(1) Do the Tribunal's reasons as a whole give rise to an inference that the Tribunal failed to undertake an independent review?
135 In August 1971, the Commonwealth Administrative Review Committee (the Kerr Committee) recommended the establishment of a general Administrative Review Tribunal that would review the merits of certain administrative decisions made under Commonwealth law. The recommendation was made against the background of the absence of a means of independent merits review of administrative decisions affecting the rights of citizens. Although the Kerr Committee had suggested that the Tribunal might include officers of departments, that suggestion was not accepted by the Committee on Administrative Discretions (the Bland Committee) which reported in October 1973, and the absence of any overt attempt to have representatives of government departments as members of the Tribunal was remarked upon by Senator Everett in debates relating to the Administrative Appeals Tribunal Bill in the Senate: Commonwealth of Australia, Parliamentary Debates, Senate, 3 June 1975 at 2156.
136 Since its commencement in 1976, the jurisdiction conferred on the Administrative Appeals Tribunal has been enlarged. Relevantly, review of taxation decisions was a function conferred on the Tribunal by the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth).
137 The AAT Act has a number of features which underscore the independence of the Tribunal from government departments and agencies. Paragraph 2A(d) of the AAT Act contains an exhortation that -
In carrying out its functions the Tribunal must pursue the objective of providing a mechanism of review that:
…
(d) promotes public trust and confidence in the decision-making of the Tribunal.
138 The President of the Tribunal must be a judge of the Federal Court of Australia, and the members of the Tribunal are appointed by the Governor-General: ss 6, 7. Members hold office for the term of their appointment, which is not to exceed seven years: s 8(3). The appointment of members may be terminated only in specified circumstances: s 13. A full-time member must not engage in paid employment outside the duties of office without the President's approval, and a part-time member must not engage in any paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of the member's duties: s 11.
139 Of particular importance is that s 30 of the AAT Act provides that there are to be parties to a proceeding before the Tribunal. Principally, the parties are the applicant for review, and the person who made the decision. The parties are entitled to appear in person, or be represented by another person: s 32(1). There is a requirement that the decision-maker use best endeavours to assist the Tribunal to make its decision in relation to the proceeding: s 33(1AA). There is also a requirement that a party to a proceeding before the Tribunal, and any person representing such a party, must use best endeavours to assist the Tribunal to fulfil the objective in s 2A: s 33(1AB). Subject to a contrary order, the hearing of a proceeding before the Tribunal must be in public: s 35.
140 There is specific content to the Tribunal's obligation to accord procedural fairness. Generally, the Tribunal must ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents: s 39.
141 The Tribunal may exercise all the powers and discretions conferred on the decision-maker, and must make a decision in writing affirming, varying, or setting aside the decision under review: s 43(1). The Tribunal's task is to make the correct or preferable decision on the material before it: Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; 24 ALR 577 at 589 (Bowen CJ and Deane J). In other words, the Tribunal's role is to "do over again" what was done by the original decision-maker: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 at 502 (Kitto J), cited in Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [100] (Hayne and Heydon JJ).
142 The Tribunal is under an obligation to give reasons either orally or in writing for its decision: s 43(2). Where the Tribunal gives the reasons for its decision in writing, the Act requires that those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. This obligation is against the background that there is no obligation upon an administrative decision-maker at common law to give reasons for a decision: Public Service Board of New South Wales v Osmond [1986] HCA 7; 159 CLR 656.
143 It follows from the above features that in conducting a review the Tribunal is distinctly independent of the decision-maker whose decision is subject to review, and who is a party to the proceeding before the Tribunal. The Tribunal is to make its own decision, and is accountable for that decision by the generally open nature of the hearing process, and by the requirement that the Tribunal give reasons. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518, Gummow and Hayne JJ stated at [71] that "[t]he findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision". And as the Full Court (Tracey, Murphy and Mortimer JJ) stated in MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133; 234 FCR 154 (MZZZW) at [59] in relation to review by the Tribunal under Part 7 of the Migration Act, or any merits review scheme having similar features -
… the member constituted to the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language.
