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: Gleeson CJ)
Minister for Immigration and Multicultural Affairs
vYusuf
Judges:
Gleeson CJGaudron J
McHugh J
Gummow J
Kirby J
Hayne J
Callinan J
Legislative References:
-
Case References:
-
Judgment date: 31 May 2001
Decision by:
Gleeson CJ
[1] I agree with the reasons for judgment of McHugh, Gummow and Hayne JJ, and with the orders they propose. In view of the division of opinion which has emerged in the Federal Court, I would make the following additional comments.
[2] In each of the present appeals, the respondent applied for a protection visa under s36 of the Migration Act 1958 (Cth) ("the Act"), claiming to satisfy the criterion set out in s36(2). In summary form, the respondent set out to satisfy the Minister's delegate, pursuant to s65 of the Act, that the respondent had a well-founded fear of persecution for a Convention reason if she or he returned to the country of her or his nationality. Having failed to satisfy the delegate, the respondent applied to have the delegate's decision to refuse to grant the visa reviewed, under Pt7 of the Act, by the Refugee Review Tribunal ("the Tribunal").
[3] The proceedings before the Tribunal, which were conducted in accordance with the procedures prescribed by Pt7, were not adversarial. There was no contradictor who joined issue upon all or any of the facts alleged by the respondent. There was an ultimate question, expressed in terms of the Convention definition of a refugee, for determination by the Tribunal. In each case the respondent, for the purpose of satisfying the Tribunal that there should be a favourable resolution of that question, gave a history of past events, and an account and justification of present fears. In each case, the Tribunal, in setting out its reasons for its decision, made certain findings about the facts asserted, and contentions advanced. In each case, the Federal Court, when reviewing the decision of the Tribunal, under Pt8 of the Act, considered that there were questions of fact raised in support of the visa application which were material, even if the Tribunal had not regarded them as such, and which had not been the subject of a finding made and set out in the Tribunal's reasons. Therefore, it was held, there had been a failure by the Tribunal to comply with s430(1)(c) of the Act, which meant that the ground of review in s476(1)(a) had been made out, and the decision of the Tribunal should be quashed.
[4] As McHugh, Gummow and Hayne JJ point out, a failure by the Tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the Tribunal's decision, either in the Federal Court or in this Court, quite apart from whatever consequences it may have under s476(1)(a). A consideration of those other possible consequences has been necessary in deciding the outcome of the present appeals, and applications under s75(v) of the Constitution. But the first issue for determination in this Court concerns the application of s476(1)(a).
[5] When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question.
[6] Such a complaint could only invoke the ground of judicial review in s476(1)(a) if a failure to make a finding on a question of fact means that a procedure required by the Act to be observed in connection with the making of the decision has not been observed.
[7] If s476(1)(a) has that meaning, then there is an incongruity in the section when read as a whole, because s476(3)(e) qualifies s476(1)(d) by excluding the Tribunal's failure to take a relevant consideration into account from the category of an improper exercise of power. The difference between failing to make a finding on a material question of fact, and failing to take a relevant consideration into account, is elusive. The former is narrower than the latter, but most examples of the former could also be presented as the latter. Both of the present cases involve a contention which is not materially different from a claim that the Tribunal failed to take a relevant consideration into account.
[8] To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the Tribunal engages when it reviews a delegate's decision).
[9] The major difficulty for the respondents, however, lies in the language of s430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal's decision, as being material. A good deal of materiality jurisprudence has developed from the attempt to relate s476(1)(a) and s430. Questions of fact which appear to have been regarded by the Tribunal as material are sometimes described as "subjectively material", to distinguish them from questions of fact which are regarded as material by a court reviewing the Tribunal's decision. Facts of the latter kind are then described as "objectively material". And the level of generality, or particularity, at which facts are to be classified for the purpose of determining their materiality is a problem. The distinction between facts in issue, particulars, and evidence, which may be difficult even in adversarial litigation conducted with or without formal pleadings, is even more difficult when applied to proceedings before the Tribunal.
[10] The requirement imposed by s430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s476(1) other than s476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases. But all the Tribunal is obliged to set out is such findings as it has made. The construction of s430 for which the respondents contend in effect eliminates the definite article from s430(1)(c), treats "any" as meaning "all", and finds in an express obligation to make a written record of findings of fact an implied obligation as to the ambit of the findings which must be made. None of this is impossible, but, like the meaning that the respondents attribute to s476(1)(a), it is strained. When to that is added the incongruity associated with s476(3)(e), and the problems of determining materiality on an "objective" basis in the context of legal review of a decision which commonly turns upon the Tribunal's assessment of the credibility of a person seeking to establish the status of a refugee, it is a construction I am unable to accept.