Minister for Immigration and Multicultural Affairs v Yusuf
[2001] HCA 30(2001) 62 ALD 225
(2001) 75 ALJR 1105
(2001) 180 ALR 1
(2001) 206 CLR 323
(Decision by: Kirby J)
Minister for Immigration and Multicultural Affairs
vYusuf
Judges:
Gleeson CJ
Gaudron J
McHugh J
Gummow J
Kirby JHayne J
Callinan J
Legislative References:
-
Case References:
-
Judgment date: 31 May 2001
Decision by:
Kirby J
[98] These proceedings concern the obligation of the Refugee Review Tribunal ("the Tribunal") [54] , pursuant to s430(1) of the Migration Act 1958 (Cth) ("the Act"), to prepare a written statement setting out its decision, reasons, findings on material questions of fact and reference to the evidence when disposing of an application for a protection visa under the Act.
[99] The central question for decision concerns the scope of the Tribunal's obligation under s430(1). A second question is whether a failure to meet the requirements of s430 is reviewable by the Federal Court, having regard to that Court's narrowed jurisdiction [55] . If judicial review is available, a further question arises as to the remedies appropriate to the case under s481 of the Act.
[100] In approaching these questions, which have been answered in different ways by majority [56] and minority [57] decisions of the Full Court of the Federal Court, I remind myself of the remarks of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [58] . His Honour observed that the requirement in s430(1) for the Tribunal to "prepare a written statement dealing with certain matters ... thereby furthers the objectives of reasoned decision-making and the strengthening of public confidence in that process". But it does not "provide the foundation for a merits review of the fact-finding processes of the Tribunal".
[101] This Court is obliged to resolve the differences that have emerged in the Federal Court. The resolution lies in elucidating the meaning of the Act and in reconciling the achievement of the objectives mentioned by Gummow J in a way that avoids the risk of error to which he drew attention.
The facts, course of proceedings and legislation
[102] Four proceedings are before this Court. Two concern Fathia Mohammed Yusuf ("Ms Yusuf") and two concern Oganes Israelian ("Mr Israelian"). Primarily, each is a respondent to an appeal brought, by special leave, from a judgment of the Full Court of the Federal Court. In each case, the appeal is brought by the Minister for Immigration and Multicultural Affairs ("the Minister").
[103] Against the possibility that they might fail in such appeals, Ms Yusuf and Mr Israelian, defensively, commenced proceedings in the original jurisdiction of this Court. Each sought the issue of writs provided by s75(iii) and s75(v) of the Constitution directed to the Minister (and the Tribunal), in effect, to prohibit the implementation of the respective decisions of the Tribunal (and related relief to quash those decisions). The Tribunal has submitted to the orders of this Court. As a practical matter, the latter proceedings need to be determined only if the Minister succeeds in the appeals.
[104] The background to the two cases is sufficiently stated in the reasons of Callinan J [59] . His reasons also contain references to the unanimous opinion of the Full Court in Yusuf [60] and the divided opinion of that Court in Israelian [61] . Because Callinan J's reasons set out in some detail the dissenting opinion of Emmett J in Israelian [62] and the concordant joint opinion in Xu [63] , with which his Honour agrees, it will be necessary for me to supplement these reasons with references to the opinions of other judges of the Federal Court. With comparatively few exceptions [64] , they have repeatedly favoured an opinion contrary to that now adopted by a majority of this Court [65] .
[105] Because of differences that had earlier emerged in the Federal Court, the preliminary issue concerning the scope of s430 was committed for argument before a Full Court of the Federal Court exceptionally constituted by five judges [66] . The controversy was resolved in favour of a broad view of the statutory requirements. A majority (Black CJ, Sundberg, Katz and Hely JJ) adhered to the approach which, until Xu, had been consistently followed in the Federal Court. However, Kiefel J preferred the contrary line of reasoning. Callinan J describes Kiefel J's dissent in Singh as a "strong ... opinion" [67] . But the strength of numbers, both in Singh and in the many cases in the Federal Court where the preliminary issue has been argued and resolved, under the earlier provisions of the Act [68] and in relation to its current form [69] (and under other federal legislation to like effect [70] ) has been to the contrary [71] .
[106] The preliminary issue of the scope of s430 was bound to arise for early decision of this Court, not only because of the conflicting opinions in the Federal Court but also because the issue presented has the potential to arise in many applications to the Federal Court for judicial review of a decision of the Tribunal. By s430, the Tribunal, where it makes its decision on a review [72] , must prepare a written statement setting out the specified matters [73] . What is to happen where the person affected complains that the "written statement" provided does not conform to the requirements laid down in the Act? According to the majority opinion in Xu [74] , unless the defect in the written statement involves a failure on the part of the Tribunal to set out findings of fact and reasons required by reference to the statutory criteria (on which the decision to grant or refuse a visa depends [75] ) no relief is available in the Federal Court. Unless, in such circumstances, the person affected can successfully invoke relief in this Court, under s75 of the Constitution, he or she must simply accept the defective statement of the Tribunal and the result (ordinarily removal from Australia) that follows. This is not a conclusion that immediately appeals to me.
The background and common ground
[107] Competing arguable constructions : As with any difficult problem of statutory construction, upon which opinions in other courts have differed, it must be accepted that there are arguments for each of the competing interpretations. Words are ideas wrapped in language. The perception of the meaning of words is influenced by the understanding, experience and attitudes of those who hear or read them. It is therefore unsurprising that differences of the present kind should arise from time to time, as they do here.