144 Cases involving the wholesale acceptance by a court or a tribunal of the case of one party over another have been argued and considered through different lenses. In some cases involving judicial decisions, the summary acceptance by a court of the whole of the evidence called on behalf of one party over another has given rise to the question whether adequate reasons for the decision were given: Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407 at 415-417 (Kirby P, with whom Priestley JA and Waddell A-JA generally agreed); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; 252 FCR 496 at [17] (Kenny, Perram and Robertson JJ). It was held on the facts of one case that the adoption by a judge of one party's submissions, and so acknowledged, is one method of providing adequate reasons: James v Surf Road Nominees Pty Ltd [2004] NSWCA 475 at [168] (Beazley, Tobias and McColl JJA). Other cases concern the question whether, by reference to the decision-maker's reasons, a party's case was in fact considered, which was one of the ways in which the applicant's case was argued here: see, Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; 6 VR 1 at [163]-[165] (Charles, Buchanan and Chernov JJA). In C v B [2006] FamCA 513; 35 Fam LR 285, it was submitted to the Full Court of the Family Court of Australia in an appeal by way of rehearing that the reasons of the primary judge were inadequate because they consisted mainly of reproducing, without attribution, the written submissions of counsel for the mother and that they failed to deal with or explain adequately or at all why the submissions for the father were rejected. The court held at [107] that in relation to some issues there was substance in the submission that justice was not seen to be done as a result of the failure of the primary judge to deal with certain submissions advanced on behalf of the father, and the Full Court proceeded to determine the issue for itself.
145 In SZMUV v Minister for Immigration and Citizenship [2009] FCA 205, Flick J expressed reservations about the manner in which a federal magistrate in the decision under appeal expressed his reasons for decision, where four of the nine pages set out verbatim the submissions of the Minister as to the relevant background and the substantive issues, however four of the pages set out the reasons as expressed by the magistrate. The concern that Flick J raised was that it was not self-evident that the magistrate had given independent consideration to the grounds of review that were advanced. On balance, however, Flick J held at [22] that the reasons did disclose a reasoning process involving independent consideration of the case, and displayed no appealable error. A similar conclusion was reached by Flick J in like circumstances in SZNRZ v Minister for Immigration and Citizenship [2010] FCA 107.
146 In Pollard v Wilson [2010] NSWCA 68, pages 8 to 43 of the primary judge's reasons consisted of a verbatim reproduction of submissions made by counsel for one of the parties at trial. The submissions were acknowledged by the primary judge, who expressed agreement with them. On appeal, the court held at [166] that nowhere in the primary judge's reasons did his Honour indicate that he had analysed the relevant evidence and himself concluded that the assertions made by counsel were justified by the evidence, and the court stated that he should have done so. However, the inadequacy of the judge's reasons was held at [176] not to have impeded the court's task on appeal, and therefore was not material to the outcome.
147 LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; 203 FCR 166 (LVR) was an appeal from the dismissal by a judge of an application for judicial review of a decision of the Tribunal brought under the ADJR Act. The Tribunal's decision was a discretionary decision under s 42A(5)(b) of the AAT Act to dismiss a number of applications on the ground of the appellants' failure to comply with procedural directions. One of the grounds of judicial review was that the Tribunal had failed to take a relevant consideration into account, namely the contents of an affidavit that had been filed, to which the Tribunal had not referred in its reasons. This ground was rejected by the primary judge: LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2011] FCA 1146; 127 ALD 27 at [29] (Gilmour J). On appeal, the Full Court (North, Logan and Robertson JJ) drew to the attention of the parties the apparent extent of verbatim copying by the Tribunal without attribution of the submissions of the second respondent, the Commissioner of Taxation, which had not been addressed by the parties to the appeal. The position of the Commissioner on the appeal was that the appellants had never claimed that the Tribunal did not take account of the affidavit on the ground that the Tribunal's reasons had been copied. The Full Court was critical of the failure of the parties, and in particular the Commissioner, to draw to the attention of the primary judge the fact that material components of the Tribunal's reasons to which the primary judge was taken had been copied from the Commissioner's submissions to the Tribunal, which had not taken account of the affidavit that was in issue. At [43] to [73] the Full Court set out its qualitative assessment of the extent of the Tribunal's copying before concluding at [78] that the Tribunal had failed to take the relevant affidavit into account. At [81] to [112] the Full Court addressed Australian and North American authorities that have considered the legal consequences of copying material into the reasons of a tribunal. Some of the cases concerned the use of "boilerplate" paragraphs, or the use of common information such as country information in migration cases. The perspective that was the subject of the Full Court's consideration was whether cutting and pasting passages into the reasons of the Tribunal was indicative of a failure by the Tribunal to discharge its statutory function: see [91]-[92]. Ultimately, the Full Court concluded at [130] and [136] that the Tribunal's reasons should not be examined as if they were an independent text without reference to their source, and that so understood, the Full Court concluded that the Tribunal did not have regard to the material in the affidavit in question. The consequence of that failure was that the decision of the Tribunal was set aside and the matter referred to the Tribunal for further consideration.
