The First Argument
6 The applicant's first argument focused on the obligation imposed on the Tribunal by the Migration Act 1958 (Cth) ('the Act') to comply with any Ministerial directions which had been issued under the Act. Section 499(1) authorised the Minister to issue directions to persons having functions or powers under the Act as to the performance or exercise of those functions and subs (2A) provided:
'A person or body must comply with a direction under subsection (1)'
7 I set this out now because an issue arises later in these reasons as to whether a failure by a decision-maker to comply with a direction issued by the Minister results in the invalidity of the decision or merely in the decision's illegality. This turns, in part, on the language of subs (2A) and the word 'must'. For now, it is sufficient to flag the issue.
8 The Minister has issued many such directions. One of these is Ministerial Direction 56 of 21 June 2013 ('Direction No. 56'). It applies to decisions made under s 414 which is the section under which the Tribunal was reviewing the applicant's visa application. Clauses 2 and 3 were submitted by the applicant to provide as follows (and the Minister did not dispute this):
'2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
"PAM3: Refugee and humanitarian - Complementary Protection Guidelines"
"PAM3: Refugee and humanitarian - Refugee Law Guidelines"
3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.'
9 Clause 2 required the Tribunal to take account of the two guidelines mentioned in it 'to the extent that they are relevant to the decision under consideration'. Neither of these documents was put before this Court but, as will shortly be seen, this is of no moment to the applicant's argument. Clause 3 bound the Tribunal to take into account any country information assessment prepared by the Department of Foreign Affairs and Trade but, significantly, only if it was relevant.
10 The Tribunal did mention the two guidelines in its reasons for decision and also its obligations with respect to country information. The first way it did so was by an incorporating reference which appeared at [2] of its reasons, which included this statement: 'A summary of the relevant law is set out at Attachment A'. The second was Attachment A itself, which at [91] contained this statement:
'Ministerial direction
91. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - 'PAM3: Refugee and humanitarian - Complementary Protection Guidelines' and 'PAM3: Refugee and humanitarian - Refugee Law Guidelines' - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.'
11 Beyond this, however, the Tribunal did not go. It did not explain whether it dealt with the guidelines and country information at some other part of its reasons (in fact, it did not); nor did it explain whether it regarded some parts or all of the guidelines to be irrelevant to the task it was required to perform. The same is true of its treatment of the country information.
12 It was this silence by the Tribunal which formed the platform for the applicant's argument. How, so the applicant asked rhetorically, could the Tribunal have complied with the requirement that it take into account the two guidelines and country information, even if only to dismiss them as irrelevant, if it had not apparently turned its mind to them at all?
13 For his part, the Minister did not seek to suggest that the Tribunal had gone any further, at least expressly, in its reasons than the applicant submitted. But his counsel, Mr Hume, did submit that close attention needed to be paid to what might reasonably be inferred from that silence.
14 The first step, in his submission, was to attend to the nature of the Tribunal's reasons. The Tribunal was bound by s 430(1) to provide a written statement of those reasons. Relevantly it provided as follows:
'430 Refugee Review Tribunal to record its decisions etc.
(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; and
(b) sets out the reasons for the decision; and
(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.'
15 It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal's reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] ('Yusuf'). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
16 If that inference were to be drawn it would defeat the applicant's argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No. 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.
17 It might be possible to argue that the concept of materiality under s 430(1) and relevance under Direction No. 56 were in some subtle way different and that the guidelines were immaterial whilst relevant. However, such a submission was not made. Had it been made, I would not have been inclined to accept it because I doubt the stability of the distinction.
18 It follows then that if the inference suggested in Yusuf is drawn then it will be open to this Court - indeed probably required of it - to conclude that the Tribunal did consider the question of the relevance of the guidelines and the country information and decided that they were not relevant.
19 The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant's argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.
20 Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume's submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal's views on relevance which matter, not those of this Court. In any event, even if that was not so, the applicant made no attempt to point to any aspect of the guidelines or country information which he said were relevant and should, therefore, have been taken into account.
21 The first argument therefore fails. The applicant put it on a number of legal bases; for example, that there had been a failure to conduct the review required by s 414 or that it had misused its powers in doing so beyond that which could be countenanced under s 415. I do not need to assess these arguments, all of which had as their point of departure the allegation that the Tribunal had failed even to consider whether there were relevant parts of the guidelines or relevant elements of country information. For the reasons already given, I do not accept that contention. Consequently, the first argument must fail. In that circumstance, it is not necessary to explore further the issue adverted to above at [7] as to whether a breach of s 499(2A) involves a jurisdictional error. The Minister submitted that the word 'must' was not fatal, citing Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [36]. This is a difficult question. I prefer to leave it for a case where it arises. There are some complex issues within it, such as the significance of the fact that directions are disallowable instruments, the extent to which a direction may pick up an external document such as the guidelines and, if it can, whether such a document may be amended at a later time, thereby thwarting Parliamentary scrutiny. All of these are related to the issue of what non-compliance with s 499 means.
22 I should record that whatever else might have happened with the first argument, I would not have permitted it to be put in this Court in relation to proposed particular (e). Particular (e) was as follows:
'e. The second respondent failed to inquire about whether a country information assessment by the Department of Foreign Affairs and Trade for Burundi existed for protection status determination purposes and:
i. If a country assessment did exist, failed to consider it and analyse the implications of it for the applicant's protection visa application; and
ii. Failed to identify the existence of any alternative country information that might exist including for example from the UNCHR [sic] or other international governments; and or
iii. If a country assessment or other available relevant information about the country did not exist, failed to state that it did not and that despite the second respondent's obligations, there was no relevant country information to be considered.'
23 I would not have permitted this to be raised because the Minister could have met it at trial with evidence that there was no such country information in the case of Burundi, which is the country of origin of the applicant. The Minister applied, in the event that particular (e) was permitted to be raised, to lead fresh evidence on the appeal to that effect. Because I would not permit particular (e) to be raised, that application is unnecessary and will be dismissed. In those circumstances, I will order that the first respondent's interlocutory application filed on 19 December 2014 be dismissed. No order as to costs was sought.