[108] No binding determination : In Abebe v The Commonwealth [76] , three members of this Court, in the course of their reasons, made observations about the "procedures" which the Act requires the Tribunal to observe. They did so without mentioning s430 of the Act [77] . It was properly conceded by the Minister that the specific question of the relationship between s430 and s476(1)(a) of the Act [78] was not examined in that case. In Singh, the joint judgment, correctly in my view, described the passages in Abebe relied on by the Minister as "too slight a foundation" upon which to base a view that s476(1) does not extend to the requirements of s430 [79] . Accordingly, the present problem must be approached on the footing that there is no binding decision of this Court on the question now before it. Nor are there considered dicta that lend support to either of the competing constructions.
[109] A common federal standard : The meaning of s430 must be determined having regard to the fact that the section reflects, with immaterial variations [80] , what is substantially a common federal standard for application to administrative decision-makers in the making of decisions (and in the provision to those affected of the reasons for such decisions) [81] . To the extent that s430 reflects this common federal standard, it reinforces the observations about its purpose to which Gummow J referred in Eshetu [82] .
[110] At the time s430 was introduced into the Act, and many like provisions were adopted by the Parliament, this Court had accepted [83] that the common law did not impose on administrators a duty to provide reasons to those who were affected adversely by their decisions. The enactment of provisions such as s430 must therefore be viewed as an important reform. They are designed to improve available remedies [84] and to contribute to more transparent and accountable public administration in Australia.
[111] The Minister did not contest the importance of s430. His arguments were addressed solely to the extent to which, by the language of the section, the reform operates. The duty of a court is to give effect to the purpose which it attributes to the Parliament, as that purpose is derived from the language in which the Parliament has expressed itself [85] . But in finding meaning, purpose is an important guide.
[112] An objective, not subjective, standard : One reading of the joint reasons in Xu might suggest that the majority were confining what was a "material" question of fact to the exclusive opinion of the Tribunal itself [86] . As a matter of law, such self-definition is impermissible. To hold otherwise would be to return to the error of the majority in the House of Lords in Liversidge v Anderson [87] . It would be to embrace the mistake which Lord Atkin expressed provocatively by reference to Alice, Lewis Carroll's perceptive observer of irrationality [88] :
"'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean - neither more nor less.'
'The question is,' said Alice, 'whether you can make words mean so many different things.'
'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'"
[113] A similar question may be posed here. When the Parliament, by providing that a repository of power under an enactment "must prepare a written statement" that sets out certain matters including "findings on any material questions of fact", does that mean that it is left entirely to the decision-maker to decide what he or she shall "set out" in the "decision"? Can it be left exclusively to the Tribunal to decide which "questions of fact" are "material"? Were this the correct interpretation of s430(1)(c), the error identified by Lord Atkin would be repeated more than fifty years later. In my opinion, such a conclusion could not be tolerated in a system observing the rule of law. Least of all should it be adopted after fifty years of administrative law enlightenment [89] .
[114] To the extent that some of the reasoning of the majority in Xu might suggest otherwise, I would not take their interpretation of s430(1)(c) to propound a purely subjective standard of what is a "material" fact. The decision-maker's opinion of what is required by the section is not immune from judicial measurement. Any suggestion to such effect must be firmly rejected.
[115] Nevertheless, the view propounded in Xu limits review to a decision-maker's failure to make, record and explain a finding on an "ultimate fact", that is, one which the statute expressly or impliedly lays down to constrain the decision-maker. This proposition is reflected in the following sentence in the majority's reasons in Xu [90] :
"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."
[116] The essential point of difference, therefore, is not between those who hold to a purely subjective standard and those who hold to an objective one. It is between two conceptions of the objective standard. One of these confines the applicable obligation to the setting out of "ultimate facts", as laid down by the legislation. The other is not so confined. Therein lies the controversy.
[117] A practical and realistic standard : There is common ground that it would be intolerable if a view were taken of the requirements of s430 that would oblige a decision-maker to proceed in a line by line refutation of every submission of a party [91] . The subject matter of judicial review remains the decision itself, rather than the "written statement".
[118] Nevertheless, the purpose of imposing on bodies such as the Tribunal duties of the kind expressed in s430 of the Act clearly includes that of facilitating the process of judicial review. In the past, such review could easily fail because it was confined to a "record" that omitted essential elements of the decision, reasons, findings and evidence. Accordingly, a view must be taken of the obligation that does not defeat, or unreasonably frustrate, the achievement of its beneficial legislative objective. In the real world of administrative decision-making, that aim must also accept standards of performance that are achievable, not unrealistically heroic [92] . The majority in Singh addressed this important concern in the following passage, with which I agree [93] :
"The [Minister] submits that it would be absurd if failure to observe procedures of that type led to the decision on review being quashed. We agree. But the power of the Court to make orders under s481 is discretionary, and the Court would be justified in declining to make any order on the basis of ... trivial and inconsequential contraventions. The discretion extends to whether or not to grant relief if a basis for relief is otherwise established, as well as to the form of any relief."
[119] Discretionary relief and practical outcomes : S481, referred to in the foregoing passage, is not set out in the reasons of Callinan J [94] . As the Federal Court noted in Singh [95] , where a statement of reasons is part of a statutory requirement for the lawful exercise of a decision-making power, a substantial failure by a tribunal to state the reasons for its decision may constitute an error of law which vitiates the decision [96] . Theoretically, a case might therefore arise where the decision, reasons, findings and reference to the evidence mandated by s430, set out in the "written statement", are so defective that the purported "decision" is not a "decision" at all or indicate that no "review" has in truth occurred. It is unnecessary to explore that possibility in the present proceedings. Nor is it appropriate to consider the relief (if any) that would be available in the Federal Court were such an extreme case demonstrated.
