Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: applied
Authority's arguments as to the inadequacy of the Tribunal's reasons were based on these provisions. So far as the argument was based on s 43(2B) it must be rejected. The Full Court of this Court has held that that provision requires the Tribunal to do no more that to state the findings which it has actually made. It does not require the Tribunal to make the findings which it ought to have made: Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 at [8] per Hill and Allsop JJ; see also Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] per Rares J; Gilkinson v Repatriation Commission (2008) 104 ALD 406 at 410 [14] per Rares J. That conclusion is inevitable in light of the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ where it was held that s 430 of the Migration Act 1958 (Cth) which is not materially different to s 43(2B) operated in that manner. There is no obligation to "make all necessary findings of fact" the obligation is only to produce reasons which are adequate. In that circumstance, I propose to treat the ground as relating to the duty imposed by s 43(2B). The allegation that s 43(2B) requires the Tribunal to make such findings is, I think, untenable. As I have already noted, that view of s 43(2B) is at odds with the approach held to be required by the High Court to s 430 of the Migration Act 1958 (Cth) in Yusuf . The three questions of law relating to this issue posed by the applicant were as follows: (a) whether the Tribunal made all necessary findings of fact to support its conclusion that the grounds for cancellation of the respondent's CoA relied upon by the applicant for the purposes of CAR 269(1)(d) had not been made out; (f) whether the Tribunal failed to give reasons (or sufficient and adequate reasons) for its decision in breach of s.43 (2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"); and (g) further or alternatively, whether the Tribunal failed to include in its reasons findings (or sufficient and adequate findings) on material questions of fact or otherwise failed to refer to the evidence or other material on which such findings were based in breach of s.43 (2B) of the AAT Act. In light of my conclusions, questions (a) and (g) should be answered: "The Tribunal complied with its obligations under s 43(2B)." Question (f) should be answered: "No. The reasons of the Tribunal were not adequate." Second issue: irrelevant considerations Of course, if Dornan is correct then, additionally, the Tribunal made an error of law. However, the significance of that for present purposes hinges upon whether that conclusion would lead to a different result. Clearly, such an approach would require the Tribunal to produce its reasons again. The difference would be that, if the error of law were jurisdictional the orders of the Tribunal might be set aside, it might have to re-exercise its powers afresh and it might have to do more than just produce reasons. I think it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional. It is true, no doubt, that generally, an error of law will, in the hands of a non-judicial tribunal, be jurisdictional: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. However, it is to be noted that the errors of law there identified as having that effect were said to be those causing an inferior tribunal to identify the wrong issue. It may be doubted whether an error of law constituted by inadequate reasons could ever have that effect for reasons explained in Yusuf .