Minister for Immigration and Multicultural Affairs v Yusuf

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS   APPELLANT

AND

FATHIA MOHAMMED YUSUF  RESPONDENT

Minister for Immigration and Multicultural Affairs v Yusuf

[2001] HCA 30

31 May 2001
M10/2000

ORDER

1.   Appeal allowed.

2.   Appellant to pay respondent's costs of the appeal.

3.   Set aside order 1 made by the Full Court of the Federal Court on 2 December 1999, and in place thereof, order that:

a)     the appeal to that Court be allowed;

b)orders 1 and 3 of the orders made by Finn J on 30 August 1999 be set aside and in place thereof, order that the application for review be dismissed.

On appeal from the Federal Court of Australia

Representation:

R R S Tracey QC with A L Cavanough QC and P R D Gray for the appellant (instructed by Australian Government Solicitor)

J Basten QC with J A Gibson for the respondent (instructed by Victoria Legal Aid)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS & ANOR  RESPONDENTS

EX PARTE FATHIA MOHAMMED YUSUF          PROSECUTOR/APPLICANT

Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf
31 May 2001
M126/2000

ORDER

Application dismissed with no order as to costs.

Representation:

J Basten QC with J A Gibson for the prosecutor/applicant (instructed by Victoria Legal Aid)

R R S Tracey QC with A L Cavanough QC and P R D Gray for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS   APPELLANT

AND

OGANES ISRAELIAN  RESPONDENT

Minister for Immigration and Multicultural Affairs v Israelian
31 May 2001
M13/2000

ORDER

1.   Appeal allowed.

2.   Appellant to pay respondent's costs of the appeal.

3.   Set aside so much of the order made by the Full Court of the Federal Court on 20 May 1999 as dismissed the appeal to that Court, and in place thereof, order that:

a)     the appeal to that Court be allowed;

b)orders 1, 2 and 3 of the orders made by R D Nicholson J on 1 May 1998 be set aside and in place thereof, order that the application for review be dismissed.

On appeal from the Federal Court of Australia

Representation:

R R S Tracey QC with A L Cavanough QC and P R D Gray for the appellant (instructed by Australian Government Solicitor)

B A Keon-Cohen QC with J A Gibson for the respondent (instructed by Armstrong Ross)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS & ANOR  RESPONDENTS

EX PARTE OGANES ISRAELIAN              PROSECUTOR/APPLICANT

Re Minister for Immigration and Multicultural Affairs; Ex parte Israelian
31 May 2001
M127/2000

ORDER

Application dismissed with no order as to costs.

Representation:

B A Keon-Cohen QC with J A Gibson for the prosecutor/applicant (instructed by Armstrong Ross)

R R S Tracey QC with A L Cavanough QC and P R D Gray for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports

CATCHWORDS

Minister for Immigration and Multicultural Affairs v Yusuf
Re Minister for Immigration and Multicultural Affairs; Ex parte Yusuf
Minister for Immigration and Multicultural Affairs v Israelian
Re Minister for Immigration and Multicultural Affairs; Ex parte Israelian

Immigration – Refugees – Review by Refugee Review Tribunal of decision to refuse application for protection visa – Whether s 430(1)(c) of Migration Act 1958 (Cth) imposes a duty or obligation on Tribunal to make, and to set out, findings on all objectively material questions of fact.

Administrative law – Judicial review – Refugees – Application for protection visa – Judicial review of decision of Refugee Review Tribunal – Scope of grounds of review in Pt 8 of Migration Act 1958 (Cth) generally – Jurisdictional error as ground for review in s 476 of Migration Act 1958 (Cth).

Administrative law – Judicial review – Refugees – Application for protection visa – Judicial review of decision of Refugee Review Tribunal – Where Tribunal failed to refer to alternative basis of applicant's claim to have a well-founded fear of persecution – Whether constitutes a ground for judicial review in s 476 of Migration Act 1958 (Cth).

Administrative law – Judicial review – Refugees – Application for protection visa – Judicial review of decision of Refugee Review Tribunal – Significance of past acts to applicant's claim to have a well-founded fear of persecution – Where Tribunal made no express finding about one of three alleged past acts – Whether constitutes a ground for judicial review in s 476 of Migration Act.

Immigration – Refugees – Whether possible application of law of general application can give rise to a well-founded fear of persecution.