The Minister's narrow construction of s430 and s476(1)(a)
[120] The Minister propounded a narrow construction of s476(1)(a) of the Act and hence of the Federal Court's power to review decisions involving a complaint of non-compliance with s430. I accept that there are arguments in favour of his approach. I set them out in order to ensure that my conclusion is informed by weighing the considerations that tell against it:
[121] First, there is the context. The Minister argued that it was not enough to view s430 as a beneficial provision, intended to have "teeth". Whilst it is one of several similar enactments, it appears in legislation which already severely circumscribes the facility of judicial review in the Federal Court. Review in that Court for a failure to comply with s430 would arise only where such default amounted to non-observance of "procedures that were required by [the] Act or the regulations to be observed in connection with the making of the decision" [97] . In judging what such "procedures" are, it is relevant to adopt a partly cautious approach to the ambit of the Federal Court's powers. This is because the general purpose, revealed by s476 of the Act, is to limit such powers to particular grounds and to exclude some grounds that would otherwise apply [98] .
[122] Secondly, the term "procedures" was said to be inapt to cover the Tribunal's preparation of a written statement of a decision, reasons and findings. This was because such a written statement would ordinarily be made only after all proceedings (and thus "procedures") in the Tribunal were concluded. It would be prepared in private.
[123] Thirdly, the Minister contended that the language of s430 took its requirements outside the description of "procedures" in s476(1)(a). The preparation of a written statement is required by s430(1) only "[w]here the Tribunal makes its decision". Thus, it was argued, the contemplated "written statement" follows the making of a decision, rather than being involved with it. This construction of s430 gained further support, so it was submitted, from the fact that the only "procedures" which s476(1)(a) of the Act envisages as being within the relevant "judicially-reviewable decision" are those "in connection with the making of the decision". Hence, notwithstanding the broad words used (" in connection with "), s476(1)(a) did not, by its terms, attach to the post -decision preparation of the written statement contemplated by s430(1) of the Act. This was the crucial textual argument for the Minister's position [99] .
[124] Fourthly, reliance was placed upon the background material surrounding what was later to become s476(1)(a) of the Act. An Explanatory Memorandum suggested that the "procedures" referred to in that paragraph were those set out in the statutory code of procedures contained in the Act [100] . That "code" was designed to replace the common law rules of natural justice governing the Tribunal's procedures. On this footing, s430 was not concerned with the type of "procedures" for which s476(1)(a) provided. Had the contrary been intended, the Explanatory Memorandum might have been expected to refer to it explicitly. A different word of broader ambit would then have been used to make it clear that defaults in compliance with s430 of the Act were within the grounds upon which a judicially reviewable decision could be reviewed by the Federal Court.
[125] Fifthly, the Minister drew attention to the exclusion from the powers of the Federal Court of review of a decision on the ground of "an improper exercise of the power" [101] where the error alleged was that of "failing to take a relevant consideration into account in the exercise of a power" [102] . According to this argument, such express exclusion made it difficult to introduce, "by a side wind" [103] , the omission to take a relevant consideration into account in discharging the obligations imposed by s430.
[126] Sixthly, much emphasis was placed on the practical scheme of the Act and the undesirability of turning judicial review into a reconsideration by a court with limited jurisdiction of the factual merits of the case. To the extent that the Federal Court was invited to "comb through" the "written statement" required by s430, in order to scrutinise for adequacy the decision, reasons, findings and reference to evidence, it ran the risk of allowing the Court to intrude into the fact-finding process which, by law, is reserved to the Tribunal. Carried to its logical extreme, it was suggested, such an approach would subject all written statements of the Tribunal to the very line by line scrutiny that past decisions of this Court have discouraged [104] . It would involve the Federal Court in imposing its view of materiality, relevance, necessity and appropriateness of the facts and reasoning about them for that of the Tribunal, which is the repository of the power selected by the Parliament.
[127] These textual and contextual arguments, together with the conception advanced for the proper (and limited) function of the Federal Court, led to the construction of the Act favoured in Wu. That construction adopted a narrow approach, both as to the obligation imposed on the Tribunal by s430 and as to the grounds of review available in the Federal Court pursuant to s476(1)(a) of the Act.
[128] So far as s430 was concerned, it was submitted that the obligations there provided were limited. The obligation to set out "findings on any material questions of fact" in s430(1)(c) was said to apply only to those questions of ultimate fact that were imported by the express terms of the legislation. So far as s476(1)(a) was concerned, any omission in complying with s430 did not give rise to a ground that "procedures" required by the Act had not been observed. There being no other applicable ground (indeed s476(3)(e) excluding such omissions from the grounds of judicial review) no review was available in the Federal Court upon such complaints. Relief, if any, was confined to that available in this Court under the Constitution.
[129] The foregoing obviously represents an arguable case. However, that case does not persuade me. I share the opinion that has gathered the support of the great majority of the judges of the Federal Court. Because a majority of this Court are of the contrary view, I must explain why.
The broader view of s430 and s476(1)(a) is preferred
[130] A major reform : broad construction : It is important to recall the extent of the innovation introduced by s430 of the Act, and its equivalents in other federal legislation [105] . Prior to that reform, not only were many aggrieved persons left in the dark as to the reasons of the decision-makers, they were also often left without effective means of pursuing administrative or judicial review. The old approach of administrative law was often to keep things secret [106] . Persons adversely affected by federal administrative decisions would frequently be defeated by the absence of reasons, findings and reference to evidence in the "record", upon which judicial review depended.
