Xu v Minister for Immigration & Multicultural Affairs

HUI ZHONG XU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 801 OF 1999 WHITLAM, RD NICHOLSON and GYLES JJ SYDNEY 17 DECEMBER 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

WHITLAM and GYLES JJ: 1 We have had the benefit of reading the judgment of RD Nicholson J in draft. This judgment relieves us of the necessity to set out the context in which the issues arise on this appeal. We agree with his Honour's conclusion and generally with his reasons. However, we believe that we should deal with the fundamental question as to whether the failure to comply with s 430 of the Migration Act 1958 (Cth) ("the Act") gives rise to a ground of review in this Court pursuant to s 476(1)(a) of the Act. 2 We are conscious of the fact that there are a number of decisions of Full Courts of the Court which proceed upon the basis that such a right of review exists. However, we have not been referred to any Full Court decision in which the argument now advanced has been rejected in a reasoned judgment. Indeed, it is far from clear that argument has been advanced in those cases. Late in the argument before us it was brought to our attention that the Minister is seeking special leave to appeal to the High Court upon this issue in the case of Minister for Immigration & Multicultural Affairs v Israelian [1999] FCA 649. The decision of the Full Court in that case does not, in our view, amount to such a reasoned rejection. Indeed, the judge who was in dissent does not refer to it at all, and those in the majority simply refer to Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 as authority for the proposition that review is available. 3 In Thevendram (supra) the Court adopted an analysis by Finn J in Kandiah v Minister for Immigration & Multicultural Affairs (Finn J, 3 September 1998, unreported) in which his Honour said (at p 13): "It is clear from Muralidharan's case [Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 62 FCR 402] … that such a breach [of s 430(1)(c)] involves a failure to observe the procedures required by the Act to be observed "in connection with the making of the decision"." Again, there is no reference to any contention of the Minister to the contrary. 4 The same may be said of Muralidharan (supra). Indeed, the analysis in the judgment of Sackville J of the judgment below (411A) and the test applied (412G-413F), the manner in which his Honour commences the section on failure to give reasons (413G), together with his summary of the development of the argument (406E) indicates a fair likelihood that the submission as to breach of s 430 giving rise to review under s 476(1)(a) was made during the course of the argument on appeal. There is no mention of any reasoned contrary argument having been raised and dealt with. 5 In this Court, the circumstance that a series of cases proceed upon the same basis does not provide any greater authority to that basis than the best disclosed reasoning. There is no merit in uniformity in error. The exposition of the relationship between s 476(1)(a) and s 420 by Lindgren J at first instance in Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (Lindgren J, 6 May 1997, unreported), in the face of a number of decisions proceeding on a contrary basis, illustrates this point. 6 It is also to be noted that Muralidharan (supra) was a decision upon the Act as it stood before the substantial amendments which came into effect in 1994, although given after that time. It was a case pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and the relevant section of the Act was the then s 166E. Whilst there is significant textual similarity between, on the one hand, the then s 166E of the Act and s 5(1)(b) of the ADJR Act and, on the other hand, s 430 and s 476(1)(a) of the Act, the amendments which came into effect in 1994 are plainly relevant to the question of construction which arises. It is also clear that the decision was made when the Full Court decisions in Minister for Immigration, Local Government & Ethnic Affairs v Mok (1994) 55 FCR 375; Wu v Minister for Immigration & Ethnic Affairs (1995) 57 FCR 432; and Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 represented the received wisdom. This line of authority was described as false by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 263.9. It is also to be noted that Davies J (at 406) regarded a failure to comply with s 166E as constituting an error of law rather than a failure to follow procedures. We do not need to examine the controversy attendant upon that approach for the purposes of this case (cf Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422 at 445-6; Comcare Australia v Lees (1997) 151 ALR 647 at 656-9). 7 The cases which have dealt with the new form of the legislation (and, indeed, Muralidharan (supra) itself) are all recent. Even if (contrary to our view) they represent a reasoned resolution of the issue, re-examination is warranted in the light of the decisions of the High Court in Abebe v Commonwealth (1999) 162 ALR 1 and Minister for Immigration & Multicultural Affairs v Eshetu (1999) 162 ALR 577. These decisions make clear at least that: (1) Parliament's clear intention to confine the jurisdiction of this Court so as not to be able to review decisions under the Act on grounds which may involve merits is not to be negated by strained construction of s 476(1)(a) of the Act. (2) The fact that this Court has no jurisdiction does not mean that the Act need not be obeyed. 8 We also take into account the practical importance of the issue. Our experience over recent months, both at first instance and on appeal, is that the conduct of applications of this kind has been transformed by the ingenious use of s 430. Since the High Court's decision in Eshetu (supra) blocked the use of s 420 of the Act as a vehicle for de facto merits review, applicants now commonly utilise the line of cases in question to rely upon a breach of s 430 based upon the reasoning (and so the merits) of the written statement provided by the Refugee Review Tribunal ("the Tribunal"). This case is an example. The application, the proceedings below and the notice of appeal raise no s 430 issue. It was raised for the first time by amendment at the hearing of the appeal itself. The alleged deficiency depends upon the reasoning of the Tribunal. Thus, the point at issue affects one of the most common matters which come before the Court. Furthermore, it has an impact upon the way in which a tribunal established by Parliament to perform a public function carries out its task. 9 As the judgment of RD Nicholson J shows, the proper construction of s 430, and the correctness of cases such as Thevendram (supra), cannot be avoided in any event. It is anomalous not to go on to consider the related, but more fundamental, question of the availability of review by this Court. The argument presents a bare question of statutory construction, and no one case is a better vehicle than another for resolving the issue. If correct, it is an answer to the case put, by amendment, by the appellant to the Court. The respondent is entitled to answer that case. The Act should be obeyed. 10 We do not consider that it would be appropriate to await the fate of the special leave application in Israelian (supra). We do not know when that application will be determined. If leave is granted, there would be a considerable delay before a decision is given. Leave could be refused because the particular case is not an appropriate vehicle on account of the fact, for example, that there is no reasoning on the point in the Court below. 11 We therefore propose to consider the submission by the appellant that the Court can review the Tribunal decision for breach of s 430 on its merits. The form of the Act for consideration is that as it stood prior to the amendments made by the Migration Legislation Amendment Act (No 1) 1998 (Cth).

Section 430 and s 476(1)(a) 12 Section 476 of the Act provides for "review by the Federal Court of a judicially-reviewable decision". A judicially-reviewable decision is defined to include decisions of the Tribunal. Thus, for the purposes of s 476, the subject matter for judicial review is the decision itself. We shall return to the significance of this shortly. 13 The particular ground for review which is in issue here is s 476(1)(a): "… that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed." 14 This is a ground familiar in administrative law, reflecting the fact that an act done in breach of a condition regulating the exercise of a statutory power may be invalid where a legislative purpose can be discerned to invalidate any act that fails to comply with the condition. The existence of that purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition (see the recent discussion by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391, paras 91-93). The debate which used to be described as being a choice between mandatory and directory requirements is, in the case of s 476(1)(a), wrapped up in the phrase "required by this Act or the regulations". For present purposes, however, the important phrase is "in connection with the making of the decision" (emphasis added).

