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: Callinan J)

Minister for Immigration and Multicultural Affairs
vYusuf

Court:

Judges: Gleeson CJ
Gaudron J
McHugh J
Gummow J
Kirby J
Hayne J

Callinan J

Legislative References:
-

Case References:
-

Hearing date:
Judgment date: 31 May 2001

---

Decision by:
Callinan J

YUSUF

[186] The principal questions which arise in the first of these cases are whether there was a failure on the part of the Refugee Review Tribunal ("the Tribunal") to make a finding of a material fact, and if there was, whether the decision of the Tribunal was reviewable under the Migration Act 1958 (Cth) ("the Act") or by way of prerogative writs issued pursuant to s75 of the Constitution. Similar questions arise in Minister for Immigration and Multicultural Affairs v Israelian, which was argued at the same time as Yusuf.

Case history

[187] The appellant appeals against a decision of the Full Court of the Federal Court of Australia, affirming a decision by a judge of that Court, that the respondent's application for a protection visa be remitted to the Tribunal for reconsideration. The respondent is also an applicant for prerogative relief under s75 of the Constitution.

[188] The respondent, who was born in Somalia, illegally entered Australia with her two children in February 1999. Before coming to this country, the respondent, who is a member of the Abaskul clan, lived in Mogadishu. She applied for a protection visa in respect of herself and her two children. The appellant's delegate refused that application. The respondent then applied under s141 of the Act to the Tribunal for a review of the decision to refuse the application.

[189] In affirming the decision of the delegate the Tribunal accepted as an account of conditions in Somalia a description provided by the Department of Foreign Affairs and Trade ("DFAT") in March 1999:

"The Abaskul are a sub clan of the Darod. The region they are most commonly associated with is the 5th region of Ethiopia (south eastern Ethiopia) although members of the clan also live in other areas of Somalia including in the area which borders Ethiopia. Mogadishu has attracted settlers from all regions of Somalia. It can be expected that some members of the Abaskul clan would live there and this would not be unusual.

An Abaskul, as a member of minority clan in Mogadishu, is at a disadvantage when it comes to securing a job or access to housing for example and would be at a disadvantage in the event of a dispute with a member of a more powerful clan such as the Hawiye. This is a situation in which all minority clan members find themselves so it is not peculiar to the Abaskul. The Abaskul are not the target of the Hawiye, or any other clan, because of their clan affiliation.

The Abaskul are traditionally nomadic herdspeople who tend flocks of camels and goats although nowadays some have moved to other occupations.

Comment

It is unlikely that the applicant would have experienced attacks from members of the Hawiye clan for the reason that the applicant is a member of the Abaskul clan. There is a complex relationship between different clans and to confuse the matter further intermarriage between clans is not unusual. In a given region, a particular clan may be higher up the social pecking order than another. This does not mean that higher ranked clan members will physically attack a member of a lower ranked clan simply because of the person's clan affiliation. To illustrate the peculiarities of Somali life the most intense fighting in Mogadishu at the moment occurs between two warlords who both belong to the same branch of the Hawiye clan.

It is worth noting that there are other areas of Somalia where the Abaskul are more prominent."

[190] In order to qualify for a protection visa the respondent has to demonstrate that she is a person who ^[168] :

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

[191] The respondent gave a written statement to the Tribunal, which in part read as follows:

"About a year and a half ago members from the Hawiye clan invaded our house and attacked my husband. My husband was able to run away with the help of a neighbor. My husband had to run away and to date I don't know if he is alive or where he is.

On one occasion I went to purchase food for my children. People from the Hawiye clan attacked me. They put a sword on my chest, near my neck and they cut me. I still have the scar. I was lucky that my neighbors saw this attack and they came and saved me from these people. I was lucky that the neighbors who were Hawiye saved me otherwise I would have probably been killed.

On another occasion a group of women from the Hawiye attacked me as I was shopping near our house. I received cuts to my head and face and I still feel the pain from the injuries. My neighbors who saw the incident once again came to my rescue as they heard me shouting and crying. They told me to go back home and I was not to leave my house again as I could get killed.

...

If I am returned to Somalia I would probably be killed, as there is no one in Somalia who can protect me. My clan is a small defenseless clan and as a result there is no where [sic] in Somalia where we can settle. In Somalia there is no government and there are no authorities that could protect me. If I am returned there my children and I will probably be killed. It is because of the fact that we have no one to protect us and because of the persecution we face in Somalia as members of the Abaskul clan that I am seeking protection from the Australian government."