148 An allied issue arose in an appeal where there was wholesale adoption by the Tribunal of views expressed about the appellant by a differently constituted tribunal: MZZZW at [57]. This was held by the Full Court (Tracey, Murphy and Mortimer JJ) to constitute a miscarriage of the Tribunal's task in respect of which there was not necessarily one correct way of characterising the miscarriage. At [30] the court cited authorities that had considered the issue as a denial of procedural fairness, as a constructive failure to exercise jurisdiction, as bias, and as a failure to discharge the Tribunal's statutory function. In the circumstances of that matter, one of the grounds of appeal that was upheld was that, because the Tribunal had copied the reasoning of the earlier Tribunal decision involving the appellant, the Full Court at [77] was not persuaded that the Tribunal member had formed her own independent views about the appellant, which was a requirement of the discharge of the Tribunal's statutory task.
149 In SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; 314 ALR 146, the reasons of an independent merits reviewer contained many paragraphs that had appeared in other decisions either in identical terms or very slightly modified. The Full Court (Siopis, Perram and Davies JJ) held that the reviewer had used a method of cutting and pasting earlier decisions to produce his reasons on the appellant's application, which the Full Court held was not surprising, and with which the court expressed sympathy having regard to the volume of similar claims that the reviewer had to consider. In these circumstances, the Full Court held at [21] that the reviewer had accidently overlooked a substantive submission that was put on behalf of the appellant, with the consequence that there had been a denial of procedural fairness. As to a claim of apprehended bias, the Full Court at [35] stated that it saw no reason to depart from the decision in Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 223, which on almost identical facts concluded that apprehended bias was not made out.
150 In Juneja v Tax Practitioners Board [2017] FCA 908; 72 AAR 407, the Tribunal affirmed a decision of the Tax Practitioners Board which refused the renewal of registration of a company as a tax agent on the ground that its director had ceased to be a fit and proper person. One of the grounds of appeal to the court was that by reason of the extent of copying of the respondent's written submissions, the Tribunal constructively failed to exercise its jurisdiction. Besanko J remarked at [86] that there was very little authority on the point that was in issue. His Honour referred to the decision of the Full Court in LVR at [91] as indicating that extensive copying of a party's submissions may lead to the conclusion that there has been a constructive failure by the Tribunal to exercise its jurisdiction, whether that is because the Tribunal has failed to disclose its reasoning or otherwise. Although there was substantial copying of submissions without attribution, at [89] Besanko J was not persuaded that the Tribunal had failed to consider the applicant's case or engage in an active intellectual process in accepting the respondent's submissions. His Honour also noted at [92] that the Tribunal had from time to time in its reasons referred to submissions of the applicants, and did acknowledge that it was repeating or summarising or referring to a submission made by either the applicants or the respondent. His Honour further noted at [93] that the Tribunal, whilst repeating a number of the respondent's submissions, did not simply adopt or copy all of the respondent's submissions.
151 In Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965, the Tribunal reviewed a decision of a delegate of the Minister who refused to revoke the cancellation of a visa under s 501CA(4) of the Migration Act. The Tribunal affirmed the decision of the delegate. At first instance, McKerracher J found at [45] that there was a substantial similarity between the Minister's statement of facts issues and contentions before the Tribunal, and the Tribunal's reasons. However, at [66] his Honour held that even accepting that there had been a significant amount of replication, there were indications that the Tribunal had specifically considered the relevant evidence. An appeal from this decision was dismissed: Rodchompoo v Minister for Home Affairs [2018] FCAFC 215.