[131] In jurisdictions, including within Australia, which do not enjoy the benefit of this significant reform, an attempt has sometimes been made to enlarge, beyond its original history, the concept of the "record" at common law, so as to enhance the materials available for judicial review [107] . That attempt received a measure of discouragement from this Court [108] . One of the reasons that led to the rejection of the notion that the common law had advanced to the point of requiring reasons to be given by administrators acting under statutory powers, was the fact that explicit legislation (of which s430 is a good example) had been adopted by the Federal Parliament. That, it was held, was the course which the path of reform should follow [109] . It is unnecessary in the appeals to consider the continuing authority on this question although in a proper case, in my view, the matter should be reopened [110] .
[132] It would be inconsistent with the obvious importance of the reform enacted by provisions such as s430, to endorse a narrow view of the section. Because of its reformatory operation, it is not a section to be given a very literal or "pedantic" [111] construction. On the contrary, it should be given an ample and beneficial construction [112] .
[133] Facilitating effective judicial review : The purpose of provisions such as s430 is to oblige disclosure of the reasoning of the decision-maker and to provide the person affected with the essence of that reasoning in order for that person either to accept the decision as one open in the circumstances [113] or to be advised of legal rights of appeal, review or other redress [114] .
[134] If s430 were to be read as limited to requiring the setting out only of those findings related to the applicable statutory criteria [115] , the facilitating purpose of the section would be undermined. The decision would not, then, ordinarily be rendered transparent. The "written statement" would often partake of the very kind of bland uncommunicative (and unchallengeable) decision which provisions such as s430 of the Act were enacted to reform. Moreover, to secure nothing more than "findings" on facts required by the terms of legislation would, in many cases, deprive the persons adversely affected of any real foundation for securing proper advice and pursuing further remedies.
[135] I cannot accept that the inclusion of s430 of the Act (and its equivalents in so many other federal Acts) had such a shallow and limited purpose. It is not the purpose that has heretofore been attributed to such provisions. Instead, the radical nature of the reform and its remedial objects have usually been acknowledged. Its contribution to improved public administration has been widely discussed [116] .
[136] Objectively material facts must be stated : The common ground between the parties that the standard required by s430(1) is both obligatory ("must") and objective contradicts any suggestion that it can be left to the Tribunal, unsupervised, to determine what are the "material questions of fact" that it will choose to include amongst its "findings" [117] . Its obligations are to set out findings on any fact which is objectively "material" to the decision. There is nothing in s430(1)(c) to limit the kind of materiality there mentioned to the ultimate facts required by the statute. The courts should not gloss s430. Particularly, they should not do so in a way that frustrates the achievement of the reformatory purposes of the section.
[137] If, objectively, a question of fact is "material" to the issues relevant to the Tribunal's decision, it must be "set out" as s430 commands [118] . In Singh, the majority described the true test of materiality in terms that I would adopt [119] :
"[I]f a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with. ... A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists."
[138] With respect, I do not consider that this construction involves substituting for the word "any" in s430(1)(c) of the Act the word "the" [120] . The word "any" is itself a word of ample width. But it cannot mean "any" facts at all that the Tribunal alone chooses to treat as "material". Such a construction would take us back to Humpty Dumpty [121] . The word "any" emphasises the ambit of s430(1)(c). If a question of fact is objectively immaterial, it can be ignored. If, however, it is amongst "any material questions of fact" relevant to the decision, it must be set out in the statement required by s430.
[139] Disclosing the real reasons for decision : Reinforcement for my conclusion is found in the fact that "materiality" and "relevance to statutory criteria" are two related, but different concepts [122] . The latter will necessarily be included in the former. Application of the statute is the primary task of the Tribunal. It must therefore make such findings of fact as the statute requires in the particular case. Nevertheless, as many immigration decisions demonstrate, the "material questions of fact" that explain the real "decision" of the Tribunal, and represent the essence of its "reasons", will commonly involve no particular element of the statute at all. Nor will the related "evidence" or "other material" upon which such findings of fact were based be confined to the terms of the Act. Typically, the most "material questions of fact" in these cases relate to the credibility of the applicant and to whether allegations of events far away, and often long ago, are to be believed or disbelieved.
[140] If, therefore, s430 is to apply in the real context of the operations of the Tribunal it necessitates disclosure of considerations which a restriction solely to questions of fact required by the Act might not elicit. Furthermore, it cannot be assumed, from the fact that the Tribunal omits any reference to a "question of fact" apparently critical to the applicant's case, that it has necessarily considered and rejected that fact within its fact-finding role. Mistakes occur. Important questions of fact, which are objectively "material", can easily be overlooked. The requirement that the "written statement" set out findings on questions of fact that are objectively "material" is an assurance against such error or oversight [123] . It is a requirement that this Court should not read down. If it is so read in this case, it will necessarily have limiting and adverse consequences for the application of other like statutory provisions. This would be to the detriment of good public administration. This Court should not lend its authority to such a result.
[141] In Elliott v Southwark London Borough Council [124] , James LJ observed:
"The duty to give reasons pursuant to statute is a responsible one and cannot be discharged by the use of vague general words which are not sufficient to bring to the mind of the recipient a clear understanding of why [his or her] request ... is being refused."
Likewise, in Iveagh (Earl of) v Minister of Housing and Local Government [125] Lord Denning said:
"The whole purpose of the enactment is to enable the parties and the courts to see what matters [the decision-maker or Tribunal] has taken into consideration and what view [it] has reached on the points of fact and law which arise. If [the Tribunal] does not deal with the points that arise, [it] fails in [its] duty: and the court can order [it] to make good the omission."