15 It is argued that s 430(1) provides for a procedure within the meaning of s 476(1)(a). Before turning to analyse more closely Division 5 of Part 7 of the Act in which the section appears, we note that Divisions 2, 3 and 4 contain provisions which might be picked up by s 476(1)(a) (eg, ss 412, 418, 421, 425, and 426).

16 Returning to Division 5, the section relied upon was in the following terms:

"430(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. (2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made. (3) Where the Tribunal has prepared the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based." 17 In our opinion, the ordinary grammatical meaning of that section assumes that a decision has been made, and provides for other steps to be taken consequent upon that fact. The decision is made pursuant to s 415 of the Act, which was as follows: "415 (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations." This position is confirmed by the language of s 417(1). The written statement required by s 430(1) is not the decision, and the requirement to prepare the written statement is not sparked until the decision is made. This opinion accords with the established construction of the section and its counterpart relating to the (then) Immigration Review Tribunal when considering the application of s 478(1)(b) of the Act (Long v Minister for Immigration, Local Government & Ethnic Affairs (1996) 65 FCR 164 at 167 and 178; Wang v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 386 at 390E-F; Duwai v Minister for Immigration & Multicultural Affairs [1999] FCA 1309 at para 19). 18 A related question arising under the ADJR Act was recently examined by the Full Court in Commonwealth of Australia v Human Rights & Equal Opportunity Commission [1999] FCA 1524. The relevant statutory provision was s 35(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which was in the following terms: 35. (2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission: (a) shall serve notice in writing on the person setting out its findings and the reasons for those findings; (b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice; (c) may include in the notice any recommendation by the Commission for either or both of the following: (i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice; (ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice; (d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c); (e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and (f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice: (i) where the complaint was made by a person affected by the act or practice - shall serve a copy of that report on the complainant; or (ii) if the complaint was made by another person - may serve a copy of that report on the complainant." Black CJ said (at paras 9-10): "9. In my view, there was a "decision" within the meaning of the ADJR Act in the present case, and Wilcox J did have jurisdiction under s 5 of the ADJR Act to hear and determine the application for judicial review. It is, of course, important to identify with precision what the reviewable decision is. Here the reviewable decision is the finding by the Commission that the Commonwealth's conduct amounted to "discrimination" within the meaning of subs 3(1) of the Act, and its related recommendation that Mr Bradley be compensated by the Commonwealth for the loss he suffered as a result of that discrimination. It is not, as the appellant's primary argument would suggest, the written notice of that finding issued by the Commission under par 35(2)(a). Whilst such notice may be said to "evidence" the Commission's decision, I do not consider that it can properly be characterised as a "decision" in itself for the purposes of the ADJR Act. The same reasoning applies in respect of any report prepared by the Commission for the Minister about its investigation into Mr Bradley's complaint under par 35(2)(d) of the Act. Moreover, such a report would not be made a "decision" by the operation of subs 3(3) of the ADJR Act, as the Act does not provide for the making of that report "before a decision is made in the exercise of a power under that enactment or under another law" as required by subs 3(3). Indeed, in the present case the making of the decision preceded the making of the report, rather than the other way around which is the situation envisaged by subs 3(3). 10. The Commission's actual finding of discrimination, however, (and related recommendation regarding the payment of compensation) does satisfy the criteria of a reviewable "decision" explained by Mason CJ in Bond; it is substantive rather than procedural, and is final and determinative, in a practical sense at least, of the issue raised by Mr Bradley's complaint. It was the final conclusion at the last stage of the administrative procedure provided by the Act for resolving that complaint, and took immediate effect upon its communication to the Commonwealth or the Minister …" (the emphasis is ours) Tamberlin J agreed with the Chief Justice. This approach was referred to and applied by Carr J in State of Western Australia v Native Title Registrar [1999] FCA 1593 paras 79-80. 19 The statement prepared pursuant to s 430(1) is not the decision itself which is made pursuant to s 415, but rather, as the section says, a statement which records it and provides reasons for it in a particular form. Division 5 provides a mechanism by which the parties are informed of the reasons for the decision, rather than dealing with the making of the decision itself. Section 430(1) cannot be construed in isolation from the balance of the section. Each limb is framed in mandatory language. It could hardly be suggested that breach of subsections (2) or (3) would invalidate the anterior decision. 20 Granted the width of the phrase "in connection with", in our opinion, the procedures laid down by Division 5 are not "in connection with the making of the decision", but rather are in connection with the promulgation of the reasons for the decision. The phrase in the section is not "in connection with the decision". It follows that the written statement of reasons is not reviewable pursuant to s 476(1)(a), and that the decisions which have proceeded upon the contrary basis are wrong and ought not be followed. 21 Whilst, in our view, the language of the statute requires this conclusion, we are also of the view that it accords with a proper understanding of the way in which judicial review of administrative decision-making operates. The fallacy of reviewing reasons rather than the decision was pointed out by Gummow J in Eshetu (supra) at 603, para 117: "[117] The second point to be made is that in such a proceeding the subject matter for judicial review nevertheless remains the decision itself. In some degree, the submissions for the prosecutor treated as distinct subject matter for judicial review under s 75(v) of the Constitution the cogency of the reasoning of the tribunal and the adequacy of its findings on material questions of fact. Such an approach is misconceived. Section 430 obliges the tribunal to prepare a written statement dealing with certain matters. It thereby furthers the objectives of reasoned decision-making and the strengthening of public confidence in that process. But the section does not provide the foundation for a merits review of the fact-finding processes of the tribunal." (emphasis ours) As we have pointed out, s 476 expressly provides that it is the decision which is to be reviewed, so that the remarks by Gummow J, although related to judicial review under s 75(v) of the Constitution, are directly in point. Reasons may reveal matters which will make a decision reviewable. Reasons themselves are not reviewable. 22 A similar approach is reflected in the following passage from the reasons of Brennan J (as he then was) in Kioa v West (1985) 159 CLR 550 at 625 in speaking of s 5(1)(a) of the ADJR Act, viz, "that a breach of the rules of natural justice occurred in connection with the making of the decision": "I respectfully agree with the view expressed by Bowen C.J. and Franki J. in Minister for Immigration and Ethnic Affairs v. Haj-Ismail [(1982) 57 F.L.R. 133, at pp. 140-141; 40 A.L.R. 341, at p. 347]: "We consider s. 5(1)(a) means that relief may be sought where rules of natural justice are applicable in the exercise of a power and effect has not been given to them." Nor, in my opinion, ought s. 13 of the A.D.(J.R.) Act make any material difference. Prior to the enactment of s. 13 it was difficult, if not impossible, for a party who sought to challenge the validity of many administrative decisions to ascertain the reasons of the decision-maker. The absence of reasons, often irremediable by discovery, immured many administrative decisions from judicial review. Section 13 provides the means by which the reasons for making an administrative decision can be ascertained, but it does not require the adoption of a different procedure from the procedure which would have to be followed if s. 13 of the A.D.