Constitution, s 75(v).
Migration Act 1958 (Cth), Pt 8, ss 430 and 476.

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, disapproved.

1. GLEESON CJ.   I agree with the reasons for judgment of McHugh, Gummow and Hayne JJ, and with the orders they propose.  In view of the division of opinion which has emerged in the Federal Court, I would make the following additional comments.

2. In each of the present appeals, the respondent applied for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"), claiming to satisfy the criterion set out in s 36(2). In summary form, the respondent set out to satisfy the Minister's delegate, pursuant to s 65 of the Act, that the respondent had a well-founded fear of persecution for a Convention reason if she or he returned to the country of her or his nationality. Having failed to satisfy the delegate, the respondent applied to have the delegate's decision to refuse to grant the visa reviewed, under Pt 7 of the Act, by the Refugee Review Tribunal ("the Tribunal").

3. The proceedings before the Tribunal, which were conducted in accordance with the procedures prescribed by Pt 7, were not adversarial. There was no contradictor who joined issue upon all or any of the facts alleged by the respondent. There was an ultimate question, expressed in terms of the Convention definition of a refugee, for determination by the Tribunal. In each case the respondent, for the purpose of satisfying the Tribunal that there should be a favourable resolution of that question, gave a history of past events, and an account and justification of present fears. In each case, the Tribunal, in setting out its reasons for its decision, made certain findings about the facts asserted, and contentions advanced. In each case, the Federal Court, when reviewing the decision of the Tribunal, under Pt 8 of the Act, considered that there were questions of fact raised in support of the visa application which were material, even if the Tribunal had not regarded them as such, and which had not been the subject of a finding made and set out in the Tribunal's reasons. Therefore, it was held, there had been a failure by the Tribunal to comply with s 430(1)(c) of the Act, which meant that the ground of review in s 476(1)(a) had been made out, and the decision of the Tribunal should be quashed.

4. As McHugh, Gummow and Hayne JJ point out, a failure by the Tribunal to deal, in its reasons for decision, with some assertion of fact made by a visa applicant may, or may not, have consequences for judicial review of the Tribunal's decision, either in the Federal Court or in this Court, quite apart from whatever consequences it may have under s 476(1)(a). A consideration of those other possible consequences has been necessary in deciding the outcome of the present appeals, and applications under s 75(v) of the Constitution. But the first issue for determination in this Court concerns the application of s 476(1)(a).

5. When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, 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. It was not suggested, in either of the present cases, that the Tribunal made some finding of fact which it failed to set out. The substance of the complaint was that the Tribunal failed to make a finding upon a particular question.

6. Such a complaint could only invoke the ground of judicial review in
   s 476(1)(a) if a failure to make a finding on a question of fact means that a procedure required by the Act to be observed in connection with the making of the decision has not been observed.

7. If s 476(1)(a) has that meaning, then there is an incongruity in the section when read as a whole, because s 476(3)(e) qualifies s 476(1)(d) by excluding the Tribunal's failure to take a relevant consideration into account from the category of an improper exercise of power. The difference between failing to make a finding on a material question of fact, and failing to take a relevant consideration into account, is elusive. The former is narrower than the latter, but most examples of the former could also be presented as the latter. Both of the present cases involve a contention which is not materially different from a claim that the Tribunal failed to take a relevant consideration into account.

8. To treat a failure to make a finding on a question of fact as a failure to observe a procedure in connection with the making of a decision involves a strained interpretation of the statutory language, especially in a context which distinguishes between legal review (indeed, somewhat attenuated legal review) and full merits review (of the kind in which the Tribunal engages when it reviews a delegate's decision).

9. The major difficulty for the respondents, however, lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal's decision, as being material. A good deal of materiality jurisprudence has developed from the attempt to relate ss 476(1)(a) and 430. Questions of fact which appear to have been regarded by the Tribunal as material are sometimes described as "subjectively material", to distinguish them from questions of fact which are regarded as material by a court reviewing the Tribunal's decision. Facts of the latter kind are then described as "objectively material". And the level of generality, or particularity, at which facts are to be classified for the purpose of determining their materiality is a problem. The distinction between facts in issue, particulars, and evidence, which may be difficult even in adversarial litigation conducted with or without formal pleadings, is even more difficult when applied to proceedings before the Tribunal.

