Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: considered
issue was considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323. In that case the Court dealt with a submission that a decision of the Refugee Review Tribunal should be set aside because the Tribunal had failed to comply with its obligations under s 430 of the Migration Act 1958 (Cth) to provide adequate reasons for coming to the decision. The argument was that the failure of the Tribunal to have regard to certain matters which had been pressed before it rendered its reasons inadequate with the consequence that, on this ground, its decision was a nullity. The Court rejected this argument. Gleeson CJ (at 330) was prepared to accept that, if a decision maker fails to make a finding on some question of fact in the course of giving reasons "that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material". The absence of findings on a particular matter may be indicative of error but the failure to refer, in the course of giving reasons, to findings which were not made does not itself constitute reviewable error: "It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made . By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error ... or may provide some other ground for judicial review...But all the tribunal is obliged to set out is such findings as it has made ...": at 331-2 (emphasis added). Other members of the Court made similar observations: see per McHugh, Gummow and Hayne JJ at 346, 349 and 351. The issue was further considered by the High Court in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212. In Palme the Court held that a failure to discharge the statutory obligation imposed by s 501G of the Migration Act 1958 (Cth) , to give reasons for a decision to cancel a visa, did not mean that the decision could be set aside because it was tainted with jurisdictional error. Four aspects of the reasoning in Palme are of present relevance. First, it is necessary to recognise that a distinction is to be drawn between the decision and the reasons for that decision: see Palme at 225. An attack on the reasons which seeks to have the decision set aside fails to appreciate this distinction. This is a different attack from one which focuses on a jurisdictional error arising from the failure of the reasons to refer to, for example, a relevant consideration: cf Yusuf at 351-2. There is no reference, in the Full Court's reasons, to either of the High Court's decisions in Yusuf and Palme . Given that it was common ground that, in giving inadequate reasons, the Tribunal had committed a jurisdictional error of law, I assume that the Court's attention was not drawn to these decisions although I note that, in the primary judge's reasons, His Honour observed, referring to Yusuf , that "it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional": see Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 108 ALD 329 at 345. Whilst it may be accepted that the failure, on the part of a decision maker, to comply with a statutory obligation to provide reasons might constitute an error of law it does not follow that such an error is jurisdictional in nature such as to justify the setting aside of the impugned decision. That position does not change simply because the decision-maker is no longer available to provide further and better reasons. That circumstance does not, in my respectful opinion, render it inevitable that the decision under review should be set aside.