Minister for Immigration and Multicultural Affairs v Yusuf

"The case concerns the obligation of the Refugee Review Tribunal pursuant to s 430(1) of the Migration Act 1958 (Cth), 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. The issue in both cases was whether the Tribunal failed to set out its findings on a material question of fact as required by s 430(1)(c) and if so, whether this failure was reviewable under s 476(1) of the Act.

McHugh, Gummow & Hayne JJ:
[67] - [69]
As was rightly observed in the joint judgment in Singh, this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word ""material"" in s 430(1)(c). It was said that ""material"" in the expression ""material questions of fact"" must mean ""objectively material"". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read ""material"" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that
conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may
reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[89]
For the reasons given earlier, even if it were said that whether this invasion occurred in the manner, and with the consequences, described by Ms Yusuf was a material question of fact, a failure to make a finding about it would not amount to a breach of s 430, for the house invasion was not material to the decision the Tribunal actually made. Nor, in the particular circumstances of this case, does any failure by the Tribunal to make a finding about this matter in its s 430 statement reveal any error of law by the Tribunal or any failure to take account of a relevant consideration.

[76]
...The various provisions of s 476 enumerate the grounds on which judicial review of Tribunal decisions may be sought. The section does so in a way that, at least at first sight, allows more limited grounds than the grounds on which judicial review may ordinarily be sought.

[77]
The Federal Court granted review in these cases on the basis that, by reason of the Tribunal's failure to make findings, the Tribunal had failed to comply with ""procedures that were required by this Act or the regulations to be observed in connection with the making of the decision"". It is implicit in what has already been said about s 430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground. An alleged failure to make a finding of fact on a material question is not a failure to observe a ""procedure … required"" by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.

[78]
That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact. For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations. It is necessary, therefore, to consider some further aspects of s 476, especially s 476(1)(b), (c) and (e) and s 476(3)(d) and (e). Counsel for Ms Yusuf, in the alternative to par (a) upon which the Full Court had based its decision, relied upon one or more of pars (b), (c) and (e) of s 476(1).

[82]
...""Jurisdictional error"" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

[83]
No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it ""exceeds its authority or powers"". If that is so, the person who purported to make the decision ""did not have jurisdiction"" to make the decision he or she made, and the decision ""was not authorised"" by the Act.

[84]
...If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.

[90] - [91]
On its face this amounts to a finding that the Tribunal was persuaded that there had only been two attacks and was not persuaded that there had been more. That view is reinforced by the Tribunal's later reference to ""the two isolated occasions the applicant encountered problems"" and its reference to her having ""twice [come] under attack"". Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well-founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan. This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion. That being so, it is not demonstrated that the Tribunal made some error of law. It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.

[94]
The Tribunal found that if, on his return to Armenia, Mr Israelian was punished for not meeting his obligation to give military service it would be ""the application of a law of common application, imposed by the authorities regardless of … any political opinion"". This, in the opinion of the Tribunal, did not constitute persecution . The Tribunal framed its discussion of the issues in its s 430 statement in terms of Mr Israelian's claim to be a ""conscientious objector"" and concluded that his expressed views ""do not disclose genuine convictions based on ethical, moral or political grounds"". It did not, in its reasons, refer expressly to his alleged membership of a social group (being that of deserters or draft evaders) although it expressed its conclusion about unwanted consequences that might happen to him on his return as punishment which ""would not be motivated by Convention reasons"".

[97]
Nevertheless, it must be recalled that the Tribunal did not base its conclusion affirming the decision to refuse Mr Israelian a protection visa only on its finding about conscientious objection. It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect. Moreover, the evidence to which counsel for Mr Israelian pointed as suggesting that the sanctions imposed on Mr Israelian would go beyond the application of the general law related to deserters, not draft evaders. It was not demonstrated that those groups formed part of a single ""social group"" within the meaning of the Convention definition. That being so, no relief under Pt 8 of the Act or under s 75(v) should go. Special leave having been granted on the same terms as were imposed in the matter concerning Ms Yusuf, there should be orders allowing the Minister's appeal, setting aside the orders of the Full Court of the Federal Court save as to costs and in lieu ordering that the appeal to that Court be allowed, the orders of the trial judge save as to costs set aside and in lieu ordering that the application for review be dismissed. The application for order nisi should be dismissed with no order as to costs."