10. The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. 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 of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue. No one suggests that the present are such cases. But all the Tribunal is obliged to set out is such findings as it has made. The construction of s 430 for which the respondents contend in effect eliminates the definite article from s 430(1)(c), treats "any" as meaning "all", and finds in an express obligation to make a written record of findings of fact an implied obligation as to the ambit of the findings which must be made. None of this is impossible, but, like the meaning that the respondents attribute to s 476(1)(a), it is strained. When to that is added the incongruity associated with s 476(3)(e), and the problems of determining materiality on an "objective" basis in the context of legal review of a decision which commonly turns upon the Tribunal's assessment of the credibility of a person seeking to establish the status of a refugee, it is a construction I am unable to accept.

11. GAUDRON J. These four proceedings, being two appeals and two applications for relief under s 75(v) of the Constitution, were heard together. The proceedings arise out of separate applications for protection visas by Ms Yusuf, a citizen of Somalia, and Mr Israelian, an Armenian. Both applications were rejected by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"). The decisions were separately reviewed and affirmed by the Refugee Review Tribunal ("the Tribunal")[1]. Ms Yusuf and Mr Israelian separately sought judicial review of the Tribunal's decisions in the Federal Court of Australia pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act").

    [1]In the case of Mr Israelian, the review in question was conducted pursuant to an order of the Federal Court of Australia following the setting aside of an earlier decision by the Tribunal.

12. At first instance, both applications for judicial review were successful and the decisions of the Tribunal were set aside by the Federal Court. It was separately held in each case that the Tribunal failed to comply with procedures required by the Act in that it failed to set out findings on material questions of fact as required by s 430(1)(c) of the Act[2].  From each of those decisions, the Minister appealed unsuccessfully to the Full Federal Court.  The Minister now appeals to this Court from the decisions of the Full Court.

    [2]In Israelian v Minister for Immigration and Multicultural Affairs, R D Nicholson J also found that the decision involved an error of law (incorrect interpretation of applicable law).

13. The Minister's appeals to this Court are separately resisted by Ms Yusuf and Mr Israelian on the ground that the decisions of the Full Court are correct. Additionally, it is contended in each appeal that the decision of the Full Court should be affirmed on grounds other than the failure of the Tribunal to set out findings in accordance with s 430(1)(c) of the Act. And because Pt 8 of the Act limits the grounds upon which the Federal Court may review a decision of the Tribunal, Ms Yusuf and Mr Israelian each seek relief under s 75(v) of the Constitution in the event that the Minister's appeals are successful[3].

    [3]See Abebe v Commonwealth (1999) 197 CLR 510.

    Relevant legislative provisions

14. Part 7 of the Act provides with respect to the review by the Tribunal of certain decisions made under the Act by the Minister or by his or her delegate[4], including decisions with respect to the refusal to grant a protection visa[5]. Division 4 of Pt 7 provides, as its heading indicates, with respect to the conduct of a review. As the provisions of Pt 7 stood at the relevant time, they specified what material might be given to the Tribunal[6] and how the Tribunal was to conduct its hearings[7].  They also set out the Tribunal's powers[8] and the rights of applicants[9] in relation to Tribunal hearings.

    [4]As to the decisions which are reviewable, see s 411 of the Act.

    [5]See s 411(1)(c).

    [6]Section 423.

    [7]Sections 425 and 429.

    [8]Sections 427 and 428.

    [9]Sections 425 and 426.

15. Division 5 of Pt 7 of the Act is concerned with decisions of the Tribunal. Section 430, which is in Div 5, provides in sub-s (1) as follows:

    "          Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    (a)sets out the decision of the Tribunal on the review; and

    (b)      sets out the reasons for the decision; and

    (c)sets out the findings on any material questions of fact; and

    (d)refers to the evidence or any other material on which the findings of fact were based."

16. Part 8 of the Act provides with respect to the review of certain decisions by the Federal Court, including decisions of the Tribunal[10]. The grounds upon which a decision may be reviewed are set out in s 476(1) which provides that, subject to sub-s (2), which is not presently relevant:

    [10]Section 475(1)(b).

    "... application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

    (a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

    (b)that the person who purported to make the decision did not have jurisdiction to make the decision;

    (c)that the decision was not authorised by this Act or the regulations;

    (d)that the decision was an improper exercise of the power conferred by this Act or the regulations;

    (e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

    (f)that the decision was induced or affected by fraud or by actual bias;

    (g)that there was no evidence or other material to justify the making of the decision."