(J.R.) Act had not been enacted." (emphasis ours) Here, the exercise of the power is making the decision pursuant to s 415, not providing a written statement of it. 23 We should also observe that it is unsafe merely to apply uncritically decisions on the ADJR Act to this Act. Prior to the amendments introduced by the Migration Reform Act 1992 (Cth), the ADJR Act applied to many decisions under the Act. The 1992 Act deliberately altered that situation. It would be wrong to construe s 476 as if it were s 5 of the ADJR Act. The task is to construe it in its own statutory setting (Project Blue Sky Inc v Australian Broadcasting Authority (supra) at 384-5, paras 78-81; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 621). The Explanatory Memorandum said this of s 476(1)(a) (in its then numbering): "413 New section 166LB sets out the grounds upon which an application for review by the Federal Court of a judicially reviewable decision may be made. Sub-section (1) contains 7 grounds of review. While each ground of review stands separately, they are not mutually exclusive and there may be overlap between some of the grounds: (a) That procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed: This ground of review is complementary to the new sub-section 166LB(2)(a), which provides that an application for judicial review of a decision may not be made for a breach of the rules of natural justice, or as it is now called, procedural fairness. The Scheme of decision-making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level or [sic] protection to individuals but will have the additional advantage of greater certainty in the decision-making process. For example, at common law prior notice of an adverse decision is required. Under the procedures established in this Bill, new section 26Y requires the Minister to give the applicant information, if that information would be the reason or part of the reason for refusing the application for a visa. The Minister is to invite the applicant to comment on it and under new section 26ZE, the Minister is not to refuse an application until the applicant has responded, has indicated that he or she will not be responding or the time for responding has passed. The Bill provides for an application for review of a decision where procedures such as these are not observed. (b) that the person who purported to make the decision did not have jurisdiction to make the decision: This ground of review corresponds with the ground under section 5(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 and covers those matters where the tribunal or officer making the decision was not properly authorised to make the decision such as, in the case of the tribunal, where it was not constituted in the proper way or, in the case of an officer, where the officer's statutory authority has been exceeded. … 414 New sub-section 116LB(2)(a) provides that an application for review of a decision may not be made on the grounds that there was a denial of natural justice. The rules of natural justice have been replaced by a codified set of procedures which will provide greater certainty in the decision-making process (see notes above under new section 166LA(1)(a)." 24 It had earlier said: "44 In acknowledgment of the special nature of immigration decisions and as a result of the widened availability of merits review the Reform Bill amends the Act to set down reformulated grounds for judicial review. To ensure procedural fairness, procedures for decision making which embody the principles of natural justice have been set out in the Reform Bill. 45 The specific codified procedures in the Reform Bill, and those to be set out in the Migration Regulations, replace the current uncertain rules with regard to natural justice and statutory criteria for decision-making will clarify the matters which must be considered in making a decision. An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision-makers, but a Court appeal will only be permitted where the appellant has first pursued all merits review rights. 46 Codification of procedures will enable a balance between obligations on applicants - for instance in relation to time limits on applications and requirements to co-operate in processing of applications - and obligations on the Department - for example to provide applicants with an opportunity to comment on adverse material and take decisions only after prescribed periods have passed." 25 The legislative intention, therefore, was that s 476(1)(a) would relate to those express procedural requirements which would otherwise be encompassed by the natural justice ground. The giving of reasons for decision is not part of natural justice in relation to the making of the decision (Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Kioa v West (supra)). We have referred above to the decision of Lindgren J in Sun Zhan Qui, which unfortunately is not reported. Portions are reproduced in the judgments of each of Gummow and Callinan JJ in Eshetu (supra), with the latter being fuller (at 617-620). Whilst all that his Honour said which is there reproduced repays consideration, that which appears at 618, lines 25-45, is directly applicable to the point we have just made. 26 We have considered the decision of Wilcox J in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 particularly at 479-480, where it was held that breach of s 25B of the then Broadcasting Act 1942 (Cth) was caught by s 5(1)(b) of the ADJR Act. We have already cautioned against applying uncritically decisions under that section to s 476(1)(a) of the Act. Furthermore, s 25B is different in form to s 430 of the Act. The question which his Honour asked himself (at 479) was "… is it a procedure required to be observed "in connection with" the decision to grant a licence?". The gravamen of the answer was (at 480): "…but if, in a particular case, it can be seen that a particular procedure is part of the decision-making process prescribed by law, it must be regarded as a procedure required "in connection with" that decision." In our opinion, whatever the position may have been in that case, the giving of reasons under s 430 is not part of the decision-making process. The decision has been made. Black CJ and Tamberlin J correctly describe the actual decision as the final conclusion at the last stage of the administrative procedure provided by the act for resolving the relevant issue (see paragraph 18 above). The correct question is also, as we have said earlier, not whether the procedure is in connection with the decision, but rather in connection with the making of the decision. There is a difference in substance between these concepts which is not eliminated by the width of the phrase "in connection with". 27 In Hughes v Minister for Immigration & Multicultural Affairs (1998) 53 ALD 607 Lee J held (at 612) that the obligations imposed by (in that case) s 368 of the Act actually operate during and upon the decision-making process. We respectfully disagree. We also note that his Honour's approach to that case was heavily influenced by the view of the law then prevalent before the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411. Furthermore, his Honour applied a dictum from Deane J in Minister for Immigration & Ethnic Affairs v Pochi (1980) 44 FLR 41 which Mason CJ (with whom Brennan J agreed) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 said was not so far accepted in the High Court, and which was not followed in Epeabaka (supra). Lee J also cited (at 612) Mohamed v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 234 as authority for the proposition that a failure to comply with s 368 constitutes a failure to observe procedures of the kind referred to in s 476(1)(a) of the Act. In fact, it was not necessary to decide the point in Mohamed (supra) where Hill J expressly noted (at 244) that the Minister did not argue that a breach of s 430 did not constitute such a failure. This issue does not appear to have been argued on appeal (Minister for Immigration & Multicultural Affairs v Hughes (1999) 86 FCR 567). 28 There is another reason why it is quite unlikely that this Court would be given the task of scrutinising reasons for a decision for materiality so as to set aside the decision. The question of materiality is inextricably intertwined with taking into account relevant and irrelevant considerations. That ground of review is expressly denied this Court by s 476(3) and s 485 of the Act. It would be anomalous to have it brought back by a side wind. The Full Court in X v Minister for Immigration & Multicultural Affairs [1999] FCA 697 at para 23 said: "Parliament, in its wisdom, has entrusted the making of factual findings to the Refugee Review Tribunal and in consequence has chosen to confer jurisdiction to review decisions of that Tribunal upon this Court in a very limited way: cf Abebe v the Commonwealth of Australia [1999] HCA 14. There may be a justification for this. Claims for refugee status, like other immigration matters, involve political, not to mention foreign policy considerations, which some might see to be more appropriately determined by the administrative arm of government, rather than the judicial. But whatever the justification this Court has a very limited jurisdiction and no jurisdiction at all to examine the merits of an application." To the same effect, McHugh J said in Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 321: "The weight that is given to a particular consideration is a matter for the decision-maker, not for the courts in an application for judicial review. This is not a case where the Minister's delegate simply discounted the assertions of hardship to the family. The delegate was asked to consider the position of the family, had information about the family, and made her decision on that basis. That she gave greater weight to the requirement of good character than to the welfare of the children is irrelevant for present purposes. The Migration Act entrusts the weighing of such considerations to administrative officials. It is a consequence of the doctrine of separation of powers that the decisions of administrative officials acting within their powers must be accepted by the courts of law whatever the courts may think of the merits of particular administrative decisions." The fact that his Honour was in dissent in the result does not detract from the cogency of this statement. 29 If there is a true failure to comply with s 430, the remedy lies in the prerogative writs. The circumstance that Parliament has chosen to exclude this Court from that jurisdiction, and that the work of the High Court may be correspondingly increased, may be inconvenient, but cannot control the question of statutory construction (Re Wakim, Ex parte McNally (1999) 163 ALR 270). We would, however, venture the opinion that if s 430 is construed as we later suggest it should, the workload would be light. 30 After these reasons were substantially written, we received a copy of the decision in Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681, delivered on 2 December 1999. That case was heard after judgment had been reserved in this case. We have already dealt with the authorities referred to by their Honours. The only other aspect of their reasons to which we should refer is the reference to the use of the term "issues" in s 423 and s 425. We regard that use of the term as neutral on the point presently under consideration. There are, no doubt, issues which arise in every such application, but the sections in question do not define what those issues are - they are purely procedural. The objective determination of issues which is referred to by their Honours is provided by the substantive provisions of the Act, as we explain when dealing with materiality. As we there say, the Tribunal does have the exclusive power to decide what is or is not material in a given case unless the Act dictates otherwise.

