Section 485 should also be set out:
'(1)In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
(2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.
(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.'
The question argued before the Court was whether it is open for the applicant to set aside the decision of the Tribunal if the Tribunal has acted otherwise than according to substantial justice and the merits of the case and thus acted contrary to the charter of s. 420(2). It was put that such a failure constitutes the non-observance of procedures required by the Act to be observed in connection with the making of the decision, and thus falls within s. 476(1)(a) as a ground of review, or alternatively within para. (c), meaning that the decision was not authorized by the Act.
Olney J. considered a similar submission in Velmurugu v Minister for Immigration and Ethnic Affairs, unreported, 23 May 1996, NG405 of 1995. As his Honour's judgment makes clear, the applicants before him were in effect seeking a review on the merits of the case. His Honour said that this did not involve a 'procedure' and thus could not give rise to review on the ground described in s. 476(1)(a).
North J. considered s. 420 and s. 476(1)(a) in Wannakuwattewa. North J. said that he did not need to determine whether s. 420 established procedures for the purposes of s. 476(1)(a). In a later decision of North J. (Zakinov v Gibson, VG764 of 1995, unreported, 26 July 1996), his Honour referred to Olney J.'s judgment in Velmurugu and the earlier judgment of Lehane J. in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693, and his
Honour agreed with both judgments. Particularly, his Honour expressed agreement with Olney J.'s view in Velmurugu concerning the inter-relation of ss. 420 and 476(1)(a) that a challenge to a decision on the merits does not involve a contravention of any procedure set out in s. 420, and thus cannot give rise to a review on the ground described in s. 476(1)(a). In Zakinov North J. said at 15 that the applicant was seeking a review on the merits, arguing that the opinion of a Mr Dunn, psychologist, had to be accepted and in failing to accept it unconditionally the Tribunal failed to accord it sufficient weight. His Honour said that that argument did not identify any failure of the Tribunal to observe the procedures required to be observed by the Act.
In the present case the applicant is not seeking a review on the merits. The applicant has confined his attack on the Tribunal's decision to the conduct which, as previously particularized, is said to indicate that the Tribunal had not acted according to substantial justice and the merits of the case. The present case is thus distinguishable from these judgments of Olney J. and North J.
Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s. (2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review
mechanism that is fair, just, economic, informal and quick (s. 420(1)).
It has not been established that the Tribunal member failed to act according to substantial justice or failed to act fairly when the proceeding is viewed overall. As I said earlier, there were moments when some comments made by the Tribunal were somewhat unfortunate, and it would have been better if they had not been made. However, it is easy to be wise after the event, with the benefit of hindsight. It must be remembered that the Tribunal could be excused for a measure of exasperation in the light of certain parts of the evidence given by the applicant. Overall, I am not persuaded that substantial justice was not afforded the applicant.
If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s. 476(1)(a), the procedure being to act according to substantial justice in reviewing a decision.
It was no part of the applicant's case to challenge as a separate ground of review the conduct of the Tribunal member as conduct leading to a decision.