17. The grounds specified in ss 476(1)(d) and (g) of the Act – improper exercise of power and want of evidence – are circumscribed, respectively, by sub-ss (3) and (4) of that section. It is necessary to refer only to sub-s (3) which provides:

    "          The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

    (a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

    (b)an exercise of a personal discretionary power at the direction or behest of another person; and

    (c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

    but not as including a reference to:

    (d)taking an irrelevant consideration into account in the exercise of a power; or

    (e)failing to take a relevant consideration into account in the exercise of a power; or

    (f)an exercise of a discretionary power in bad faith; or

    (g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)."

    Background facts and the Tribunal's decisions

    Ms Yusuf

18. Ms Yusuf sought a protection visa on the basis that she was a refugee as defined in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together referred to as "the Convention")[11].  More particularly, she claimed she had a well-founded fear of persecution on the ground of race if returned to Somalia.

    [11]Article 1A(2) defines a refugee as any person who:

    "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

19. In support of her claim that she was a refugee as defined in the Convention, Ms Yusuf gave an account of her home in Mogadishu being invaded and of her husband being attacked by members of another clan, the Hawiye.  As a result, she claimed, her husband had to run away and she and her children were left behind.  She also claimed that, on two later occasions, she was attacked by members of the Hawiye clan when she left her home to go shopping.  On both occasions, she said, she was rescued by neighbours who were also members of the Hawiye clan.

20. In a supplementary statement, Ms Yusuf claimed that her sister and three of her sister's children had been killed by members of the Hawiye.  According to that statement, her sister's husband and one child survived and, in accordance with tradition, she was required to marry and, in fact, married her sister's husband.

21. The Tribunal rejected Ms Yusuf's claims with respect to her sister and her sister's children but accepted that she had twice been attacked by members of the Hawiye clan.  However, the Tribunal found that her clan membership was not the motive for those attacks.  In so finding, the Tribunal noted that there was advice from the Department of Foreign Affairs and Trade that the Abaskul clan, of which Ms Yusuf was a member, was not targetted by the Hawiye.  The Tribunal also noted that, on the occasions when she was attacked, Ms Yusuf had been rescued by members of the latter clan.

22. No finding was made by the Tribunal with respect to Ms Yusuf's claim that her home had been attacked and her husband forced to run away.  This notwithstanding, the Tribunal held that "neither [Ms Yusuf's] individual circumstances nor her membership of the Abaskul clan expose[d] her to a real chance of ... persecution" as required by the definition of "refugee" in the Convention.  Accordingly, Ms Yusuf was not entitled to a protection visa[12].

    [12]A criterion for the issue of a protection visa is that the Minister or his or her delegate is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention: the Act, ss 36(2) and 65; Migration Regulations 1994 (Cth), reg 2.03, Sched 2, cl 866.221.

    Mr Israelian

23. Mr Israelian's application for a protection visa was based on the claim that he feared persecution if returned to Armenia.  According to his application, that persecution would be the result of his failure to answer a call-up notice for military service.  He said that he failed to answer the call-up notice because of his conscientious objection to all war and, also, because of his objection to being involved in the Nagorno-Karabakh conflict.  Additionally, he did not respond to the call-up notice because, having married an Australian, he was then living in Australia and did not expect that he would have to return to Armenia.

24. In his submissions to the Tribunal, Mr Israelian contended that he was a refugee as defined in the Convention because his persecution would stem from his political opinions which both favoured Communism and opposed the Nagorno-Karabakh conflict and, also, from his membership of a particular social group comprised of "deserters and/or draft evaders".  In elaboration of that latter claim, Mr Israelian stated that he would be treated as a deserter, imprisoned and forced to serve at the front line.  Moreover, he said that his failure to answer his call-up notice would result in his being denied a passport with the consequence that he would not be able to work or obtain accommodation in Armenia.

25. The Tribunal found that Mr Israelian had "no genuine subjective fears [with respect to] his support of the Communist Party, other than his fears in respect to the war over [Nagorno-Karabakh]."  It also found that he was not opposed to all war and that his opposition to the war over Nagorno-Karabakh was not based on "ethical, moral or political grounds" but on "a desire to avoid personal danger".  The latter finding was made in a context in which there was material indicating that the United Nations High Commissioner for Refugees ("the High Commissioner") had issued an order to the effect that Armenian draft resisters should be given refugee status.  Further, the Tribunal concluded that, even if Mr Israelian were a conscientious objector, "his punishment for avoiding his call-up notice would not be motivated by a Convention reason but would be the application of a law of common application".