[192] It can be seen that the respondent did refer in her statement to three incidents, one being an attack upon her husband during a house invasion, an attack upon her during which a wound was inflicted, and an attack by a group of women which also resulted in injury to her.

[193] The matter upon which the respondent relied in proceedings in the Federal Court and in this Court, is the absence, in the Tribunal's reasons, of any finding as to the occurrence or otherwise of the attack upon her husband.

[194] In the Tribunal's reasons under the heading "background and claims", the Tribunal said this:

"She said that she rarely ventured outside after the commencement of the civil war, but that on two particular occasions when she did so, she was soon after attacked by members of the Hawiye clan. She claims that the attacks on her occurred because the Hawiye clan was antagonistic to her own clan. She said that the first attack occurred a long time ago and that the second attack occurred about 20 months ago. She claims that she received several wounds in the attacks upon her as her assailants had swords and knives. She said that on each occasion she was assisted by neighbours who, like her attackers, were also of the Hawiye clan. She said that her husband ran away with the help of a neighbour and she does not know where he is now. She said that she would be alone and vulnerable if she were returned to Mogadishu. She claims that her Hawiye neighbours suggested that she leave Somalia as they would be unable to protect her in the future."

[195] The key reasons for the Tribunal's decision are to be found in this passage:

"In view of the aforementioned information, and bearing in mind that on the two isolated occasions the applicant encountered problems, she was assisted by persons from the same clan as her attackers, the Tribunal concludes that the attacks against her were motivated by reasons other than race. The Tribunal notes that the applicant has been generally free from any harm in Mogadishu notwithstanding the continuation of the civil war. It notes, in particular, advice from DFAT that members of the Abaskul clan are not targeted by members of the Hawiye clan. That information from DFAT and the fact that the applicant was rescued from further harm by Hawiye neighbours when she twice came under attack, leads to a conclusion that it was not the applicant's clan membership that motivated the attacks upon her."

[196] The respondent sought a review by the Federal Court of the Tribunal's decision under s476 of the Act which provides as follows:

" Application for review

(1)

Subject to subs(2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following 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;

(b)

that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)

that the decision was not authorised by this Act or the regulations;

(d)

that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)

that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)

that the decision was induced or affected by fraud or by actual bias;

(g)

that there was no evidence or other material to justify the making of the decision.

(2)

The following are not grounds upon which an application may be made under subs(1):

(a)

that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)

that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3)

The reference in para(1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)

an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)

an exercise of a personal discretionary power at the direction or behest of another person; and

(c)

an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)

taking an irrelevant consideration into account in the exercise of a power; or

(e)

failing to take a relevant consideration into account in the exercise of a power; or

(f)

an exercise of a discretionary power in bad faith; or

(g)

any other exercise of the power in such a way that represents an abuse of the power that is not covered by para(a) to para(c).

(4)

The ground specified in para(1)(g) is not to be taken to have been made out unless:

(a)

the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)

the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

[197] The application for review in the Federal Court was heard by Finn J who gave ex tempore reasons for allowing the respondent's application and ordering that the matter be remitted to the Tribunal for further consideration according to law. The ground upon which the respondent succeeded was added during the hearing, and was, that the Tribunal, in failing to make a finding about the occurrence of an attack both on the husband and her (upon which she had enlarged to include herself as a victim of it in oral evidence to the Tribunal) had failed to make a finding on a material question of fact as required by s430(1) of the Act which provides as follows:

"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."

[198] With respect to the Tribunal's reasons, Finn J said this:

"It is in my view important to appreciate the significance of this matter. It is the first of the matters relied upon in her initial statement. It relates to the break-up of her own family unit and to the departure of the person under whose protection she would ordinarily be and it occurs at a time relatively close to one of the other two occasions on which a personal attack has been made upon her. 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."

[199] It was his Honour's opinion that in not making a finding about the occurrence of the assault upon the respondent's husband and the respondent, the Tribunal had failed to observe the procedures required by s430(1)(c) of the Act, being procedures in connexion with the making of the decision within the meaning of s476(1)(a).

[200] His Honour summarised his conclusion in this paragraph:

"[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."