152 In Li v Attorney-General for New South Wales [2019] NSWCA 95; 99 NSWLR 630 the applicant applied to the Supreme Court of New South Wales under the Crimes (Appeal and Review) Act 2001 (NSW) seeking that an inquiry be conducted by a judge of the court with respect to his sentence in respect of convictions for drug-related offences. The application was refused. The application to the judge was not a judicial proceeding, and there was no ability to appeal the decision, but the applicant sought judicial review under s 69 of the Supreme Court Act 1970 (NSW). One of the applicant's claims was that the reasons of the judge for rejecting the application were an edited version of the submissions of counsel for the Attorney-General.
153 At [10], Basten JA formulated the potentially available grounds of review based upon the parties' submissions as follows -
(a) adoption of the Attorney's submissions demonstrated that the judge had not in fact formed the relevant state of satisfaction to enable him to dispose of the proceedings;
(b) by adopting the Attorney's submissions of 9 March 2018 the judge failed to consider the submissions of the applicant in reply filed on 30 April 2018;
(c) to the extent that the Attorney's submissions of 9 March did not fully address the grounds of the application, adoption of those submissions failed to address all of the grounds relied on by the applicant;
(d) in the alternative to the foregoing, that is, on the basis that the judge did in fact form a relevant opinion after considering all the relevant material, the reasons were inadequate in that they failed to explain why the applicant's submissions were rejected; and
(e) in the further alternative, the adoption of the Attorney's submissions meant that justice was not "seen to be done".
154 Basten JA at [23] held that there was no reason to conclude that the judge did not in fact form the views expressed in relevant paragraphs of the reasons that adopted the Attorney-General's submissions. Material to his Honour's analysis was that although the judge had adopted the Attorney's submissions almost verbatim, at least stylistic amendments were made to every paragraph of the submissions, some paragraphs were omitted, and other brief passages were added. Further, the judge's reference to the applicant's reply submissions, and the quotation of a passage from the reply submissions gave rise to an inference that the judge had read the reply, and Basten JA held at [37] that there was no basis for considering that the judge had failed to consider the reply submissions, and that if he had failed to consider them, then it would have been immaterial because they contained nothing new.
155 At [47], Basten JA addressed cases involving the adoption of the submissions of one party without attribution, stating -
However, the lack of attribution is not necessarily a critical factor; although it may indicate a failure to acknowledge what is being done, it will usually be immediately apparent to each party that one party's submissions have been adopted.
156 Material to Basten JA's analysis was his Honour's observation at [48] that the applicant's application for an inquiry was not an adversarial proceeding with conflicting evidence and submissions. Rather, it was an application for an inquiry in the course of which the Attorney-General articulated both the arguments of the applicant, and the responses to those arguments.
157 At [52]-[53], Basten JA held that it had not been demonstrated that any material matters were ignored or not taken into account by the judge, and that the judge was entitled to accept the submission of the Attorney-General. His Honour held that it could not be inferred that the judge did not apply an impartial and independent mind to the issues raised by the application. On the same basis, his Honour also held at [54] that the judge's reasons were not inadequate. Material to that conclusion was that there had not been competing submissions between which the judge had to choose.
158 Basten JA then turned to the question whether there was an independent requirement that "justice be seen to be done". A derivative of this phrase had been employed by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (Sun Alliance) at 18 in the context of adequacy of reasons in judicial proceedings -
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: -
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
159 Basten JA stated at [56] that it was clear that the phrase "justice is not seen to have been done" in Sun Alliance was intended to be a test of the adequacy of reasons, as reference to Gray J's reasons for judgment confirms. A similar reference had been made by McHugh JA in another case concerning adequacy of reasons, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281. Basten JA stated at [57] that it was doubtful whether this aphorism was ever intended to be a test of the validity of judicial, let alone administrative decision-making, holding at [58] that the aphorism "encapsulates a value or underlying rationale, not an applicable legal rule or legal principle". His Honour noted that there was no reference to any such principle in Public Service Board of New South Wales v Osmond [1986] HCA 7;159 CLR 656, which is the leading authority for the proposition that there is no common law obligation on administrative decision-makers to provide reasons, and stated that the decision in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 was inconsistent with any such approach.