The foregoing words apply with even greater force to s430 of the Act, given its language and history.
[142] Relevance of the international law context : A reinforcement of this approach may also be found in consideration of the proper relationship between the Tribunal and the Federal Court, and the exclusion of the latter from consideration of the facts or merits of the case, upon which the Minister placed so much emphasis. It is precisely because the Tribunal has substantially exclusive power and jurisdiction to determine the facts of an application (and because such determination cannot be reversed on factual grounds by the Federal Court even if "so unreasonable that no reasonable person could have ... exercised the power" in such a way [126] ) that the protective operation of s430, requiring the Tribunal to set out the matters specified, should not be construed narrowly.
[143] The Tribunal has onerous responsibilities. As Gummow and Hayne JJ observed in Abebe [127] , "an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself". Moreover, the Tribunal is entrusted with the duty to apply to disputed cases Australia's international obligations under the Refugees Convention [128] . That Convention contains provisions of international law having a high humanitarian purpose [129] . At stake is not only the fate of the particular applicant but also Australia's compliance with important international obligations that it has accepted.
[144] These considerations represent still further reasons why the obligations imposed by s430 are not to be given a narrow construction. The "written statements" of the Tribunal are available not only to the persons seeking review and to their representatives. They are also available to the United Nations High Commissioner for Refugees and to the many others, in Australia and beyond, who watch the way this country conforms to international law. In such a context, it is not unreasonable to require that the Tribunal's written statement should, in the terms of s430 of the Act, "set out the findings" on "any ... questions of fact" that are objectively "material". This is what the Parliament has enacted. The section recognises the applicability, in this sensitive context, of the general federal standard observed in Australia. In the unlikely event that, for cases of applicants for refugee status and protection visas, some lesser standard were deemed appropriate by the Parliament, it would be necessary, so far as I am concerned, for the lower standard to be expressed in different, narrower statutory language.
[145] Preparing the statement is a " procedure ": For similar reasons, I would not impose on s476(1)(a) of the Act a construction of the word "procedures" that would take the decision-making procedures in s430 needlessly out of the grounds of judicial review in the Federal Court. The fact that such grounds of review have been severely curtailed by the Act is not a reason for this Court, by an enthusiastic construction of s476, to add to the curtailment. To the extent that it does so, this Court merely invites an increasing number of applications in its original jurisdiction, where such curtailment is constitutionally impossible.
[146] Moreover, in my view, the Parliament has not excluded review of non-compliance with s430 of the Act. The word "procedures" in s476(1)(a) (which states admissible grounds of review) is broad enough to include the process of decision-making in s430. The "procedures" required by the Act do not cease when a hearing before the Tribunal has concluded.
[147] There is nothing in the steps required for the "written statement" that takes them outside the ordinary meaning of the word "procedure" [130] . According to The Macquarie Dictionary, that word, in its primary sense, means no more than "the act or manner of proceeding in any action or process; conduct" or "a particular course or mode of action". Or (relevantly) the "mode of conducting legal ... especially litigation and judicial proceedings". None of these definitions is inconsistent with the "procedure" of setting out the matters specified in s430 [131] .
[148] It is not determinative, but surely not unfair to mention, that when the Parliament enacted provisions equivalent to s430 in other legislation, the heading to the section, obliging the preparation of a written statement of the relevant kind, explicitly described the action as a "Procedure" [132] . Many such provisions are scattered throughout the federal statute book [133] . Clearly enough, many of those who drafted such federal legislative provisions, analogous to s430 of the Act (and by inference those who have enacted such provisions), have considered the obligation as a matter of "procedure". The Minister's argument to the contrary is untenable.
[149] The statement is " connected with " the decision : The argument advanced about the limits of s476(1)(a) of the Act does not become any stronger by reference to the terms of that paragraph. It is true that the procedures open to review are expressed in terms of "the making of the decision" and not "the decision" as such. But the words linking the "procedures" contemplated with "making of the decision" could hardly be wider. They are "in connection with". Thus "procedures" may be "in connection with the making of the decision" although, on a reading of s430, the decision is already made and the Tribunal has moved to the stage of preparing the "written statement" required [134] . Those words expand the ambit of the "procedures", non-observation of which gives rise to a ground of review in the Federal Court.
[150] Once it is accepted that s430 lays down "procedures" which the Act obliges the Tribunal to observe, the mere fact that those "procedures" must be observed after the decision is made does not render them any less connected with "the making of the decision". In any event, in practice, it may be contemplated that the "written statement" containing the specified matters will ordinarily be prepared immediately following the making of the decision. Common experience teaches that the process will be a continuous one. No judicial or other decision-maker, who keeps an open mind to the end of the process, has not prepared written reasons without sometimes altering his or her decision when it is found that the reasons "will not write" [135] .
[151] Making the right to reasons effective : The Explanatory Memorandum upon which the Minister relied is also not very helpful. Whilst it may well have been expected that the paragraph that was to become s476(1)(a) would primarily apply to the "code of procedure" (being the most important "procedures that were required by this Act") the expression used is not so confined. Moreover, as was pointed out by the majority in Singh, at the time of the introduction of the earlier equivalent of s476(1)(a) into the Act, the giving of reasons was not thought to be required in Australia by the common law rules of natural justice [136] . This is another reason for describing the requirement to give reasons under s430 of the Act as a statutory "procedure" [137] .
[152] Like the other "procedures", specifically introduced by the Act to substitute for the common law, the provisions of s430 afford supplementary "procedures". It is not unreasonable, viewing the Act as a whole, to assume that the Parliament contemplated that those words would constitute more than a pious exhortation to the Tribunal. Where "not observed" it was intended, in the context, that they would afford a "ground" for review by the Federal Court.