Materiality 31 As is apparent from the reasons of RD Nicholson J, the contrast between (c) and (d) is fundamental to a proper understanding of s 430. Materiality arises in various contexts. In this context, the language of that contrast immediately calls up: "… the difference between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact)" (Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; Bowen CJ and Fox J in Sean Investments v MacKellar (1982) 42 ALR 676 at 682.) See also the use of the phrase "ultimate facts" by Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 at 685. The same contrast is reflected in the rules of pleading, eg, Order 11 Rule 2(a) of the Federal Court Rules which distinguish between material facts, which are to be pleaded, and the evidence by which those facts are to be proved, which is not to be pleaded. Material facts are those which are necessary to constitute a cause of action or ground for relief. Gummow J has referred to the same distinction in more than one statutory context - see Grace Brothers Pty Ltd v Magistrates, Local Courts of NSW (1988) 84 ALR 496 at 505 and Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519. The judgment of the Court in Zoeller v Republic of Germany (1989) 23 FCR 282 at 294 is to the same effect. 32 Applying that analysis to the present section would suggest that (c) refers to those findings of fact which are necessary to the decision, and, in that sense, ultimate facts, and (d) refers to that which proves the necessary ultimate fact. That analysis is confirmed, and, in our opinion, required when it is recognised that s 430 relates to administrative decisions made on the merits pursuant to a statute. Materiality in s 430 must be materiality to the decision to which it applies. In other words, materiality as it is understood in administrative law. A statute may expressly or impliedly contain conditions which must either exist in fact or as to which the decision-maker must be satisfied before making the decision. A statutory provision may expressly or impliedly oblige the decision-maker to take certain facts into account when making the decision, or prohibit the decision-maker from taking certain facts into account when making the decision. These facts may either have to objectively exist or may depend upon the satisfaction of the decision-maker. Where a statute does not expressly or impliedly constrain the decision-maker, the decision-maker is the sole judge of materiality and there can be no judicial review of that question, no matter how wrong or illogical the decision-maker is seen to be by a judge. In those circumstances, a fact is material only if the decision-maker considers it so. 33 The consequence of this reasoning is that it is quite impossible to upset a decision because a decision-maker does not take into account a fact which an applicant proposes as material, but which is not made material by the Act. That being so, it would be truly anomalous to conclude that a material fact has been omitted from a statement of reasons where the Act does not make the fact material. The only conclusion open from such an omission is that the decision-maker did not consider the fact material. If a judge makes an assessment that an absent fact is material otherwise than by holding that the Act requires the fact to be considered, then that plainly involves a merits review which the High Court have emphatically said should not happen. 34 Furthermore, it is not permissible to elevate those facts and circumstances which are relevant to a material fact to materiality, as to do so would obliterate the distinction between (c) and (d) in s 430 (1). 35 On this view, what should happen is those facts which the Act requires to be decided, and perhaps those facts which the Tribunal decides are material in the area committed to its discretion, should be identified in the written statement and found, one way or the other, with reasons provided under (b) referring to evidence and other material under (d). 36 As we have said, if there is a failure in the written statement to deal with what might be described as a mandatory fact, then a deficiency may be found. No such deficiency can be found on any other basis. To do so is to intrude into the decision, rather than supervise compliance with s 430. 37 The meaning of materiality which we favour accords with what is to be expected from a statement of reasons by lay administrative decision-makers. The most important objective is to know what the finding is on those critical issues that a statute requires to be considered and decided in making the actual decision. It is then important to know why and on what facts and matters those findings are made. In other words, in this field, it is the Act, and only the Act, against which materiality can be judged. As Gummow and Hayne JJ said in Abebe (supra) at 53 (para 195): "There appears much to be said, however, for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider." Their Honours refer in that connection to the analysis by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40. That exposition has been referred to with approval and followed on numerous occasions, and we have endeavoured to apply it to our consideration of the present issue. Because of its significance, we set it out (omitting citation of authority): "(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: … The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, at p. 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider". (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: … By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: …. A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: … (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: … It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: … I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". …"

38 Even ignoring the effect of s 476(2) and (3), it would be anomalous to construe "material" in s 430(1)(c) as something less than "relevant" in the sense explained by Mason J in Peko Wallsend (supra). It would lead, for example, to the following result. Assume that a fact (A) is alleged by an applicant to be important, but is not made a relevant factor by the statute. If the decision-maker says in the written statement pursuant to s 430(1), "I have completely ignored A as it is immaterial", the decision itself could not be attacked, even without s 476(2) and (3). If, however, the decision-maker does not mention A, there would be a breach of s 430(1)(c) if a judge later took the view that A was not immaterial. This cannot be anything other than review on the merits.

39 This construction of s 430(1) would make the Court, rather than the decision-maker, the judge of materiality in a field where principle, and authority, suggest the Court has no business. Once the legitimate field of statutory construction is departed from, a Court has no ascertainable legal yardstick by which to judge the correctness of administrative decisions.

40 The distinction is well illustrated by the following passage from the speech of Lord Hoffmann in Tesco Stores v Environment Secretary [1995] 1 WLR 759 at 780F-781A:

"… The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State. The test of acceptability or necessity put forward by Mr Lockhart-Mummery suffers in my view from the fatal defect that it necessarily involves an investigation by the court of the merits of the planning decision. How is the court to decide whether the effect of a planning obligation is to make a development acceptable without deciding that without that obligation it would have been unacceptable? Whether it would have been unacceptable must be a matter of planning judgment."