160 Basten JA noted at [62] that no claim of reasonable apprehension of bias was pursued before the court, and added that it would not have been sustainable. In conclusion, at [63] his Honour rejected what he described as a "novel approach" based upon the need for "the appearance of justice".
161 At [69], White JA relevantly agreed with Basten JA, and added at [77]-[79] -
77 I accept that a judge who did not bring an independent and impartial mind to bear on an application under s 78 of the Crimes (Appeal and Review) Act would commit jurisdictional error that would render the judge's decision liable to be declared void. But I do not accept that the relevant yardstick is whether there is an appearance that justice has been done by the bringing to bear of an active, impartial and independent judicial mind, nor that it is sufficient to establish jurisdictional error that the substantial adoption of the Attorney's submissions contributed to the creation of an "impression" that the judge did not bring an independent and impartial mind to the determination of the application. Rather, as the Full Court of the Federal Court said in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 at [91]:
"the fundamental question is whether there has been a constructive failure on the part of the decision-maker to perform its allotted task."
78 On the present application for judicial review the question is not whether justice has not been seen to be done, but whether the court should be satisfied that the decision-maker did not in fact bring an impartial and independent mind to the decision. That is, the question is not whether Mr Li, or a reasonable person in his position, would have a legitimate sense of grievance that his submissions had not been fully absorbed and analysed and transmuted into a personal conviction on the part of the judge, but whether it should be found as a fact that the judge did not bring his own independent and impartial mind to bear on the issues.
79 There is no reason to doubt that the views expressed by the judge, albeit in terms that reflect the Attorney General's first submissions, did express his own views on the material presented. I agree with Basten JA's reasons (at [19]-[24] and [52]-[53]) that it cannot be inferred from the judge's acceptance of the Attorney's submissions that his Honour did not form the opinions that he expressed. As no clear and credible bases for challenging the sentence were raised, it cannot be inferred that the judge, in accepting almost verbatim the Attorney's submissions that his Honour did not form the opinions that he expressed. As no clear and credible bases for challenging the sentence were raised, it cannot be inferred that the judge, in accepting almost verbatim the Attorney's submissions, did not apply an impartial and independent mind to the issues raised.
162 Brereton JA dissented, holding that -
104 While the adequacy of reasons for a decision is influenced by the circumstances of the case, reasons will be inadequate not only if it is not possible to discern from them the reasoning upon which the decision is based, but also if justice is not seen to have been done.35 As appears from the authorities discussed below, the second limb will be engaged - that is, justice will not be seen to have been done - if the "reasons" are such as to leave the unsuccessful party with a justifiable sense of grievance because they do not appear to be the product of the active application of an independent and impartial mind.
(Footnote 35 is a reference to Sun Alliance at 18 (Gray J).)
163 Brereton JA then reviewed a number of authorities, including many of the cases that have considered the legal consequences of a decision-maker adopting the submissions of one party, with or without attribution. At [132], Brereton JA stated -
132 Nonetheless, it is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues. However, this requires that the reasons appear to a reasonable person in the position of the unsuccessful party to demonstrate that the decision-maker has actively engaged with its submissions and contentions, and brought to bear an independent and impartial judgment founded on reason and logic. That requirement will not be satisfied if the reasons leave an impression that arguments have been embraced without serious consideration having been given either to the contrary point of view, or to the application of an independent point of view, as will be the case where reasons which substantially incorporate, reproduce and/or adopt the submissions of one party do not contain indicia, beyond mere formulaic and stylistic changes, that they are the product of the active application of an independent and impartial mind, which has absorbed and analysed the competing submissions to reach a personal conviction on the part of the judge that the orders to be made are just and in accordance with law.