[201] An appeal ^[169] by the appellant to the Full Court of the Federal Court (Heerey, Merkel and Goldberg JJ) was unanimously dismissed. In doing so the Full Court rejected the appellant's arguments, which were repeated in this Court, that failure to comply with s430(1) did not constitute a failure to observe procedures required by the Act within the meaning of s476(1)(a); or, alternatively, that the primary judge erred in holding that in the present case there was a failure to set out the findings on any material questions of fact.

[202] Their Honours regarded themselves as bound to reach the conclusion that they did. They said ^[170] :

"A uniform line of Full Court authority is conclusive against the Minister's argument: Muralidharan v Minister for Immigration and Ethnic Affairs ^[171] ; Paramananthan v Minister for Immigration and Multicultural Affairs ^[172] ; Logenthiran v Minister for Immigration and Multicultural Affairs ^[173] ; Hughes v Minister for Immigration and Multicultural Affairs ^[174] ; Perampalam v Minister for Immigration and Multicultural Affairs ^[175] ; Sellamuthu v Minister for Immigration and Multicultural Affairs ^[176] ; V v Minister for Immigration and Multicultural Affairs ^[177] ; Thevendram v Minister for Immigration and Multicultural Affairs ^[178] ; Borsa v Minister for Immigration and Multicultural Affairs ^[179] ; Addo v Minister for Immigration and Multicultural Affairs ^[180] . Counsel for the Minister did not argue that these authorities were distinguishable."

The appeal to this Court

[203] Despite what their Honours in the Full Court said in this case, opinion in the Federal Court with respect to the meaning and application of s430 and s476 has not been unanimous. In Xu v Minister for Immigration and Multicultural Affairs ^[181] , Whitlam and Gyles JJ expressed a contrary view to that of the Full Court here. They held that a failure to comply with s430 of the Act did not give rise to a ground of review under s476(1)(a). Their Honours held that the decisions of the Federal Court (including decisions of the Full Court) which have proceeded upon a different basis were wrong and should not be followed ^[182] . They referred to the judgment of the Full Court in this case and declined to follow it. The other member of the Court in Xu, R D Nicholson J, decided the case on a basis that did not require him to reach any conclusion on the matter in contention here.

[204] On 30 June 2000, a Full Court of the Federal Court constituted by five judges gave judgment in Minister for Immigration and Multicultural Affairs v Singh ^[183] . The Court (Black CJ, Sundberg, Katz and Hely JJ, Kiefel J dissenting) decided that a breach of s430(1) was a failure to observe a procedure required to be observed in connexion with the making of the decision within the meaning of s476(1)(a) although no breach of s430(1) had occurred in that case. Kiefel J delivered a strong dissenting opinion preferring the majority opinion in Xu. With respect to those decisions of the Federal Court that were relied upon by the Full Court her Honour said ^[184] :

"By that process the Court became involved in identifying what was relevant or material to the questions posed for the Tribunal in a given case. Although it was explained, from time to time, that the Court was saying no more than that the reasons were deficient because of the omission, the inescapable conclusion was that they were holding the Tribunal to have been obliged to take a matter into account in its reasoning process, as the majority in Xu points out."

[205] In my opinion the reasoning and conclusions of Whitlam and Gyles JJ in Xu and Kiefel J in Singh are correct. But before going to the former of these, I would refer to some other matters.

[206] S430 and s476 of the Act need to be placed in context. The first decision in this case was made under s66 of the Act. S65 sets out the criteria for a decision by the Minister with respect to the grant of a visa. S66 sets out the obligations owed by the Minister to an applicant in notifying the applicant of a decision to grant or to refuse a visa application. Subs(2) of the latter section makes detailed provision for what must be communicated to an applicant if his or her application is refused:

"Notification of a decision to refuse an application for a visa must:

(a)

if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and

(b)

if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

(c)

unless subs(3) applies to the application - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

(d)

if the applicant has a right to have the decision reviewed under Pt5 or Pt7 or s500 - state:

(i)

that the decision can be reviewed; and

(ii)

the time in which the application for review may be made; and

(iii)

who can apply for the review; and

(iv)

where the application for review can be made."

[207] In reviewing a decision made under s65 the Tribunal may, pursuant to s415(1), exercise all of the powers and discretions conferred upon the original decision-maker.

