Minister for Immigration and Multicultural Affairs v Yusuf

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron J,McHugh,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 31 May 2001
• Neutral Citation: 2001-0531 HCA D,[2001] HCA 30
• Court: High Court
• Docket Number: M10/2000 M13/2000 M127/2000
• Date: 31 May 2001

[2001] HCA 30

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

M10/2000

M126/2000

M13/2000

M127/2000

Minister for Immigration and Multicultural Affairs

Appellant

and

Fathia Mohammed Yusuf

Respondent

Re Minister for Immigration and Multicultural Affairs & Anor

Respondents

Ex Parte Fathia Mohammed Yusuf

Prosecutor/Applicant

Minister for Immigration and Multicultural Affairs

Appellant

and

Oganes Israelian

Respondent

Re Minister for Immigration and Multicultural Affairs & Anor

Respondents

Ex Parte Oganes Israelian

Prosecutor/Applicant

Representation:

R R S Tracey QC with A L Cavanough QC and P R D Gray for the appellant (instructed by Australian Government Solicitor)

J Basten QC with J A Gibson for the respondent (instructed by Victoria Legal Aid)

Constitution, s 75(v).

Migration Act 1958 (Cth), Pt 8, ss 430 and 476.

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 , disapproved.

Minister for Immigration and Multicultural Affairs v Yusuf Re Minister for Immigration and Multicultural Affairs ; Ex parte Yusuf Minister for Immigration and Multicultural Affairs v Israelian Re Minister for Immigration and Multicultural Affairs; Ex parte Israelian

Immigration — Refugees — Review by Refugee Review Tribunal of decision to refuse application for protection visa — Whether s 430(1)(c) of Migration Act 1958 (Cth) imposes a duty or obligation on Tribunal to make, and to set out, findings on all objectively material questions of fact.

Administrative law — Judicial review — Refugees — Application for protection visa — Judicial review of decision of Refugee Review Tribunal — Scope of grounds of review in Pt 8 of Migration Act 1958 (Cth) generally — Jurisdictional error as ground for review in s 476 of Migration Act 1958 (Cth).

Administrative law — Judicial review — Refugees — Application for protection visa — Judicial review of decision of Refugee Review Tribunal — Where Tribunal failed to refer to alternative basis of applicant's claim to have a well-founded fear of persecution — Whether constitutes a ground for judicial review in s 476 of Migration Act 1958 (Cth).

Administrative law — Judicial review — Refugees — Application for protection visa — Judicial review of decision of Refugee Review Tribunal — Significance of past acts to applicant's claim to have a well-founded fear of persecution — Where Tribunal made no express finding about one of three alleged past acts — Whether constitutes a ground for judicial review in s 476 of Migration Act.

Immigration — Refugees — Whether possible application of law of general application can give rise to a well-founded fear of persecution.

ORDER

1. Appeal allowed.

2. Appellant to pay respondent's costs of the appeal.

3. Set aside order 1 made by the Full Court of the Federal Court on 2 December 1999, and in place thereof, order that:

• a) the appeal to that Court be allowed;

• b) orders 1 and 3 of the orders made by Finn J on 30 August 1999 be set aside and in place thereof, order that the application for review be dismissed.

1 Gleeson CJ. 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 s 36 of the Migration Act 1958 (Cth) (‘the Act’), claiming to satisfy the criterion set out in s 36(2). In summary form, the respondent set out to satisfy the Minister's delegate, pursuant to s 65 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 Pt 7 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 Pt 7, 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 Pt 8 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 s 430(1)(c) of the Act, which meant that the ground of review in s 476(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 s 476(1)(a). A consideration of those other possible consequences has been necessary in deciding the outcome of the present appeals, and applications under s 75(v) of the Constitution. But the first issue for determination in this Court concerns the application of s 476(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 s 430. 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 s 476(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 s 476(1)(a) has that meaning, then there is an incongruity in the section when read as a whole, because s 476(3)(e) qualifies s 476(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 s 430. 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 ss 476(1)(a) and 430. 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 s 430 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 s 476(1) other than s 476(1)(a), or may provide some other ground for...