Case: Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 
Outcome: considered
Minister relied on remarks of McHugh J in Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 (and in particular I apprehend at 412-413 [35]-[36] and 416-418 [60]-[70]) that in effect the Tribunal in stating its reasons for decision was entitled to make findings of fact and was not required to go through line by line each item of evidence, or each relevant matter and deal with it in turn, accepting or dismissing it. So much may be accepted. The Minister also argued that the decision required under s 65 of the Migration Act 1958 (Cth) ('the Act') was whether or not the Tribunal, standing in the shoes of the Minister as the decision-maker, was satisfied of the matters set out in the Regulations for the purposes of granting the visa for which the appellant applied. She contended that findings along the way were not ones which went to jurisdiction. I am of opinion that it was not open to the Tribunal, on the basis only of the findings it set out, to find that a person in a single business that consists of running one retail trading shop who makes decisions daily about placing orders and pricing of goods offered for sale, and had done so for over one year prior to his application without any suggestion of supervision or control, did not have direct and continuous involvement in the management of that business from day to day or in making decisions that affect the overall direction and performance of that business. The Tribunal did not express any finding or reason for that ultimate conclusion, except that it did not find the evidence compelling. As McHugh J pointed out, in Minister for Immigration and Multicultural Affairs v Durairajasingham [2000] HCA 1 ; (2000) 74 ALJR 405 at 417 [70] the requirements of s 368 are that the Tribunal give a written but not lengthy explanation of the decision already made. I am of opinion that there was an absence of any reason, factual finding or reference to facts expressed in the Tribunal's reasons that could show that a person who had the duties and performed the functions of the appellant in the business during the period which the Tribunal was considering, namely the year prior to his visa application being lodged, did not satisfy the criteria of cl 845.216. Having regard to the Tribunal's expressed findings and reasons, its decision on this issue was so unreasonable that no reasonable decision-maker could have come to it on the basis expressed in those findings and reasons. That is not to say that another tribunal could not come to the same decision, but if it did so it would have to apply the law correctly, make findings and give reasons which were capable of supporting the decision. I can see no error of approach in the way that the Tribunal dealt with this matter. It was entitled to form a view as to whether or not what had been put to it by the appellant satisfied it as to the value of his assets. This was, as McHugh J said in the Minister for Immigration and Multicultural Affairs v Durairajasingham ((2000) 74 ALJR at 417 [67]) a finding on, inter alia, credibility or establishment of facts which was the function of a primary decision-maker par excellence. I do not consider that the Tribunal has been shown to have erred or not performed its function of review of the application in this respect. The question arises of how the matter ought then be resolved. The Minister has raised an issue of some difficulty. She says that the Tribunal may have erred in the way in which I have found, but that nonetheless even if one accepts that result, the application would be rejected on reconsideration by the Tribunal. That is because, even if the Tribunal formed a more favourable view on, first, the issue under cl 845.216 and then, secondly, on the language issue and awarded the appellant 10 more points, he would still be 10 points short of the 105 required to satisfy the points.