41 In Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35-39 Brennan J gave a lucid exposition of the proper scope of judicial review. His Honour said (at 35-6):

"Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful. To say that the doctrine of ultra vires defines the scope of judicial review is too restrictive, although Mr Beatson has pointed out that - "Ultra vires is … both a powerful constitutional justification for judicial control and a useful organizing principle for the creation of a coherent subject from what has sometimes appeared to be a `wilderness of single instances'." ("The Scope of Judicial Review for Error of Law", Oxford Journal of Legal Studies, vol. 4 (1984) 22.) The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v The Commonwealth and Hayden, Gibbs J. said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall C.J. in Marbury v. Madison: "It is, emphatically, the province and duty of the judicial department to say what the law is." The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." The principle as stated by his Honour was referred to with approval in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (supra) at 272 and 291. 42 It should not be overlooked that the principles and limits of judicial review apply to sections such as s 476. The ADJR Act, which is the paradigm provision, was to achieve procedural reform and not to work a radical substantive change in the grounds on which administrative decisions are susceptible to challenge at common law (Kioa v West (supra) per Gibbs CJ at 566-567, Mason J at 576-7, Wilson J at 594-5, Brennan J at 625, Deane J at 630). 43 Once within jurisdiction, a decision-maker can find facts wrongly, and the conclusion can be demonstrably unsound or be the result of illogical reasoning (Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (supra) at 356; Midway v Minister for Planning (1993) 30 NSWLR 646 at 655; Minister for Immigration & Multicultural Affairs v Epeabaka (supra) at 421; Eshetu (supra) at 587-588 (paras 40-44); Minister for Immigration & Multicultural Affairs v Rajalingham [1999] FCA 719 per Kenny J at para 146; Newell v Minister for Immigration & Multicultural Affairs [1999] FCA 1624, paras 25-30). 44 In Broadbridge v Stammers (1987) 16 FCR 296 at 301 the Court adopted the words of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely." 45 In Australian Broadcasting Tribunal v Bond (supra) at 341 Mason CJ said: "The expression "judicial review", when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government. Amongst other things, such a change would bring in its train difficult questions concerning the extent to which the courts should take account of policy considerations when reviewing the making of findings of fact and the drawing of inferences of fact." See also, in this connection, paragraph 28 above. 46 In Eshetu (supra) Callinan J said, at 623 (para 193): "193. This … is not a case therefore in which the tribunal failed to determine, by making an explicit factual finding, a factual issue which was an essential preliminary to the making of the ultimate decision. The only essential matter for decision was of the existence or otherwise of the relevant well-founded fear and in making that decision the tribunal gave particular, but not exclusive, consideration to the matters which the respondent placed at the forefront of his application. Not surprisingly, when the assertions in respect of them failed, the respondent's application almost inevitably failed also." 47 There can, perhaps, be no quarrel with describing "material facts" as "the substantial issues on which the case turns" (Muralidharan (supra) at 414) "facts on which his conclusions depend" (Ansett Transport Industrial (Operators) Pty Ltd v Wraith (1983) 48 ALR 500 at 507), or "of the essence of the ultimate decision" (per Lindgren J in Sun Zhan Qui (supra)), although the dangers of deciding cases based upon a judicial paraphrase rather than upon the statutory phrase have been recently underlined: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572; X v Minister for Immigration & Multicultural Affairs (supra) at para 36. These paraphrases, of course, beg the question as to what is material and what is not. The correct path is indicated by the full tribunal of the Administrative Appeals Tribunal in Re Palmer (1978) 23 ALR 196 at 207, presided over by Fisher J in an early decision on the adequacy of a statement pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) after the 1977 amendments, when it said: "When tested against its undoubted purpose there is little doubt in our opinion that the statement was not adequate. Counsel for the Minister however contended that it was adequate, but, despite a number of requests from members of the Tribunal, failed to provide a satisfactory analysis of the statement against the requirements of the Act. He also failed to identify in any way the manner in or the extent to which he contended that there had been compliance. …" (emphasis added) 48 This process does not necessarily lead to a bare conclusionary statement in the terms of the statutory provision. It leads to a precise analysis of the facts which must be found in order to exercise the power. The integers of the statutory provision need to be teased out. That task of statutory construction will not vary from case to case. 49 To adapt the words of Brennan J in Waterford v Commonwealth (supra) at 77, a flaw is only disclosed in the substantive decision if the Tribunal omits to make a finding it was legally required to make. It surely follows that there will only be a deficiency in a statement of reasons if the Tribunal omits to make a finding that it was legally required to make. 50 In Carmody v MacKellar (1997) 76 FCR 115, the Court, after referring to Peko Wallsend (supra), at 142 said: "The question to be addressed is therefore whether the subject matter, scope and purpose of [the statutes] implied an obligationon the Issuers to take into account the LPP Consideration?" See also the Full Court decisions in Inspector-General v Nelson (1998) 86 FCR 67 at 83; Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 70 FCR 93 at 129; and per Gummow J in Mercantile Mutual Life Insurance v Australian Securities Commission (1993) 40 FCR 409 at 436-7. 51 That process would indicate that, as suggested by Gummow and Hayne JJ (see Abebe at 53, para 195), materiality will not vary with the facts of the particular case - that aspect will be picked up by s 430(1)(b) and (d). In particular, materiality will not depend upon how an applicant chooses to present the issues. 52 It is established that even in a case where the parties do not address a material fact, resulting in a tribunal failing to make findings about it, that failure will vitiate the decision (Kuswardana v Minister for Immigration & Ethnic Affairs (1981) 54 FLR 334). In that case, the Minister, and so the Administrative Appeals Tribunal on appeal, purported to exercise a power to deport "an immigrant", but the Tribunal made no finding as to whether the applicant was an immigrant. The result cannot be different if the applicant puts forward a fact as material which a statute does not make material. 53 This reasoning may be subject to a rider. We have already said that where the fact is not material in this sense, but it is within the decision-maker's discretion to treat it as material, and it is so treated, then it is arguable that a finding under s 430(1)(c) would be required. This does not mean that every fact put forward by an applicant is to be so regarded. More importantly, it does not mean that the Court has any role in deciding whether the fact is material or not, no matter how important the Court considers the fact to be. The only issue on judicial review would be whether the Tribunal has actually decided that the fact is material. 54 Mere consideration of the fact by the Tribunal would not establish a decision that the fact is material. It will be comparatively rare that such a decision can be found absent a reference to it in the written statement or some other formality. The inquisitorial nature of the proceedings, and the fact that the statutory requirement is that the Tribunal be "satisfied" of the relevant facts, increase the difficulty of finding a breach of s 430(1)(c) absent a failure to be satisfied of a statutory precondition to the exercise of the power (cf Wu Shan Liang (supra) at 264; Darling Casino Ltd v NSW Casino Control Authority (supra) per Gaudron and Gummow JJ at 629; Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297, 307-8; Australian Securities Commission v Deloitte Touche Tohmatsu (supra) at 121D). 