26. By reason of the findings set out above, the Tribunal concluded that Mr Israelian was not a refugee as defined in the Convention and, thus, not entitled to a protection visa.

    The Federal Court decisions

27. At first instance, it was held by the Federal Court (Finn J) that Ms Yusuf's claim that her home had been invaded and her husband forced to flee was a material question of fact upon which the Tribunal was required by s 430(1)(c) of the Act to make findings in the written statement setting out its decision. Because it had not, it was held pursuant to s 476(1)(a) that a procedure required by the Act in connection with the making of a decision had not been observed. Accordingly, the Tribunal's decision was set aside. As already mentioned, that decision was upheld by the Full Federal Court.

28. In the case of Mr Israelian, it was held by the Federal Court (R D Nicholson J), at first instance, that his application for review should be allowed and the Tribunal's decision set aside because the Tribunal failed to consider whether "the International Community through the [High Commissioner] had condemned the military action in [Nagorno-Karabakh] as contrary to basic rules of human conduct and whether [in] all the circumstances of the matter, deserters and/or draft evaders in Armenia were a particular social group; that is defined, united or linked otherwise than by the fear of the allegedly persecutory law."

29. Because of the Tribunal's failure to consider the matters set out above, it was held that "[its] decision [with respect to Mr Israelian] involved an error of law, being an error involving an incorrect interpretation of the applicable law." Further, it was held that that failure was a failure to set out findings on material questions of fact as required by s 430(1)(c) of the Act and, therefore, a failure to observe procedures required by the Act. That latter holding was affirmed by the Full Court. The Full Court had no reason to consider and, in fact, did not consider whether the decision also involved an error of law.

    Section 430 of the Act and procedures required by the Act

30. At the relevant time, s 430 of the Act was headed "Refugee Review Tribunal to record its decisions etc and to notify parties". Logically, the making of a decision and the recording of it are distinct steps. Were the ground of review allowed by s 476(1)(a) expressed in terms of procedures to be observed in the making of a decision, there might, perhaps, be some scope for an argument that it does not extend to procedures to be observed in recording a decision. However, the phrase used in s 476(1)(a) is "in connection with the making of the decision" – a phrase signifying a less precise connection than "in the making of the decision". Moreover, s 430 is not concerned solely with the recording of a decision. In terms, it is also concerned with the "prepar[ation of] a written statement that ... sets out the decision of the Tribunal".

31. Notwithstanding that the making of a decision and the recording of a decision are logically distinct steps, the making of a decision and the preparation of a written statement setting out that decision often constitute a single process. Given that that is so and given, also, that the expression used in s 476(1)(a) is "in connection with the making of [a] decision", there is no basis for reading s 476(1)(a) as not extending to the procedures required by s 430 of the Act. However, that is not, of itself, determinative of the question raised by the Minister's appeals: there remains a question as to the nature and extent of the procedure required by s 430(1)(c).

32. The issue of substance presented by the Minister's appeals is whether, properly construed, s 430(1)(c) of the Act requires the Tribunal to state its findings on what it considers to be material questions of fact or whether, as was contended for Ms Yusuf and Mr Israelian, it requires the Tribunal's written statement to conform to some objective standard to be ascertained by reference to the particular application and the material available to the Tribunal in relation to that application.

33. Clearly enough, pars (a) and (b) of s 430(1), which require the Tribunal to set out "the decision of the Tribunal" and "the reasons for [that] decision", refer, respectively, to the Tribunal's decision and the Tribunal's reasons for its decision. In that context and in the absence of any requirement that the Tribunal either identify the legal or factual issues presented by the application or specify the material before it, it is difficult to construe s 430(1)(c) as obliging the Tribunal to do more than set out its findings on what it considers to be material questions of fact.

34. Of more significance to the construction of s 430(1)(c) of the Act is the consideration that, in recording its decision, the Tribunal can only set out the findings which it makes. Conversely, findings which are not made cannot be set out. Once that is accepted, s 430(1)(c) must be construed as requiring the Tribunal only to set out its findings on what it considers material questions of fact.