[208] Division 4 of Pt7 of the Act is concerned with the conduct of the review and refers, among other things, to a review "on the papers" ^[185] , the calling of witnesses ^[186] and the reception of evidence ^[187] ; in other words, to the manner of conduct of proceedings in the Tribunal, that is to say, its procedures.

[209] I turn now to a consideration of the necessary content of a decision of the Tribunal. In conventional legal proceedings a primary judge is obliged to state his or her findings and reasons for judgment in order that there may be a proper understanding of the basis upon which the decision depends ^[188] . Not only are the parties to litigation entitled to that in order to satisfy themselves that there has been a conscientious consideration of their case, but also, they should have it so that an appeal court can satisfy itself as to the correctness or otherwise of the decision at first instance. In Pettitt v Dunkley ^[189] , Asprey JA said that a failure to state the relevant findings and reasons constitutes an error of law.

[210] Pettitt was most recently considered by this Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) in Fleming v The Queen ^[190] :

"It was held in Pettitt v Dunkley that the failure of the trial judge, sitting without a jury, to give reasons for his decision made it impossible for the Court of Appeal to determine whether or not the verdict was based on an error of law, and this had the consequence that the failure to give reasons itself constituted an error of law ^[191] . In Public Service Board of NSW v Osmond ^[192] , Gibbs CJ said that the decision in Pettitt v Dunkley 'that the failure to give reasons was an error in law may have broken new ground'. Even if that be so, and we should not be taken as acceding to the view that new ground was broken in Pettitt v Dunkley, the reasoning of the Court of Appeal ... should be accepted."

It seems to me, with respect, that the opinion of the Court of Appeal of New South Wales in Pettitt as to the characterization of the omission (of relevant reasons) as an error of law is a correct one. The passage from Fleming that I have quoted is not to any different effect. Indeed, it is an approval, whether it was a new proposition or not as suggested by Gibbs CJ.

[211] Let me assume at this point, however, that the reasoning of the Tribunal is defective because of an omission of a finding as to a fact claimed to be material, the asserted attack upon the respondent and her husband. Let me also assume that the omission made it difficult, or indeed even impossible for a reviewing court to satisfy itself that the Tribunal had considered that matter. If those assumptions be correct, the Tribunal's decision may arguably have involved an error of law of the kind to which Asprey JA referred. But as the Act makes clear, not all errors of law are reviewable by the Federal Court under s476. I leave aside for present purposes s476(1)(a). S476(1)(b) makes reference to an unauthorised exercise of jurisdiction, s476(1)(c) to a decision not authorised under the Act, s476(1)(d) to an improper exercise of power, s476(1)(f) to a fraudulent or biased decision, and s476(1)(g) to an absence of evidence or other material to justify the making of the decision. Any assumed error of law in this case is not one of these. S476(1)(e) is expressly concerned with errors of law but of legal interpretation, or application of the law only, neither of which is present here.

[212] I return to s476(1)(a). In ordinary language, the making of a factual finding would not readily answer a description of complying with a procedural requirement. Finding a fact is part of the process of reaching a decision. It is more than, and different from, complying with a procedural requirement. That is how s476(1)(a) in my opinion should be read. So read, it may be capable of operating with respect to, for example, the procedural requirements required by s66 and Div 4 of Pt7 of the Act but not to the exposure of the reasoning process by which a conclusion is reached.

[213] The "error of law" which I have, for present purposes assumed, is not an error of law of the kind which s476(1)(e) or any other paragraph of the sub-section identifies. Nor is it a failure to comply with a procedural requirement of the kind contemplated by s476(1)(a). These matters, taken with the exclusion, as a ground of review by s476(3)(e) of a failure to take into account a relevant consideration, and the distinction which will ordinarily, and does exist here, between an error of law and the non-observance of a procedural requirement, provide a firm basis for holding that a failure to find a material fact does not give rise to a ground of review under the Act. And there is no reason to read down the words "a relevant consideration". Those words are, on their face, wide enough to include a material fact.