55 Our view as to the wrong turning which has occurred in relation to the construction of s 430 is confirmed by considering the decision-making process of the Court in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 and Logenthiran v Minister for Immigration & Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported), each delivered on the same day by the same bench, and the myriad of cases, including Thevendram (supra), which have followed this lead. It has involved very close attention to the whole course of the inquisitorial administrative proceedings of the Tribunal, including not only that put forward by the applicant, but a mass of information available to the Tribunal from other sources, in order to discern whether there was some fact or material which the Court considers should have been expressly dealt with by the Tribunal in its written statement but was not. This has involved the Court in assessing for itself, for example, the materiality of reports by various interest groups as to the conditions in overseas countries, and setting aside decisions because such a report was not expressly dealt with in formal findings, sometimes even if referred to in the body of the reasons. It has led to decisions being set aside because every factual claim of ill-treatment of the applicant or related persons has not been expressly ruled upon notwithstanding clear findings that the Tribunal rejects the whole basis of the applicant's claim because it does not believe the applicant. With respect to those who have taken a different view, we cannot accept that this is not to "trespass into the forbidden field of review on the merits" (Minister for Immigration & Ethnic Affairs v Guo (supra) at 580) contrary to the clear legislative intent (Eshetu (supra) at 577). 56 Furthermore, if this line of authority is correct, then lay decision-makers of all kinds are subject, by sections such as s 430 (including s 13 ADJR Act, s 28 Administrative Appeals Tribunal Act 1975 (Cth) and s 25D Acts Interpretation Act 1901 (Cth)) to more onerous obligations in giving reasons than judges from whom a full appeal on law and fact lie (cf Soulemezis v Dudley (Holdings) Pty Ltd (1987) 20 NSWLR 247; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, particularly per Hutley JA at 381). 57 In Darling Casino Ltd v NSW Casino Control Authority (supra) at 628 Gaudron and Gummow JJ described as fundamental the principle: "… that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned" (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (supra) at 272) 58 The written statement is meant, to take their Honours' word, to "inform". As Woodward J said in Ansett Transport Industries (Operators) Pty Ltd v Wraith (supra) at 507: "… as to the actual reasons and findings of the decision-maker which existed at the time of making the decision so that the recipient will understand why the decision was adverse in order to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging." See also Re Palmer (supra) at 209: "What is required … is a factual statement of what occurred at the time of the (decision). The actual reasons for the decision and the findings on material fact relied upon at the time must be set out, not the reasons or facts which may have subsequently come to light." 59 If the actual reasons and findings are set out, then the purpose of sections such as s 430 are served. Apart from any available judicial or tribunal review of the decision for any error so disclosed, representations may be made to the appropriate executive authorities or to members of Parliament, complaint may be made to the Ombudsman, or there can be public and political agitation. 60 Once materiality is detached from the statute, what is the touchstone? It cannot be that every fact which is not "definitely extraneous to any objects the legislature could have had in view" (R v Australian Broadcasting Tribunal; Ex parte 2 HD Pty Ltd (1979) 144 CLR 45 at 49; Hookham v The Queen (1994) 181 CLR 450 at 460), and so irrelevant, becomes material. Descriptions such as "significant", "of the essence", "important", "central" and so on are mere normative judgments with no legal point of reference. 61 The decision in Yusuf (supra) brings the point into sharp focus. At para 21 their Honours say: "21. If the RRT's obligation to set out findings on any material questions of fact is, like other obligations under s 430(1), subject to judicial review, the RRT itself cannot have the exclusive power to decide what is or is not material in a given case. If the statement of reasons contains no finding of fact on an issue it is no answer to say that if the RRT did not mention the issue it is therefore not material. Provisions of Division 4 of Part 7 of the Act contain references to "the issues arising in relation to the decision under review": s 423(1)(a) (applicant may give Registrar written arguments relating to such issues); s 425(1) (RRT must invite applicant to give evidence and present arguments relating to such issues). These provisions suggest that in any given case it can be objectively determined what are the issues. It is these issues which the RRT has to consider in its review of the decision under s 414 and on these issues it has to make findings on any material questions of fact, in the sense of "deal(ing) with the substantial issues on which the case turns" (Muralidharan, at 414)." 62 This analysis is in accordance with the opinion we have expressed, and, we should have thought, points to materiality as capable of being objectively determined by a court. 63 However, later, their Honours said: "30. Obviously enough, the nature of a particular asylum-seeker's claim and the way it is presented to the RRT must be examined in order to identify the material questions of fact. But this is not impermissible merits review in a new guise. … 35. In the present case, we discern no error in the way in which his Honour approached this aspect of the case. When assessing the relative centrality of issues raised - and hence their materiality - a specific instance of alleged maltreatment alleged, and upon which the asylum-seeker's fear of persecution for a Convention reason was said, in part, to be based, would usually constitute a material question of fact. Very often the success or otherwise of a claim will turn on the credibility the RRT attaches to the asylum-seeker's account of such incidents. 36. For the reasons his Honour gives, there was a failure to make a finding on what was plainly a material question of fact." 64 Their Honours appear to take the view that the applicant can make a fact material by alleging it, and that the Court, on judicial review, can decide what is material and what is not without finding either that the statute as a matter of construction made the fact material or that the Tribunal had decided that it was material. As these reasons make clear, we do not share this view. 65 We acknowledge that that approach is reflected in other decisions of the Court upon s 430, although it has rather been assumed than decided after considering the authorities to which we have referred. In Brackenberg v Comcare Australia (1995) 56 FCR 335 (referred to in Yusuf (supra)), the deficiency found was in relation to the equivalent of s 430(1)(d) rather than (c) (see 349G). It was a decision on particular facts, and it is not necessary for us to consider the correctness or otherwise of the result. We observe that the judge in that case had expressed views, when a member of the Full Court in Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255-6, which support, rather than detract from, our preferred view of the obligations pursuant to s 430(1)(c). 66 We have agreed with RD Nicholson J in finding that the omissions put forward here are not material, however that term is defined. For the purposes of this case, we therefore do not need to resolve all of the issues which arise as to the proper construction and application of s 430(1)(c), and refrain from doing so. To do so requires consideration of authority on this and cognate provisions well beyond that which was argued before us or appears in the reasons in Yusuf (supra). There is also a growing body of literature to be considered. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Whitlam and Gyles.

