Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323
Outcome: followed
Having considered the evidence and the submissions advanced, and extended to the Applicant a " reasonable opportunity " to present his case, the remaining task of the Tribunal was that set forth in s 43(2B) of the Administrative Appeals Tribunal Act , namely to make its findings on material questions of fact and refer to the evidence upon which those findings were based. That sub-section provides as follows: Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. This provision does not require the Tribunal to set forth all findings of fact, but only those findings on " material questions of fact ": cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [67] [68], [2001] HCA 30 ; 206 CLR 323 at 345 6. A more focussed submission in respect to hardship may have led the Tribunal to make a further finding. But the failure to make such a possible further finding does not expose reviewable error on the part of the Tribunal. 36 When determining whether the reasons for decision of the Tribunal have adequately dealt with the particular legal and factual issues which were advanced before it, the Court must take into account a variety of factors. These include the comparative importance (or lack of importance) of any particular submission being advanced for determination and whether the evidence being presented raises any issue in need of resolution (even if not expressly the subject of a submission, especially in the case of an unrepresented party). In the present proceeding, and in accordance with Direction No 21, the Tribunal gave consideration to those matters which the Minister and the Government " directed " should be given " particular importance " and those matters which it directed should be given " less individual weight ". Relevantly, " hardship " to a party whose visa was cancelled was not a matter specifically addressed by the Direction. 42 Similarly, in Vu v Minister for Immigration and Citizenship [2008] FCAFC 12 , 101 ALD 454 Tamberlin J concluded: [13] The second submission involved the assumption, as his Honour pointed out, that it was a relevant fact for the minister to consider whether Mr Vu could receive medical treatment, in particular methadone treatment, for his heroin addiction if he goes back to Vietnam. His Honour found that the minister was aware of that fact and took it into account when making her decision. We have grave doubts that any of the particular matters of hardship identified by Mr Vu, even if not taken into account by the minister, would show jurisdictional error in her decision. The minister clearly addressed both the issue of hardship generally and each of the topics to which the direction issued under s 499(1) of the Act required the decision-maker to consider when exercising discretion. The particular matters of hardship raised by Mr Vu are not matters which, either expressly or by necessary implication from s 501 of the Act, required the minister to have regard to each of them: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1981) 162 CLR 24 ; 66 ALR 299 ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225 ; [2001] HCA 30. North and Mansfield JJ agreed.