[214] Take a different situation, one in which a tribunal has failed to make material findings to the extent that a review, even of the restricted kind for which s476(1) makes provision, is simply not possible. Such a "decision" may not be able to be regarded as a decision in any real and practical sense. A court would be entitled to take the view that the decision-maker has in truth refused to make a decision. There will be, in such a case, a remedy, and that is the one for which s481(2)(a) makes provision:

"(2) On an application for a review in respect of a failure to make a judicially-reviewable decision , or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court may make any or all of the following orders:

(a)

an order directing the making of the decision". (emphasis added)

[215] "Material" may mean something different from "necessary" or "essential". Whether "material" does have a different meaning depends in part upon its context. A particular fact may assist, together with other facts, a decision-maker to reach a decision. The decision might still, in the circumstances have been reached absent one or more material facts which the decision-maker has relied on for the decision, or referred to in the reasons for it. But as to whether or not certain facts are material, the extent to which they are or are not material will depend upon how much weight the decision-maker thinks should be placed upon them. Weight will frequently be inextricably tied up with materiality. Different factual matters will often have a different significance for different people. I would not regard the matter that Finn J and the Full Court thought material for the purposes of s430 of the Act to be so. Nor would I have thought it to be material in the sense that it was a necessary or substantial matter of fact without which the conclusion of the Tribunal could not have been reached.

[216] In Xu, Whitlam and Gyles JJ said this ^[193] :

"As is apparent from the reasons of R D Nicholson J, the contrast between (c) and (d) is fundamental to a proper understanding of s430. 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 Commissioner of Taxation (Cth) ^[194] ; Bowen CJ and Fox J in Sean Investments v MacKellar ^[195] .) See also the use of the phrase 'ultimate facts' by Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis ^[196] . The same contrast is reflected in the rules of pleading, for example, O11 r2(a) of the Federal Court Rules 1979 (Cth) 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 ^[197] and Wiest v Director of Public Prosecutions ^[198] . The judgment of the Court in Zoeller v Federal Republic of Germany ^[199] is to the same effect.

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 s430 relates to administrative decisions made on the merits pursuant to a statute. Materiality in s430 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.

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.

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 s430(1).

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).

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 s430."

[217] I agree with their Honours' analysis and conclusion, a conclusion which is, in my opinion strengthened by the statutory indications pointing in that direction and to which I have earlier referred. Finn J and the Full Court thought the assault upon the husband was a material fact. The earlier decision-maker, the Tribunal, did not. That may be taken to be so because the Tribunal did not regard it as necessary to make a finding on it. It could hardly have been overlooked because the Tribunal had earlier made an express reference to it. The Tribunal was entitled neither to regard it, nor treat it as material to its decision. That was a position that was open to the Tribunal, and, even if a review were available on such a ground, the Federal Court as the reviewing court would not have been justified in merely substituting its own opinion as to its materiality for that of the Tribunal. The important matters for the Tribunal were that the respondent's attacks were made by members of the same clan as those who assisted her afterwards, and that the respondent's Abaskul clan was not targeted in the attacks by members of the Hawiye clan: therefore the attacks were not racially motivated. Hence the fact of the attack upon the husband was not a material fact, a conclusion with which I would agree.

[218] I should make it clear, however, that the conclusion that I have reached depends in part at least upon the statutory context in which s430 is found, and certainly does not foreclose debate about s25D of the Acts Interpretation Act 1901 (Cth) and similar provisions in other statutes.

[219] I would mention one other matter. In Minister for Immigration and Multicultural Affairs v Ibrahim ^[200] , this Court warned against the distractions (from the task of applying the Convention) of applying, to conditions which were accepted in that case as existing in Somalia then, the description of civil war. Similar sorts of conditions were described in this case, similarly loosely, as civil war. Whether in these circumstances conditions of a civil war exist, or whether persons caught up in those circumstances are capable on that account of being regarded as being persecuted on grounds of race may be questionable. However, it is unnecessary to say any more about these matters because I am satisfied there was no failure, for the reasons I have stated, and applying also the tests proposed by Whitlam and Gyles JJ in Xu, and Kiefel J in Singh, which I would adopt, to find a material fact.

[220] I would therefore allow the appeal by the Minister.

[221] The reasons I have given also mean that the application for prerogative relief should be refused. There is no basis upon which that relief could be granted. The Tribunal made no errors of law whether on the face of the record or otherwise, it did not fail in any way to accord natural justice to the respondent, and there was no failure to exercise the jurisdiction conferred upon it. It may be that a failure to give reasons sufficient to allow a court to decide whether the decision is judicially reviewable, or the giving of manifestly deficient reasons in other respects might provide a ground for prerogative relief just as it might ground relief under s481(2) of the Act but it is unnecessary to state any concluded opinion on this.