NEW SOUTH WALES DISTRICT REGISTRY N801 of 1999

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

JUDGES: WHITLAM, R D NICHOLSON and GYLES JJ

R D NICHOLSON J 67 This appeal is from an order of a primary Judge made on 30 July 1999 dismissing an application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 10 November 1998. By that decision the Tribunal affirmed a decision made by a delegate of the respondent to refuse the appellant a protection visa. The conclusion of the Tribunal was that it was not satisfied the appellant was a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Accordingly, the Tribunal concluded the appellant did not satisfy the criterion set out for the grant of a protection visa under s 36(2) of the Migration Act 1958 (Cth) ("the Act"). 68 At the hearing of the appeal, leave was given to the appellant to file an amended notice of appeal. Two grounds are relied upon. The first is that the primary judge erred in failing to find that the Tribunal had not followed procedures it was required to follow under the Act: see s 476(1)(a) of the Act. The second ground is that the primary judge should have found the Tribunal erred in law in reproducing in block form a previous Tribunal's summary of oral and documentary evidence. 69 The appellant is a citizen of the People's Republic of China. He arrived in Australia on 12 September 1994. On 14 March 1995 he lodged his application for a protection visa. The refusal of the application by a delegate of the respondent occurred on 29 March 1996. He sought review of the delegate's decision and the Tribunal affirmed that decision on 7 November 1997 ("the first Tribunal decision"). He then sought review by the Federal Court on 1 June 1998. That was successful, the Court setting aside the first Tribunal decision and remitting the matter back to the Tribunal to be determined according to law. On 10 November 1998 the Tribunal affirmed the decision not to grant the appellant a protection visa ("the second Tribunal decision"). 70 In reaching its second decision the Tribunal noted that the Department of Immigration and Multicultural Affairs and the Tribunal had both received a number of letters over the period February 1995 to October 1998. These letters concerned the appellant, claiming he was using his application for a protection visa to obtain permanent residence and was not telling the truth about his claims. The allegations in the letters were set out in the Tribunal's decision. The primary judge noted that the material indicates that the allegations were specifically put to the appellant. His Honour also said the Tribunal noted it was aware the author of the letters did not want his or her identity disclosed because the author was afraid of the appellant. 71 The circumstances just referred to are explicative of the ground of review relied upon by the appellant in his application for review to the primary judge. It was that the Tribunal had not given him a fair decision because the allegations in the letters were made by a person with a grudge against the appellant and the Tribunal had erred in relying on the letters. 72 In the reasons of the Tribunal it was said:- "The Tribunal has noted the letters it and the Department have received from someone alleging that Mr. Xu is endeavouring to obtain a protection visa by using false information. The Tribunal accepts that the letters are obviously written by someone with a grudge against Mr. Xu. It is also clear, from Mr. Xu's evidence that at least in some respects the author has a good knowledge of Mr. Xu's situation in China and in Australia. The letters add to the very real doubt that the Tribunal has about Mr. Xu's credibility" 73 The primary judge said the Tribunal had not believed the appellant in a number of specific findings in relation to particular matters so that, apart from the letters, there was a very real doubt in its mind as to the credibility of the appellant. He accepted the credibility was a central if not critical issue in the reasons for the Tribunal's second decision. However he was not satisfied there had been any procedural unfairness in the way in which the Tribunal approached the matter. It had done so with caution and a full appreciation that the letters were written by someone with a bias or grudge against the appellant. He considered the weight to be given to the letters in those circumstances was a question of fact and degree for the Tribunal. He, firstly, was not persuaded the letters materially affected the outcome of the decision and, secondly, considered the Tribunal was entitled, approaching the letters with due circumspection, to give such weight to them as it thought fit. The Tribunal also referred to a number of other matters raised by the appellant. 74 The first ground of appeal is particularised in two ways. The first particular is, in substance, in accord with the second ground and will be dealt with in consideration of that ground. The second particular is that the primary judge should have found the Tribunal failed to set out its finding on a material question of fact, namely, whether or not documents provided by the appellant, corroborating the appellant's account of arrest and detention after 1990, were forgeries. 75 With reference to this particularisation of the first ground, reliance is placed on s 430(1)(c) of the Act. Section 430(1) provides:- "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." 76 It follows from the second particularisation of the first ground that the appellant's case asserts that it was a material question of fact whether the documents provided by him corroborating his account of arrest and detention after 1990 were forgeries. 77 The crux of the case before the Tribunal was that as a result of his activities as a prominent activist in May and June of 1989 he was arrested, jailed and tortured for a period of a year. After his release on bail he claims he was required to report regularly to the Public Security Bureau ("PSB") and was detained and interrogated a number of times over following years. He submitted documents to the Tribunal which he claimed were copied from his PSB file and which corroborated his claims of arrest in 1989, his claim that he was bailed or paroled in 1990, his claim that he was detained in 1991 and his further claim that he was detained in 1992. 78 In the course of its reasons the Tribunal said: "As the Tribunal has not accepted that he played a prominent role in the pro-democracy movement in Shanghai, it follows that the Tribunal does not accept that Mr. Xu was detained as a consequence or that he was required to report to police regularly after his release. The Tribunal does accept that Mr. Xu is able to describe conditions in detention. It finds that this is possible for a number of reasons, ranging from his possible detention for another matter to his having had contact with others who were detained or by reading the reasonably extensive accounts of detention. The Tribunal also notes his claimed friendship with a PSB official who runs a large detention centre in Shanghai. The Tribunal does not find Mr. Xu's account of how he obtained documents to prove he was arrested to be other than self serving. It notes that the documents were presented after he had been refused a protection visa and obtained by his friend who is a senior police official. The Tribunal is not satisfied that Mr. Xu has a well founded fear of persecution for reason of his real or imputed political opinion as demonstrated by his activities during the 1989 pro-democracy movement in Shanghai. Even if the Tribunal is wrong and the documents are genuine and Mr Xu was so detained in 1989 and released in 1990, the Tribunal accepts the published evidence that there were more than a million people involved in the pro-democracy movement and that persons involved in the events of 1989 with a subsequent low political profile are able to carry on a normal life in China. The Tribunal does not accept that Mr. Xu was arrested in 1991 because he was suspected of anti-government activities or that he was detained in 1992 for seven days for harassing a policeman. There is no evidence other than his own account and given the credibility problems the Tribunal is not prepared to give him the benefit of doubt. Similarly, the Tribunal regards as self serving and not credible the claim, made at the hearing in October 1998 for the first time, that Mr. Xu was detained in 1994 because of his involvement with a radio journalist who had exposed high level corruption in Shanghai." 79 The first paragraph of the above quoted portion of the Tribunal's reasons occurs in the context of the Tribunal considering circumstances in 1989. Although sentences in the quoted first paragraph are capable of having wider application than 1989 and 1990, I am of the opinion that, taking the statements in the context of the paragraph, they should be considered to be referable to those years only. Consequently I accept the contention for the appellant that they cannot be taken to be findings in respect of 1991 and 1992. 