[153] Minimal dangers of merits review : This conclusion can be drawn more comfortably because the spectre of needless and unrealistic intervention of the Federal Court, intruding into matters of the merits, can easily be rejected. There are many controls to prevent it occurring. Those controls include the repeated instruction of this Court that judicial review is only concerned with lawfulness and that it exceeds the function of such review to extend it, as such, into a reconsideration of the factual merits divorced from the law [138] . This Court has also repeatedly observed that the review conducted by the Federal Court, in respect of the decisions of the Tribunal, must not become a pernickety and artificial scrutiny of the language of the Tribunal's reasons, divorced from attention to the decision itself. It is the decision that is under review. In question is the impression which the statement of reasons leaves, given the almost unrestricted ambit which the law affords to the Tribunal's fact-finding [139] .
[154] In addition to these controls there is the consideration particularly relevant to decisions of the Federal Court under the Act. As the terms of s481 of the Act [140] make plain, the making of orders by the Federal Court is discretionary. In accordance with s481, "the Court would be justified in declining to make any order on the basis of ... trivial and inconsequential contraventions" [141] . It is only in the exercise of its discretion, where a basis for relief is otherwise established, that the Federal Court is called upon to look at the substance of the matter, and at the decision itself which is the subject of review.
[155] Unless there were substance, occasioning disquiet because of some aspect of the "statement of reasons" that appeared seriously inadequate, or because some fact objectively found to be "material" to the decision was apparently overlooked, forgotten or ignored by the Tribunal, the Federal Court would not intervene under s481 of the Act.
[156] Given the seriousness of the decisions at stake for the persons concerned, for the Australian community and for this country's compliance with international law, it is not a surprising construction of the Act to hold that the Federal Court, where it comes to a conclusion of default, should have discretionary powers (as I would hold it does) including the power to quash the flawed decision and to require that the review be conducted, and concluded, properly.
[157] Assuring lawful decision-making : This conclusion is still further reinforced by a reflection on what the outcome of judicial review requires. This is not the substitution by the Federal Court of its own decision on the merits. It is no more than the requirement that the Tribunal re-determine the review and (subject to any directions of the Federal Court given under s481 of the Act) provide in the re-determination a "written statement" that complies with the Act. In this way, an important principle of federal administrative law is upheld. Appropriate standards of transparent decision-making are required of the Tribunal. Vulnerable persons who claim to be refugees are entitled to have a decision of great personal importance made as the law of this country obliges. Australia's compliance with its international obligations is assured. The presence of non-citizens in Australia is regulated as the Act of Parliament has decreed. And in many cases, the Minister retains a residual power, exercised personally, to have the final say [142] . Whilst it is true that some time is lost and cost incurred, this is a necessary price of a process of decision-making regulated, as ours is, by law. Cases such as this not only dispose of the rights of particular parties. They lay down the standard for thousands of others which may never get to the Tribunal or a court.
[158] It follows that I would reject the construction of s430 and s476(1)(a) of the Act urged by the Minister. I would uphold the meaning of those sections favoured by the majority of the Full Court in Singh [143] . As that was, generally speaking, the approach adopted by the Full Court in both Ms Yusuf's and Mr Israelian's appeals, subject to what follows, the Minister's appeals must fail.
The appeal in Yusuf fails
[159] Having reached the foregoing conclusion, the outcome in Ms Yusuf's case is relatively straight-forward. It did not long detain Finn J at first instance in the Federal Court. In his ex tempore reasons for judgment [144] , after cutting through many irrelevant and unsuccessful arguments, his Honour came to the contention that the statement of reasons prepared by the Tribunal, pursuant to s430 of the Act, was defective and that the procedures required by the Act had not been observed within s476(1)(a).
[160] In Finn J's view an attack on Ms Yusuf's husband constituted one of the three central evidentiary facts upon which she had relied to establish the validity of her claim to refugee status. It had not been dealt with in the Tribunal's reasons [145] . This was so although Ms Yusuf "appears to have included herself in the objects of that attack" and although, obviously enough, the loss of her husband, the father of her children and the person to whom she could ordinarily look for defence against clan-based persecution, was objectively a "material fact" for the success or otherwise of her claim. Finn J pointed out that the attack was the first matter referred to in Ms Yusuf's initial statement. It had occurred at a time proximate to an attack on herself. Its consequence had been the breakup of her family unit.
[161] In these circumstances, with admirable clarity, Finn J concluded [146] :
"It can properly be said, in my view, to be a matter that was central to the events relied upon by the applicant as grounding her fear of persecution.
In the circumstances, it was in my view incumbent upon the Tribunal to consider the matter and in its reasons to indicate whether or not it accepted or rejected that event in its setting as being capable of giving rise to a well-founded fear of persecution. ...
[B]earing in mind the apparent centrality of the attack upon the house to the events relied upon as founding the well-founded fear of persecution, it seems to me inevitable that I must conclude that the statement of reasons of the Tribunal is deficient in its failure to address this matter".
[162] The Full Court in Ms Yusuf's case, whilst correctly accepting that it was not necessary that the reasons of the Tribunal should deal with all matters raised in the proceedings [147] , and that it was enough that the Tribunal's findings and reasons should deal with the substantial issues on which the case turned, unanimously affirmed the approach of Finn J [148] :
"When assessing the relative centrality of issues raised - and hence their materiality - a specific instance of alleged maltreatment 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 [Tribunal] attaches to the asylum-seeker's account of such incidents."