Orders

[222] I would allow the Minister's appeal and dismiss the respondent's application for prerogative relief.

[223] Consistent with the conditions upon which special leave to appeal to this Court was granted, I would not disturb any orders as to costs which have been made in the courts below and I would order that the Minister pays the respondent's costs of the appeal.

ISRAELIAN

[224] This case raises the same questions as arise in Yusuf as to the meaning and application of s430 and s476 of the Migration Act 1958 (Cth) ("the Act").

Case history

[225] Mr Israelian came to Australia from Armenia on 8 September 1992. He made application for a protection visa to the Department of Immigration and Multicultural Affairs on 29 October 1993. The application was refused on 6 May 1994. The decision to refuse him the visa sought was affirmed by the Refugee Review Tribunal ("the Tribunal") on 23 March 1995.

[226] The respondent told the Tribunal that he had been called up for military service in January 1993 while he was out of the country. He said that, because of his absence from his country at the time of his call-up, he would be treated on his return as a deserter and forced to serve in the military at the front line. Another reason why that would be his fate, was that he was an active supporter of the Communist party in Armenia. He said the position would be different if he had formally migrated from Armenia, instead of failing to return to his country of birth.

[227] Armenia has been in conflict with Azerbaijan over the area of Nagorno-Karabakh. The respondent is not opposed to all wars but has a particular objection to that conflict. It was, he said, a futile war. There is no resolution in sight to it unless the ethnic Armenians withdraw from Nagorno-Karabakh and relocate to Armenia. The respondent is unwilling to fight former comrades who had served with him in what was formerly the Soviet Army, in which he has already served. As a conscript he would, he said, be sent to the front and he certainly does not want to be killed in a pointless war. He claimed that the war has been condemned by the international community. And he is opposed to a war that resorts to ethnic cleansing, which he alleges this one to be.

[228] The Tribunal concluded that the respondent's claims that there was a real chance that he would be persecuted upon his return to Armenia, for a reason relevant to the Convention relating to the Status of Refugees of 28 July 1951 ("the Convention"), could not be sustained.

[229] The respondent sought review of the Tribunal's decision by the Federal Court of Australia. His application was heard by R D Nicholson J. His Honour said that it was arguable that deserters or draft evaders might be regarded as a particular social group. He was of the opinion that a factual finding whether that was so or not, should have been made by the Tribunal. Membership of that group, if it were a social group within the meaning of the Convention, might give rise to a well-founded fear of persecution. It followed, his Honour held, that there had been a failure to make a finding as to a material fact as required by s430 of the Act.

[230] According to his Honour that was not, however, the only material fact in respect of which a finding should have been made. His Honour said that there was evidence before the Tribunal of a German press report that the United Nations High Commissioner for Refugees had issued an order to the effect that Armenian draft resisters should be given refugee status. If, his Honour said, that be factually correct, it might amount to a condemnation by the international community of the military actions in Nagorno-Karabakh as being contrary to basic rules of human conduct, and hence in this particular case the punishment for desertion or draft evasion could amount to persecution of the respondent as a member of a particular social group. In the result his Honour allowed the application for review, and ordered that the Tribunal's decisions be set aside and that the matter be remitted to the Tribunal to determine whether the respondent had a well-founded fear of being persecuted by reason of membership of a particular social group.

[231] The appellant appealed to the Full Court of the Federal Court ^[201] (Einfeld and North JJ, Emmett J dissenting). In that Court, the majority took the view that the Tribunal dealt only with the respondent's fear of persecution by reason of his membership of a social group consisting of conscientious objectors and failed to consider whether he feared persecution by reason of his membership of a social group comprising deserters and draft evaders or either of them. The Full Court said that references to the respondent's claims generally, the holding by the Tribunal that these were not Convention related, and that any punishment would not be motivated by Convention reasons were formulaic only, and did not grapple with the respondent's arguments on the basis of them. As in Yusuf the Full Court held that there had been a failure to comply with s430(1)(c) of the Act. Their Honours in the majority also held that here there had been a failure to comply with s430(1)(b) and s430(1)(d) which require the Tribunal, respectively, to set out its reasons for a decision, and to refer to the evidence, or any other material on which the findings of fact are based. As in the case of Yusuf, the Full Court held that those failures gave rise to a right of review under s476(1)(a) of the Act. The appellant's appeal was accordingly dismissed.

