"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.