Case: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 
Outcome: discussed
raises a tension between a consideration of the way in which a court must assess the impact of a jurisdictional error that is found and its bearing on the overall decision. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 541-542 [74] Gummow and Hayne JJ said that: '... to attempt to divorce the Tribunal's statement of its findings on what it considered to be a material question of fact, from the decision it made and, in particular, from its reasons, may be dangerous in cases like the present where it is accepted that the Tribunal made an error of law. There are several reasons why it may be a dangerous process. First, there is the notorious difficulty of disentangling findings of fact from conclusions about applicable legal principle. Secondly, assuming that those difficulties can be surmounted, the findings of fact which the Tribunal makes after hearing and assessing the body of material and submissions will necessarily reflect the Tribunal's conclusions about applicable legal principle and will be directed to the questions that those principles present.' Their Honours went on to say: 'If, in that review, the Tribunal makes an error of law and a subsequent review is ordered, what is the Tribunal then to do if the further findings are to be made about subjects with which the first Tribunal dealt? For it to take, as its starting point, findings that were made on that earlier review under a misapprehension of applicable legal principles, may, indeed often would, skew the second factual inquiry by the Tribunal.' Their Honours then noted that by contrast, if no more findings needed to be made on the second review because only one conclusion was lawfully open to the Tribunal on the findings that it made at the first, the difficulties to which they had referred would be much reduced, if not eliminated. The Tribunal's function here, as the Minister pointed out, involved consideration of the situation at two points of time for certain matters. Under cll 845.21 and 845.221 some criteria, such as those under cl 845.216, had to be satisfied at the times of both the application and the decision. Additionally, under cl 845.22 further criteria had to be satisfied at the time of the decision. Under cl 845.222(2)(b)(ii) the appellant's score on the business skills points test is calculated as the sum of his scores, for present purposes, at the time when the application for the visa was made. Under cl 845.222(2)(c) certain assets only are to be valued or assessed for value in determining whether an applicant meets the points criteria under Pt 4 of Schedule 7 of the Regulations (see items 7401-7404). I am of opinion that when a matter is remitted (under Div 4 Pt 5 of the Act) to the Tribunal for further hearing and determination according to law, similar reasoning applies. The way in which that review is undertaken is similar to the task of the Refugee Review Tribunal in like circumstances see: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 and SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (see esp at [35]-[36]). The fact that the appellant had not satisfied the points test in each criterion in a decision which is set aside would be a matter that the Tribunal could take into account, if it had to complete its review, although it would be able to review the question afresh, as Gummow and Hayne JJ pointed out in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518. Indeed, in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ held that a decision of the Refugee Review Tribunal was affected by jurisdictional error where the tribunal had reached a decision to refuse a visa to an applicant and had said that it had given no weight to a confidential letter. The visa applicant was ignorant of the existence of the letter which contained credible, relevant and significant material which was adverse to the visa applicant. Their Honours said: 'It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.' (222 ALR at 417 [19])