The appeal to this Court

[232] The appellant appeals to this Court on the grounds that the Full Court erred by:

(a)

affirming R D Nicholson J's judgment allowing the respondent's application for review of the decision of the Tribunal; and

(b)

finding that a failure of the Tribunal to comply with s430(1)(b), s430(1)(c) and s430(1)(d) of the Act was a failure to observe procedures required by the Act to be observed in connexion with the making of the decision and hence gave rise to a right of review under s476(1)(a) of the Act; and

(c)

holding that there was a failure by the Tribunal to comply with s430(1)(b), s430(1)(c) and s430(1)(d) of the Act.

[233] The respondent sought prerogative relief pursuant to s75 of the Constitution in the event that the appellant's appeal were to succeed.

[234] What I have said in relation to the appellant's appeal in Yusuf with respect to s430(1)(c) and s476 of the Act applies with equal force to this case. Simply because the Tribunal did not expand at length upon all of the claims made by the respondent does not mean that the Tribunal was obliged or failed to make factual findings in respect of them. The Tribunal fully appreciated that the respondent was making a number of claims and expressly held that none of his claims provided reason, within the meaning of the Convention to regard him as having a well-founded fear of persecution. Neither in the sense in which the phrase "material questions of fact" as used in the Act in s430(1)(c) is to be understood, nor in the sense in which a question of fact is to be conventionally understood apart from statute, did the Tribunal fail to make a relevant finding, or act in such a way as to entitle the Federal Court to review the Tribunal's decision pursuant to s476 of the Act.

[235] However, additional errors were held by the Full Court to have been made by the Tribunal, being failures to set out reasons for the decision, and to refer to the evidence upon which the findings of fact were based. The failure to set out the reasons is said to be a failure to provide a reason for the rejection of an important argument by the respondent, that deserters and draft evaders were capable of constituting a social group within the meaning of the Convention. But that is, really, just another way of saying that the Tribunal failed to set out findings on a material question of fact, a view which, in my opinion, is unsustainable for the reasons I have stated. But in any event "reasons for the decision" as referred to in s430(1)(b) do not mean reasons in detail with respect to each and every argument advanced by an applicant. "Reasons" mean reasons why the Tribunal considers that the application should be dismissed. And so long as the reasons given are sufficient for that purpose, the requirements of s430 are satisfied. Nor was there any failure to refer to the evidence or any other material upon which the decision was based. There was no basis upon which the Tribunal's reasons could be properly characterized as formulaic. The reasons were adequate in all respects. But in any event, a failure to give reasons, or to refer to some evidence or material upon which the decision is based, would not give rise to a right of review under s476(1)(a) any more than a failure to make a finding on a material question of fact would. These, in short, are not failures to observe procedures required by the Act.

[236] A tribunal such as the Refugee Review Tribunal is not obliged to pursue every snippet of information which comes to its attention. It is certainly not obliged to follow up a second hand reference to a mere press report of a purported statement of an official, however senior, of the United Nations. There was no need for the Tribunal to refer to that piece of material or to pursue enquiries in respect of it, as R D Nicholson J and the majority of the Full Court held it should. And, as will appear, such a pursuit would, in any event, have been an unrewarding one.

[237] The reference to the press report was made in a Human Rights Watch World Report, published in 1995, in these terms:

"According to a report in the influential German daily Sueddeutsche Zeitung, the United Nations High Commissioner for Refugees issued an order by which Armenian draft resisters should be given refugee status."

[238] A reference to a report in a newspaper, neither confirmed nor otherwise verified, and not reproduced, either in the original, or in translation, and purporting to say something itself neither reproduced nor verified, and claimed to have been promulgated by one official only, no matter how senior, could not be binding on the Tribunal, assuming it did exist, and could not answer the description of a material question of fact.

[239] While it may be accepted that the role of the United Nations High Commissioner for Refugees is an important one, the Commissioner does not have the authority to make "orders". He or she has no power to define, or define finally, the status of refugees. In short, no search, no matter how prolonged or exhaustive, could have unearthed a relevant "order" of the High Commissioner.

[240] The preamble to the Convention refers to the High Commissioner in this way:

"NOTING that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner".