35. The corollary to the construction of s 430(1)(c) of the Act set out above is that it is to be inferred from the absence of a reference to, or, a finding with respect to some particular matter that the Tribunal did not consider that matter to be material. As will later appear, there may be cases where that will indicate error of a kind that will ground review under s 476(1) of the Act or, even, jurisdictional error which will ground relief under s 75(v) of the Constitution. For the moment, however, it is sufficient to note that the failure of the Tribunal to make a finding with respect to a particular issue is not, of itself, a failure to observe procedures required by the Act. Thus, the Minister's appeals must succeed unless the orders of the Full Federal Court are to be upheld by reference to one or more of the grounds specified in the notices of contention filed on behalf of Ms Yusuf and Mr Israelian, respectively.

    Failure to make findings may be reviewable or jurisdictional error

36. The question whether the failure of the Tribunal to deal with some particular aspect of an applicant's claim reveals reviewable error for the purposes of s 476 of the Act necessitates immediate reference to s 476(3)(e). That paragraph limits the ground of review allowed to the Federal Court by s 476(1)(d) – improper exercise of power – so that it does not extend to the failure of the Tribunal to take a relevant consideration into account. However, no other ground of review is limited in that way.

37. As already indicated, if in its written statement setting out its decision, the Tribunal fails to refer to or fails to make findings with respect to a relevant matter, it is to be assumed, consistently with the clear directive in s 430 of the Act, that the Tribunal has not regarded that question as material. And depending on the matter in issue and the context in which it arises, that may or may not disclose reviewable error. For example, the failure to make a finding on a particular matter raised by the applicant may, in some cases, reveal an error of law for the purposes of s 476(1)(e) of the Act.

38. Moreover, as McHugh, Gummow and Hayne JJ point out in their judgment, an error of law which will ground review by the Federal Court under s 476(1)(e) of the Act may, in some cases, also have the consequence that there has been what is known in the jurisprudence relating to relief under s 75(v) of the Constitution as "jurisdictional error". If so, the failure to make a finding on the matter in issue may have the result that the decision is reviewable by the Federal Court either on the ground that the Tribunal lacked jurisdiction (s 476(1)(b)) or on the ground that its decision was not authorised by the Act (s 476(1)(c)). Clearly, that will be so if the error is such that the Tribunal exceeds its jurisdiction.

39. The terms of ss 476(1)(b) – "[no] jurisdiction to make the decision" – and (c) – "the decision was not authorised by [the] Act" – direct attention to errors which lead the Tribunal to exceed its jurisdiction. However, as I pointed out in Abebe v Commonwealth, the notion of jurisdictional error for the purposes of relief under s 75(v) of the Constitution "is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction" but extends to situations in which it "wrongly den[ies] the existence of its jurisdiction or ... mistakenly place[s] limits on its functions or powers"[13]. And in that case, I indicated that error of that kind was reviewable under s 75(v), although "not reviewable by the Federal Court in proceedings under Pt 8 of the Act"[14].

    [13](1999) 197 CLR 510 at 552 [107], [108].

    [14](1999) 197 CLR 510 at 552 [108].

40. The statement that errors involving the wrong denial of jurisdiction or the placing of limits on a tribunal's powers or functions are not reviewable under s 476(1) of the Act requires qualification. That is because notions that have been developed in relation to the grant of mandamus and prohibition, whether by way of prerogative relief or pursuant to s 75(v) of the Constitution, do not have precise equivalents in the scheme established by Pt 8 of the Act or, indeed, in other statutory schemes providing for judicial review of administrative decisions.

41. For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers.  If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction".  On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form[15].  A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account.  Equally, it may be disclosed by the failure to take a relevant matter into account.

    [15]See Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 per Jordan CJ. See also R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 267-268 per Aickin J; Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 350 per Wilson, Deane and Gaudron JJ; Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 143-144 per Brennan J; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1356 [31] per Gleeson CJ, Gaudron and Hayne JJ; 174 ALR 585 at 594-595.

42. Although the notion of constructive failure to exercise jurisdiction developed in relation to the grant of prerogative relief and, later, the grant of relief under s 75(v) of the Constitution, it is one that has some bearing on statutory schemes for judicial review of administrative decisions of the kind set out in Pt 8 of the Act. For example, it may be that the failure of the Tribunal to take a particular matter into account indicates that, in the circumstances, the Tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by s 414 of the Act[16].

