The inadequacy of the reasons & findings provided
38 The question as to any adequacy in the reasoning of the Tribunal arose not before the primary Judge but only on appeal. An application was made by Counsel for the Appellant to amend the existing Further Amended Notice of Appeal to raise this additional argument. Leave to raise a new argument on appeal, including an "appeal" from a decision of the Tribunal, may be granted in circumstances where it is in the interests of the administration of justice: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46], (2004) 238 FCR 588 at 598 per Kiefel J (as her Honour then was), Weinberg and Stone JJ. See also: Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [90], (2016) 243 FCR 220 at 47 per Flick and Rangiah JJ. As but one instance of where leave may be granted are those cases in which the question sought to be raised is a question as to whether the Tribunal has applied "the true construction and application of legislation": Repatriation Commission v Warren [2008] FCAFC 64 at [78], (2008) 167 FCR 511 at 530 per Lindgren and Bennett JJ. Leave to amend should be granted. The question to be resolved depended exclusively upon a review of the Tribunal's reasons construed by reference to legislative provisions.
39 Given the conclusions already reached, it is unnecessary to resolve this additional Ground. It is nevertheless prudent to express some brief reasons to resolve that question in favour of Mr Montenegro.
40 In doing so, it is necessarily recognised that this further Ground calls forth perhaps but a different way of expressing the same conclusions as those reached in respect to the first two issues.
41 The starting point for the argument is s 43(2) and (2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (the "Administrative Appeals Tribunal Act") which provide in relevant part as follows:
(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.
…
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
A failure to comply with s 43(2) raises a "question of law" for the purposes of the appeal provisions in s 44 of the Act: Ekinci v Civil Aviation Safety Authority [2014] FCAFC 180 at [111] to [116], (2014) 319 ALR 1 at 31-32 per Bennett, Nicholas and Griffiths JJ. And s 43(2B), it will be noted, imposes an obligation to not only provide "reasons" but also an obligation to include the Tribunal's "findings on material questions of fact". Both obligations are equally as important: Comcare v Davies [2008] FCA 393 at [34], (2008) 173 IR 294 at 303 per Flick J.
42 The general principles surrounding the application of s 43(2B) are relatively well-settled. "Sufficient reasons", it is thus accepted, must be provided "to make the system of appeals effective": Roncevich v Repatriation Commission [2005] HCA 40 at [62], (2005) 222 CLR 115 at 135 per Kirby J. Similarly, it is well-accepted that "[o]ne of the central objects behind the statutory obligation to give reasons is to expose the tribunal's reasoning process which may facilitate appeals on a question of law or judicial review": Summers v Repatriation Commission [2015] FCAFC 36 at [110], (2015) 145 ALD 30 at 60 per Kenny, Murphy and Beach JJ. It must thus be possible "to discern from the reasons given the actual reasoning process adopted": Comcare Australia v Mathieson [2004] FCA 212 at [61], 79 ALD 518 at 531 per Weinberg J. When a Judge of this Court, French J similarly observed that the "tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case": Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779 at [40], (2006) 91 ALD 103 at 111.
43 Counsel for the Respondent contended that s 43(2B) had in fact been complied with by the Tribunal, at least on a proper reading of the reasons provided. Those reasons, Counsel emphasised, were to be read not with "an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Although recourse is oft had to these observations by those seeking to deny the existence of error, it is equally well-established that the eyes of a reader "should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case": Soliman v University of Technology, Sydney [2012] FCAFC 146 at [57], (2012) 207 FCR 277 at 295-296 per Marshall, North and Flick JJ. See also: FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [91] per Thawley J; Lifestyle Investments 1 Pty Ltd v Commissioner of State Revenue [2020] VSC 397 at [104] per Nichols J.
44 Although it may readily be accepted that reasons for an administrative decision must be construed in a practical and common sense manner, and in recognition of the fact that those writing such reasons may well have experience and qualifications in areas of discipline other than the law, the difficulty in the path of Counsel for the Respondent is that it is the reasons and findings of the decision-maker which must always remain the focus of scrutiny. A course to be shunned is a course whereby Counsel for a decision-maker seeks to opportunistically select from the entirety of the reasons and findings provided those statements which could potentially have founded the ultimate conclusion, and seeks to then rely upon those statements to assert an absence of error or "material" error. Such a course divorces those statements from the context in which they have been made, and potentially seeks to attribute to those statements a course of reasoning different to that of the decision-maker. It is not for Counsel to propose a possible course of reasoning different to the one pursued by the decision-maker. It is not the reasoning process of Counsel which assumes relevance. The task is forever to scrutinise the reasons in fact provided by the decision-maker to ascertain whether those reasons and those findings on "material questions of fact" sufficiently set forth the reasoning process of the decision-maker. If the course of reasoning is not so disclosed, there has been non-compliance with s 43(2B). And that is so even if Counsel could propound a course of reasoning different to that in fact pursued by the decision-maker which could have arrived at the same result, given the findings made.
45 The question as to any potential inadequacy of the reasoning process may again be tested by reference to whether the Tribunal made its decision "in accordance with" the Administration Guidelines and in particular "in accordance with" para 3.5.1 of those Guidelines.
46 Even if the findings of fact in paras [12], [14], [15], [18], [22] to [24] and [31] of the Tribunal's reasons could found a conclusion that a "reasonable person would consider" that the "situation" was one which was "not due to the person's action or inaction", the course of reasoning leading to such a conclusion - it is respectfully concluded - has not been set forth by the Tribunal. It is thus far from self-evident, for example, that the course of reasoning pursued by the Tribunal in the present proceeding was that the "situation" in which the Appellant found himself was one in which:
he had commenced his course and submitted an essay and a request for exemption (para [12]);
he had submitted an application for special consideration (at para [14]);
he was unable "to attend his studies … prior to … the cut-off period" (at paras [18] and [22]); and
that application had not been resolved.
If the course of analysis be paused at that point, it is far from self-evident that what the Tribunal was doing in those paragraphs was directing its attention to the Facts of relevance to identifying the "situation" in which the Appellant found himself. Albeit not decisive, the statements in those paragraphs of the Tribunal's reasons do not purport to be the Facts to which the Discussion is thereafter addressed. Even if it were nevertheless to be assumed that the Tribunal was there directing its attention to para 3.5.1 and the reasoning discipline imposed by that paragraph, the decision-making task thereafter to be pursued was that of identifying those facts of relevance to what a "reasonable person would consider". But there is no finding of fact directed to that issue. In particular the following paragraphs fall short of such a finding, namely:
para [23] - that paragraph simply stating that it was "understandable" for the Appellant not to withdraw; and
para [24] - that paragraph simply stating that the Appellant "took a chance" and stating that the Appellant did so "with his eyes wide open".
Those paragraphs are not identified by the Tribunal as findings as to the Facts (at paras [8] to [19]) but are, relevantly, observations all directed to the steps being taken (or not taken) by the Appellant. None of those findings are directed to whether a "reasonable person" in the situation confronting the Appellant would have done likewise, and the conclusion as to "the prudent course" in para [31] is likewise directed to the steps taken by the Appellant. Paragraph [30] may perhaps be taken as a cryptic encapsulation by the Tribunal of the Respondent's submissions - but it certainly contains no "finding".
47 The same analysis of the Tribunal's statement of findings and reasons can be undertaken in respect to the consideration given by the Tribunal to para 3.5.5 of the Guidelines. There is, accordingly, no finding of fact directed to whether the "situation" confronting the Appellant was "unusual, uncommon or abnormal".