[241] Article 35 in Ch VI of the Convention refers to the obligations of the subscribing countries to the Convention:

"1 The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.

2 In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:

(a)

the condition of refugees,

(b)

the implementation of this Convention, and

(c)

laws, regulations and decrees which are, or may hereafter be, in force relating to refugees."

[242] Article 1 of the Convention, which defines "refugee", does not purport to confer upon the Commissioner any power or jurisdiction, to declare or order, let alone conclusively so, a particular group or class of persons to be refugees.

[243] The Statute of the Office of the United Nations High Commissioner for Refugees, as adopted by resolution 428(V) of the United Nations General Assembly on 14 December 1950, which established the office and status of the United Nations High Commissioner for Refugees, provides as follows in para3:

"The High Commissioner shall follow policy directives given him by the General Assembly or the Economic and Social Council."

There is no reference in the Statute to "orders", and no power is conferred on the High Commissioner to make determinations binding upon subscribing states.

[244] The Tribunal found in substance that the respondent's objections were that he did not wish to risk his life for a purpose of no benefit to ethnic Armenians and he did not wish to spend further time in military service as he had already served two years. The Tribunal held that, while it sympathised with those beliefs, they did not disclose a genuinely held conscientious objection to the war over Nagorno-Karabakh. The Tribunal placed emphasis on the fact that the respondent did not express objections to killing other people in war situations, "subject to the inference that they were not Armenians".

[245] In his reasons for judgment, Emmett J (dissenting) in the Full Court said ^[202] :

"There may be an element of uncertainty in the language adopted by the primary judge in criticising the Tribunal for having rejected the Respondent's claim 'without coming to a view, if it could'. It is not clear whether his Honour was referring to the possibility that the Tribunal ought to have made further enquiries because its fact finding and investigative procedure was inadequate or whether his Honour was simply saying that the Tribunal should have come to a view on the basis of the material before it.

If the latter is the correct interpretation, it is difficult to see how the Tribunal could have come to a view, on the material before it, that deserters or draft evaders constitute a particular social group. That is to say, in so far as they are persecuted by the harshness of punishment, that would be no more than the application of a law of common application to them in respect of their contravention of that law. In any event, that would be a finding of fact which would not be subject to review in the Court.

If the former is the true interpretation, however, as the Respondent contended, there was nothing to indicate what kind of material might possibly be available. The one straw in the wind was the reference to the German newspaper report that the United Nations High Commissioner for Refugees had indicated that Armenian draft resisters should be given refugee status. There was apparently nothing more in the material before the Tribunal. The argument was that, if the United Nations High Commissioner for Refugees had expressed such a view, further enquiries were called for that may have elicited information which suggested that deserters and draft evaders, in the context of the Nagorno-Karabakh conflict, were being treated in a differential manner such as would constitute them a particular social group.

The difficulty with such an argument is that it is not clear what further inquiries could or should have been made by the Tribunal. There is certainly no material before the Court to indicate what might possibly have been ascertained by such an inquiry. 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.

In the absence of anything further before the Tribunal, and in the absence of any indication as to what might have been obtained had further enquiries been made, I do not see any basis for interfering with the determination of fact made by the Tribunal. The Tribunal considered the material before it and reached a conclusion, on the basis of that material, that deserters or draft evaders do not constitute a 'particular social group' within the meaning of that expression in the Convention. In my opinion, the learned primary judge erred in so far as he held that there was material before the Tribunal which would compel additional enquiry as to whether deserters or draft evaders could constitute a particular social group."

[246] I would, with respect, adopt what his Honour said in those passages.

[247] The Tribunal did not fail to do what it was required to do by s430 of the Act. And, even if it had, for the reasons that I have stated and those that I gave in Yusuf, such a failure would not be reviewable pursuant to s476 of the Act. Furthermore, both the Federal Court and the Full Court fell into error in the way in which they criticised and rejected the decision of the Tribunal for its omission of a reference to an "order" of the United Nations High Commissioner for Refugees which, even if it had been made, could have no binding or conclusive effect.

Orders

[248] I would allow the Minister's appeal and dismiss the respondent's application for prerogative relief.

[249] Consistent with the conditions upon which special leave to appeal to this Court was granted, I would not disturb any orders as to costs which have been made in the courts below and I would order that the Minister pays the respondent's costs of the appeal.