[163] These are unsurprising conclusions. They were open to the Federal Court. No error has been shown warranting appellate disturbance, once the construction of the Act propounded by the Minister is rejected.
[164] Both before the Full Court and in this Court, the Minister finally argued grounds addressed to the relief which Finn J afforded to Ms Yusuf under s481 of the Act. Specifically, he contended that a failure of the Tribunal to comply with obligations under s430(1) of the Act was remediable "only by way of a mandatory order for the giving of a further and better statement of reasons". It did not, of itself, "render the decision of the Tribunal invalid or liable to be set aside".
[165] In so far as some other remedy might have been available to the Federal Court, the provision of the remedy granted at first instance and confirmed on appeal was within the discretion of that Court. No basis has been shown to warrant the intervention of this Court upon such a discretionary question. The appeal having been principally argued on the footing of the Minister's construction of s430 and s476(1)(a) of the Act, and that construction being, in my view, erroneous, the appeal in Ms Yusuf's case fails.
[166] It follows that the Tribunal must reconsider Ms Yusuf's case, address its attention as well to the first of the three main bases upon which Ms Yusuf argued her claim and, in its "written statement", include any finding on that material fact, one way or the other. That it was "material", objectively, can scarcely be denied. Unless the fact were specifically referred to, Ms Yusuf and all others who read of her case would be entitled to conclude that the Tribunal, when it came to its reasoning and conclusions, overlooked, forgot, or ignored that fact, rather than that it considered the fact and rejected it as false or unproved. It may be that to conclude in that way would be unfair to the Tribunal's subjective reasoning. Perhaps the Tribunal did indeed give weight to, but rejected, these facts, objectively "material" to Ms Yusuf's case. But if it did so, the unfairness is of the Tribunal's own making. It failed in the "written statement" for which the Act provides to include a finding on facts so obviously "material" .
[167] I would endorse the concluding words of the reasons of Finn J [149] :
"[I]t is important if public confidence is to be maintained in the tribunal system, no less than in the system of the courts, that when a case is put to a tribunal or for that matter to a court, an unsuccessful party is entitled to an explanation as to why their case was not accepted".
[168] By s430, the Parliament has imposed the relevant obligation on the Tribunal. All that the Federal Court has done is to require that that obligation be complied with. It has expressly declined to become involved in the merits of the case. It has recognised that the evaluation of those merits is for the Tribunal alone. However, that evaluation must conform to the "procedures" that are required by the Act. That did not occur here. The Full Federal Court correctly found there was no appealable error in the decision of Finn J. The appeal to this Court should therefore be dismissed.
The appeal in Israelian fails
[169] In Israelian, the position is a little more complicated. I agree with Callinan J that neither by the Act, nor by any provision of international law applicable in Australia, does the United Nations High Commissioner for Refugees [150] have authority to require that courts or tribunals of Australia treat a particular individual, or class of individuals, as a "refugee" or "refugees" for the purposes of the Refugees Convention.
[170] For my own part, I would not put much store on the newspaper report that such an "order" was made [151] . Nor do I read the decision of the primary judge (R D Nicholson J) as reaching a different view. At most, in his Honour's reasons, this was an evidentiary element in Mr Israelian's case which the Tribunal had failed to address. The evidence concerned Mr Israelian's claim that he was a member of a particular social group in Armenia, namely draft evaders who objected on moral grounds to the military actions being conducted by Armenia in the disputed territory of Nagorno-Karabakh [152] .
[171] Before the Tribunal and R D Nicholson J was the Handbook on Procedures and Criteria for Determining Refugee Status of the High Commissioner for Refugees [153] . The Handbook has been endorsed by this Court as a useful "practical guide" in considering a claim such as that of membership of a particular social group [154] . It accepts that "punishment for desertion or draft-evasion could ... in itself be regarded as persecution" where "the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct" [155] . R D Nicholson J did not propose that a so-called "order" of the High Commissioner should be considered as binding on the Tribunal or the Federal Court. Instead, his Honour described the record of the High Commissioner's purported statement (which was before the Tribunal and the Court) as something which, "[i]f ... factually correct ... may amount to the requisite condemnation by the International Community of the military action in [Nagorno-Karabakh] as being contrary to basic rules of human conduct" [156] .
[172] Beyond this, a fair reading of the reasons of R D Nicholson J makes it clear that the relevant consideration that he regarded as authorising him to intervene in Mr Israelian's case was the failure of the Tribunal to observe the procedures required by the Act. That failure arose from the omission of the Tribunal to address itself to the questions of fact raised by Mr Israelian's claim that he was a member of the "particular social group", membership of which gave rise to the "well-founded fear of persecution" required by the applicable definition of "refugee".
[173] The Tribunal said nothing about Mr Israelian's "particular social group". It confined itself to consideration of his status as a conscientious objector. But the social group which he had propounded, as part of his claim, was much more limited and particular [157] :
"The argument would be that the particular social group was defined by the acts of desertion or draft evasion and that such characteristic unites them. The fact requires to be found whether such acts define a group."
In his Honour's view, "[t]he Tribunal failed to form a view about the crucial issues which the definition required it to examine" [158] .
[174] R D Nicholson J ordered that the application for review be allowed in Mr Israelian's case, "to the extent the Tribunal is required to make findings on the issue of whether the applicant had a well founded fear of being persecuted for the reason of membership of a particular social group" [159] . The formal orders made at first instance set aside the decision of the Tribunal and referred the matter back to the Tribunal to determine the question identified as having been omitted from its findings.
