Case: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499
Outcome: cited
requirements imposed by s 430(1) (and in particular s 430(1)(c)) were considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323. In rejecting a contention that s 430 requires " the Tribunal to make findings on any and every matter of fact objectively material to the decision " being reached, McHugh, Gummow and Hayne JJ concluded: [68] 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 [2000] FCA 845 ; ((2000) 98 FCR 469 at 481 [47] - [48] ) 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. [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. 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. (Emphasis in original) The same construction was given to s 430 by the then Chief Justice: [2001] HCA 30 at [10] , [2001] HCA 30 ; 206 CLR 323 at 331 to 332. Whatever uncertainty may have prevailed prior to Yusuf, notwithstanding the unambiguous terms of s 430, there now remains no uncertainty as to the proper construction of s 430 or the requirements imposed: eg. SZJOC v Minister for Immigration and Citizenship [2008] FCA 1342 at [20] per Graham J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [52] per Lander J.