Case: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: followed
I am of opinion that it is essential to have regard to the statutory obligation in s 430 of the Act for the Tribunal to make and record findings of fact and to give reasons. As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] : '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 ( Repatriation Commission O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349, per Deane; at 353, per Fisher J; cf Fleming v The Queen [1998] HCA 68 ; (1998) 197 CLR 250 at 262-263 [28] - [29] ). ... 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 ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 .' 20 The task of statutory construction obliges courts to construe a relevant provision so that it is consistent with the language and purpose of all the provisions in the statute as is pointed out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] . When s 424A refers to 'the reason or part of the reason' it does not divide the reasoning process into what is said to be 'integral' from what the Tribunal is required to express as its reasons in the language of s 430(1). In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33] Finn and Stone JJ discussed the need to isolate what their Honours termed to be 'the integral parts of the reasons for the tribunal's decision'. Their Honours said that task, necessarily, was an interpretive one. 22 The task of the Tribunal is to set out what it regarded as its material reasoning as the passage cited above from Yusuf demonstrates. In the present case, this distinction may not matter because the Tribunal used the language 'in light of all the above information', in coming to the conclusion that the appellant had been untruthful in relation to the burning of her house, having identified , inter alia , the initial application that the appellant had made for her visa as part of that information. And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations, the Tribunal said that it had '...considered the evidence as a whole'. 23 Indeed, it would be a work of supererogation to suggest that the Tribunal did not have regard to that original application in coming to its assessment of untruthfulness. For it was what was omitted from that information, as the Tribunal incorrectly perceived, which was part of the critical reasoning that it adopted. 24 In a practical sense, in the present case, one only has to think that if the Tribunal had told the appellant of its erroneous understanding that her original application was relevant for the review because there was no assertion of harm, she would have been able to point out that that was a complete misreading and that she had claimed that her house had been burnt. It is pointless to speculate as to what might have happened thereafter, for the imperative requirements of the Act were not observed and the consequence is that the procedural fairness which the Act mandated be accorded to the appellant was denied her. For that reason I am of opinion that there was a jurisdictional error vitiating the Tribunal's decision.