[175] In the Full Court a difference of opinion emerged in the appeal from those orders. Emmett J, dissenting, considered that the Tribunal had committed no error that would warrant the intervention of the Federal Court. Reflecting the approach of the Tribunal, Emmett J saw no omission on the part of the Tribunal to make and record any material finding of fact [160] :
"There is ... no material before the Court to indicate what might possibly have been ascertained by such [a further] inquiry [by the Tribunal]. On the material before the Tribunal, there is no basis for concluding that deserters and draft evaders constitute a particular social group. They are simply a particular group of law breakers, members of whom are punished, in the same way as all other citizens, for failing to comply with the requirements of the law of Armenia."
[176] It is here, with respect, that I part company with Emmett J. I accept the approach of the primary judge and of the majority in the Full Court [161] . That approach is, I believe, the one required by the Act for the ascertainment of the rights of an applicant to be treated as a "refugee", both under the Convention and under Australian law.
[177] The law in many countries is sadly far from just and humane. Even in Australia the law has, from time to time, involved persecution of particular social groups. The mere fact that a person, as a law-breaker, is liable to be punished "in the same way as all other citizens" does not adequately respond to a complaint of persecution in the Convention sense such as that made by Mr Israelian. Jews in Germany during the Third Reich would have had a well-founded fear of persecution, although, like all other nationals of that country at that time, they were subject to the law of Germany. "Non-white" citizens of South Africa, before its present Constitution, were also subject to persecution, although South Africa at that time was undoubtedly a state of laws, whose legislation was, at least in form, equally applicable to all citizens.
[178] With respect, the mistake of Emmett J is the mistake which the Tribunal also appears to have made in determining, and making findings of material facts about, the issue of persecution in Mr Israelian's case. As the primary judge pointed out, by reference to the Handbook, the lawfulness of conduct and universal application of the law to all citizens in the matter of draft evasion, are not necessarily the end of the inquiry in refugee claims of Mr Israelian's kind [162] .
[179] The involvement of countries in particular wars is occasionally viewed by some of their citizens as a gross affront to basic human rights. Contemporary instances have arisen (even in Australia [163] ) where this would be, or has been, so. When this happens, persons liable to conscription for military service sometimes seek refuge in other countries to avoid a serious affront to their conscience. Their susceptibility to prosecution and punishment will often reinforce their sense of identity as a group, although that identity pre-exists such reinforcement, being founded on shared values concerning the war in question.
[180] Before the Tribunal, Mr Israelian relied upon an assertion that he was entitled to protection as a refugee because he was a member of a particular social group, namely deserters and/or draft evaders. The Full Court majority, like the primary judge, decided that "the Tribunal did not deal with this argument at all" [164] :
"In order to do so it was necessary to examine whether deserters and/or draft evaders were a particular social group and, if so, whether they were persecuted by reason of their membership of that group. This exercise was not done. Even if the decision can be read as stating an express conclusion that Mr Israelian was not persecuted by reason of his membership of a group comprising deserters and/or draft evaders, there is no reasoning process or factual analysis exposed which supports the conclusion. Consequently, the Tribunal failed to comply with s430(1)(b), s430(1)(c) and s430(1)(d). ... [This failure] was a failure to observe procedures required by the Act and hence gave rise to a right of review under s476(1)(a) of the Act."
[181] Although I would accept that Mr Israelian's case is at the borderline, and although the Federal Court might have concluded that the reasoning of the Tribunal, whilst defective, did not justify its intervention, no error is shown, such intervention having been decided, to warrant the disturbance by this Court of the orders which the primary judge made, and which the Full Court confirmed.
[182] Once the construction of the Act urged by the Minister is rejected, the judgment of whether the "written statement" of the Tribunal meets the standard required by s430, or warrants an order of review under s476(1)(a) of the Act, involves the kind of evaluative decision that this Court should ordinarily leave to the Federal Court. Similarly, the form of the relief provided in the discretion of the Federal Court should not, without error in the premise, result in reversal by this Court, simply because it would have refused or granted other relief.
[183] I am therefore unconvinced that error is shown in Mr Israelian's case. In so far as the basis of that suggested error was the approach which the Tribunal, Emmett J (in dissent) and now members of this Court have favoured, I respectfully disagree. Universally applicable laws, including those requiring military service, can sometimes be unjust as they fall on particular groups. The Quakers represent a long-established and respectable illustration of conscientious objection; but there are others. They have not always been afforded legal exemption [165] . The Tribunal should at least have addressed this issue in order to comply with the obligations imposed by s430. Its omission to do so authorised the conclusion and orders which the Federal Court reached. In Mr Israelian's case, this Court should not disturb those orders. The appeal should be dismissed.
The constitutional writs are unnecessary
[184] The applications for the issue of constitutional writs (and associated relief) were mounted defensively by Ms Yusuf and Mr Israelian, in case the appeals were determined adversely to them. The provision of such relief is within the discretion of this Court [166] . An obvious discretionary basis for withholding relief is that, in the appeals, the orders which I favour would uphold the requirement that the Tribunal complete the review of the adverse decision of the Minister's delegate affecting, respectively, Ms Yusuf and Mr Israelian. It was not suggested that any relief, larger or different in character, would be available to either of them as would warrant exploring, additionally, their arguments about the constitutional writs. It follows that I do not need to respond to the many questions that were raised by Ms Yusuf and Mr Israelian in support of their applications for constitutional writs.
Orders
[185] The Minister's appeal from the judgment of the Full Court of the Federal Court of Australia concerning Ms Yusuf should be dismissed with costs. The Minister's appeal from the judgment of the same Court concerning Mr Israelian should also be dismissed with costs. The applications brought in the original jurisdiction of this Court by Ms Yusuf and Mr Israelian should be dismissed [167] .