the decision being set aside. Such an approach tends to confirm the appropriateness of s 476(1)(a) as a ground for review, since the only order which it would seem could be made when the ground is made out, would be one setting the decision aside (s 481(1)(a)). Section 481(1)(d) does provide for an order directing that something be done, but it is referrable only to the parties, not the Tribunal. The view that breach of s 430 discloses error of law is derived from the decision of a Full Court in Dornan v Riordan (1990) 24 FCR 564. Finkelstein J in Comcare v Lees, 656-9 concluded that the Court was in error in not accepting the reasoning of Brennan J as a correct statement of the law. I respectfully agree with his Honour for the reasons there given. An unfulfilled statutory duty would seem to require that the omission be corrected. If the problem is not the omission itself, but what it tells you about the exercise of the power, it is then that one turns to the grounds as may be available for review.