80 It is on this absence of a finding of fact in relation to the documents submitted by the appellant allegedly corroborating his account in relation to 1991/1992 that the second particularisation of the first ground is founded. It is contended that in failing to make such findings the Tribunal failed to satisfy the requirements of s 430(1)(c) of the Act. 81 In my opinion there are three answers to this contention. The first is that findings by the Tribunal in relation to the matters relied on are not material questions of fact within the paragraph. In Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740, a Full Court comprised of Whitlam, R D Nicholson and Gyles JJ considered the construction of s 430(1) of the Act.On that issue it was said:- "The precise wording of s 430(1) needs to be considered. Leaving aside for the moment the effect of decisions of this Court concerning the sub-section, it seems to us that a plain reading of s430(1)(c) and (d) supports the following understanding of their effect: (1) paragraphs (c) and (d) are to be distinguished because the latter refers to "evidence or any other material" whereas the former refers to "findings on any material questions of fact." The implication from this is that evidence is to be distinguished from material questions of fact. This accords with the long recognized distinction drawn between facts in issue or principal facts and facts relevant to the issue: Phipson on Evidence 14th ed 1990 pars 7-01 and 7-02. The result is that the statute reinforces the distinction between material questions of fact and pieces of evidence. (2) the sub-section itself does not provide any test of materiality. "Material" is defined in Butterworths' Australian Legal Dictionary as "important, essential or relevant." The word material relates to the reasons for the decision. What is material will be determined by reference to the requirements of the statute: cf Abebe v Commonwealth (1999) 162 ALR 1 at 195 and Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. Because of the distinction drawn between pars (c) and (d) and because of the exclusion from the jurisdiction of the Court of the grounds of judicial review based on relevance (see s 476(1)(d) and (3)(d) and (e) of the Act), the test of materiality will not be determined by relevance alone. It may be that notions of "essentiality" or "significance" could inform delineation of the concept of materiality but it is not necessary here to develop that issue further. There will always, however, be the need for judgment by the Tribunal and courts of review as to whether questions of fact do or do not come within the circle of materiality. Important to that will be consideration of the nature of the claim before the Tribunal. (3) where the findings of fact of the Tribunal are positive findings of fact, par (d) will require reference in the written statement to the evidence or any other material on which those findings are based. (4) where the findings of material fact of the Tribunal are negative findings of fact, that is findings rejecting the existence of material questions of fact, par (d) may require the written statement to refer to the evidence or other material on which the rejection of the fact is based, depending upon the basis for rejection. In our view, there is nothing in a plain reading of the section which requires the Tribunal to set out the evidence which is contrary to the findings of the Tribunal on any material questions of fact where such evidence is not evidence upon which a positive or negative finding is based. It is against this background that we come to the decisions of the Court concerning the application of s 430(1) in the circumstance just mentioned. The chain of decisions and the conflicts within it have been set out by Drummond J in Baljit Kaur Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1126. It is sufficient for the present to state that the view that s 430(1) requires reference to evidence contrary to the findings of the Tribunal is supported by the decisions of the Full Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, see particularly Wilcox J at 30-31; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; and Thevendram v Minister for Immigration and Multicultural Affairs (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported). The contrary view was held by the majority of the Full Court in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 (Branson J dissenting) and Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940. In Addo at par 24 the Court (Spender, O'Connor and Emmett JJ) said: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s430(1) of the Act." At par 31 the same Court said: "It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." In our opinion the view of the Full Court in Addo is to be preferred. This follows from the considerations which we have set out above. We therefore approach the appellant's case on the basis that a proper understanding of the requirements of s 430(1) shows that it does not require a Tribunal to set out evidence or any other material on which the findings of fact were not based in that such evidence was contrary to those findings." 82 It follows that material questions of fact are to be determined by reference to the statutory context and not by reference to pieces of evidence. 83 Secondly, it follows there was no obligation on the Tribunal even pursuant to s 430(1)(d) - if that be invoked in the aid of the appellant - to refer to pieces of evidence inconsistent with the findings on material questions of fact made by the Tribunal. 84 Thirdly, in any event here the Tribunal said, as appears in the final paragraph of the quoted portion of its reasons, that "there is no evidence other than his own account" in relation to 1991 and 1992. So far as this is a failure to address the matters now relied upon for the appellant it is an error of fact. That is not an error of law within the jurisdiction of this Court to review: see s 476 of the Act. 85 For these reasons I consider the second particularisation of the first ground of appeal is not made out. 86 It is then necessary to consider the effect of the reproduction in block form in the reasons of the second Tribunal of the first Tribunal's summary of the oral and documentary evidence: see ground 2 and first particularisation of ground 1. It is contended for the appellant that this constitutes a constructive failure to independently review the evidence and hence a constructive failure to comply with s 430(1)(d) of the Act. Furthermore, it is contended that the failure by the Tribunal to make findings in relation to the position of the appellant in relation to 1991 and 1992 provides further confirmation of the Tribunal's failure to independently review the evidence. 87 The portions of the reasons of the first Tribunal decision which were repeated in the reasons of the second Tribunal decision constitute 19 paragraphs. They appear in the early portion of the reasons of the second Tribunal under the heading "claims and evidence". They describe successively written submissions to the Department, the appellant's interview with the Department, written submissions made by the appellant to the Department after his interview, documents submitted to the Tribunal before the hearing and submissions made on behalf of the appellant at the first Tribunal hearing. 88 In Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996)185 CLR 259 at 266 Brennan CJ, Toohey, McHugh and Gummow JJ said: "a statement of reasons reviewable under the AD(JR)Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions." The paragraphs here in issue are not "verbal formulae routinely used by persons making similar decisions". Nevertheless, I consider the reasoning implicit in this statement by the High Court is applicable to them. 89 The paragraphs in issue reproduced, save for minor alterations, the matters referred to and they are all patently statements of fact. It is not contended for the appellant that the summary repeated is inaccurate. The second Tribunal was entitled to treat the summaries prepared by the predecessor as reliable. 90 Furthermore, it was submitted for the respondent that the transcript of the second Tribunal hearing resolves any doubt as to whether that Tribunal conducted an independent review and digested the evidence. The hearing commenced at 11am and concluded at 3.06pm. It involved lengthy questioning of the appellant concerning his claims in a manner which it is submitted could only be consistent with a careful examination by the Tribunal of the Departmental and Tribunal files. That submission was not answered in the case for the appellant. 91 In Addo v. Minister for Immigration and Multicultural Affairs [1999] FCA 940 at par 34 the Court referred to the fact that its attention had been drawn on behalf of the appellant to an identity in the reasons of the Tribunal in Addo to the reasons of the Tribunal in another case. There what was involved was the Tribunal's assessment of credibility and a conclusion concerning peace in Somalia. In my view these are highly distinguishable from the substance of the paragraphs which were repeated in the reasons of the second Tribunal decision from the reasons of the first Tribunal decision. 92 Accordingly, I do not consider the appellant's case makes out any constructive failure to independently review and digest the evidence, even if such failure when made out could be brought within s 430(1)(d) of the Act. No reliance has been placed on behalf of the appellant on s 476(1)(g) to contend there is no evidence or other material to justify the making of the decision by the Tribunal and no doubt for good reason. 93 It is on the above basis that this appeal can be resolved. I do not join in the other reasons of the other members of this Court which address the question whether a failure to comply with s 430 of the Act gives rise to a ground of review pursuant to s 476(1)(a) of the Act. My essential reasons for not doing so is that it is not necessary for the resolution of the appeal. This was not a case where counsel for the applicant arrived at the door of the Court having been given notice the issue would arise. Furthermore, the recent decision of another Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 to contrary effect was a case in which the issue arose directly as the principal issue for argument. Yusuf purported to what it described as "a uniform line of Full Court authority …" Given the recent history of division of views in the Court concerning the effect of s 420 of the Act, brought to an end by the decision of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, there is need for some caution in opening up a similar division in relation to s 430 where it is not necessary to do so for the purpose of resolving an appeal. 94 Issues which I consider would benefit from more thorough argument are: (a) what constitutes "materiality" in relation to questions of fact; (b) whether s 430 addresses "procedures" for the purposes of s 476(1)(a); (c) whether the requirements of s 430 are "in connection with" the "making" of the decision; and (d) whether the line of authority referred to in Yusuf has the quality of uniformity referred to in the reasons in that case. 95 For these reasons I consider that the appeal should be dismissed. There should be an order that the appellant pay the costs of the respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON.

Associate: Dated: 17 December 1999 Counsel for the Appellant: Mr CD Jackson

Solicitor for the Appellant: Samir's Multicultural Legal Services

Solicitor for the Respondent: Australian Government Solicitor