164 Brereton JA then applied these principles to the judge's reasons, which had adopted the Attorney's submissions practically verbatim, and held that by reference to the yardstick that his Honour formulated at [132], they were deficient. His Honour stated at [143]-[144] -
143 In my view, the judge's reasons are, by the relevant yardstick, deficient. The extensive adoption of the Attorney's submissions, not only on uncontroversial matters, but particularly on the formulation and rejection of the applicant's case, with the only reference to the applicant's second submission being to a concession, is such as to create an impression that the judge has not independently and impartially engaged with the applicant's claim and sub- missions and given serious consideration to them. The four matters inserted - which embellish submissions made by the Attorney rather than engage with submissions advanced by the applicant - are insufficient to overcome this impression, and the stylistic changes, and substitution of conclusions for submissions, even less so. A reasonable person in the position of the unsuccessful applicant would have a legitimate sense of grievance that his submissions had not been fully absorbed, analysed and transmuted into a personal conviction on the part of the judge that the orders to be made were just and in accordance with law, and that the judge did not bring his own independent and impartial mind to bear on the issues. The absence of attribution contributes to this impression, because it obscures the nature of what has been done.
144 In my view, therefore, the extent of the unattributed reproduction of the Attorney's submissions, particularly in respect of the formulation of the applicant's case and its disposal, is such as to create an appearance, from the perspective of a reasonable person in the position of the unsuccessful applicant, that his application did not receive proper independent and impartial consideration. Before us, the Attorney conceded as much. Justice was therefore not seen to be done. And as has been explained, in this field, appearances matter, whatever the reality may be.
165 Brereton JA then held at [152]-[154] that the failure to give reasons that satisfied the yardstick that his Honour identified was a constructive failure to exercise jurisdiction with the consequence that, as with a denial of natural justice, the decision was void.
166 In the present case, it is relevant to recognise that the Tribunal's function is administrative, and not judicial. The standard of reasons is therefore that fixed by the AAT Act, either expressly or by implication, and not the standard ordinarily required of a court. The Tribunal's statutory obligation under s 43(2) and (2B) is to give reasons for its decision which are to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. It is not necessary for the Tribunal "to refer to every piece of evidence and every contention made by an applicant in its written reasons": WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE) at [46] (French, Sackville and Hely JJ). What is material is what the Tribunal considers material, and not what is objectively material, because what is required focuses on the subjective thought processes of the Tribunal: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [65], [68] (McHugh, Gummow and Hayne JJ). The failure by the Tribunal to mention some matter in its reasons may give rise to an inference that the Tribunal did not consider the matter to be material, but not necessarily that the Tribunal did not take the matter into account: see WAEE at [47].
167 The question whether the Tribunal brought an independent mind to bear upon the review is a factual one, where each case turns on its own circumstances: MZZZW at [43]. Looking at the Tribunal's reasons as a whole I am not persuaded that the adoption without attribution of the respondent's submissions leads to an inference that the Tribunal failed to bring an independent mind to bear upon its review of the respondent's decisions. There are sufficient indications that the Tribunal's reasons are indeed its reasons for decision to which it gave independent consideration. The main indications are: (1) those paragraphs of the Tribunal's reasons to which I referred at [99] above which are independent of the respondent's submissions, which include summaries of the legal principles, reference to the applicant's submissions with some comments upon them by the Tribunal, the framing of issues that arose on the review, and some conclusions; (2) the fact that there was some material re-ordering of the paragraphs that were reproduced from the respondent's submissions which further supports the application of independent consideration; and (3) the Tribunal's express statement at [62] of its reasons that it had undertaken a thorough analysis of the documentary evidence and had considered the oral testimony. On the face of the Tribunal's reasons, there are insufficient reasons to conclude that the Tribunal did not do what it said it had done. All of this is in a statutory context where the respondent, as the decision-maker, had an obligation under s 33(1AA) of the AAT Act to use its best endeavours to assist the Tribunal to make its decision, which as a corollary must involve the Tribunal acting upon that assistance where appropriate. Without more, the Tribunal does not abrogate its independence by accepting, including to the point of adopting, the submissions of the primary decision maker, which is a party to the proceeding, is entitled to be heard, and which moreover has a statutory obligation to assist the Tribunal to make its decision.