    [16]Subject to exceptions not presently relevant, s 414(1) of the Act provides that "if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision."

43. The power of the Tribunal to affirm, vary or set aside a decision of the Minister or his or her delegate is a power which can only be exercised when it has conducted a review of the decision in question. So much follows from the direction in s 414(1) that, if a valid application is made, the Tribunal "must review the decision". So, too, it is to be discerned from s 430 which speaks of a "decision on a review". A decision made other than on review is not a decision authorised by the Act. So, too, a decision made other than on a review of the kind required by the Act is not a decision that is authorised by the Act.

44. It follows from what has been written above that the failure of the Tribunal to make findings with respect to a particular matter may, at the same time, reveal failure to exercise jurisdiction, whether actual or constructive, and, also, failure to conduct a review as required by the Act. And the latter constitutes reviewable error for the purposes of ss 476(1)(b) and (c) of the Act.

    Notices of contention

    Ms Yusuf

45. On behalf of Ms Yusuf, it was contended that the Minister's appeal should be dismissed and the Full Court decision upheld on the basis that, independently of s 430, the Tribunal's failure to make any finding with respect to the claimed attack on her home constitutes reviewable error for the purposes of ss 476(1)(a), (b), (c), (d) and/or (e) of the Act.

46. So far as concerns the contention that the Tribunal's decision is reviewable under s 476(1)(a), it was put that there was a failure to conduct a review as required by s 414 and, accordingly, a failure to observe procedures required by the Act. In my view, that contention must be rejected. The conduct of a review is no mere procedural requirement. It is the jurisdictional precondition to the exercise of the power to affirm, vary, or set aside the decision under review. If there was a failure to conduct a review as required by the Act, the resulting decision was not authorised by the Act and is reviewable under ss 476(1)(b) or (c), but not on the ground that "procedures ... were not observed".

47. Nor, in my view, can the decision of the Federal Court be upheld on the basis that the Tribunal's decision involves an error of law for the purposes of s 476(1)(e) of the Act. No such error is revealed. All that is revealed is that the Tribunal failed to take a particular matter into account, albeit that that matter was one of considerable relevance to Ms Yusuf's claim that she feared persecution if returned to Somalia. And because the failure to take a relevant matter into account is excluded from the ground of review allowed to the Federal Court by s 476(1)(d) – improper exercise of power – its decision cannot be upheld on that basis.

48. It is necessary now to consider whether the decision of the Full Federal Court should be upheld on the basis either that the Tribunal did not have jurisdiction (s 476(1)(b)) or that its decision was not authorised by the Act (s 476(1)(c)). In this regard it is to be noted that, relevantly, the Tribunal's jurisdiction is to review the decision of the Minister or his or her delegate refusing a protection visa. Correspondingly, the Tribunal has a duty to review the decision in question, as is made clear by the direction in s 414(1) of the Act that "the Tribunal must review the decision" if a valid application is made for review.

49. Clearly, a decision can only be reviewed if regard is had to such of the material that was available to the primary decision-maker as might be decisive of the outcome of the application.  Ms Yusuf's claim that her house had been invaded was, in my view, material of that kind.

50. Ms Yusuf's claim that she had a well-founded fear of persecution was made by reference to events involving herself and her family which were capable of being found to constitute past persecution[17].  She claimed to be directly involved in three of those events.  Any one of the events in which she claimed to be involved was capable of being regarded by the Tribunal as having given rise to a well-founded fear of persecution for reasons of race.  To find that two only of those events were not racially motivated, was to leave unresolved an aspect of her claim which could have affected its outcome.  More precisely, it was to leave an aspect of the delegate's decision unreviewed.

    [17]As to the relevance of past events to which a person has been subjected, see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 387 per Mason CJ; Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 74 ALJR 1556 at 1570 [83] per McHugh J; 175 ALR 585 at 604; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [66]-[68] per Gaudron J.

51. The failure of the Tribunal to make findings with respect to Ms Yusuf's claim that her home was attacked by members of the Hawiye clan has the consequences that the Tribunal lacked jurisdiction to affirm the earlier decision of the Minister's delegate and, also, that its decision was not authorised by the Act.

    Mr Israelian

52. It was contended on behalf of Mr Israelian that the failure of the Tribunal to deal with his claim that he feared persecution by reason of his membership of a social group comprised of deserters and/or draft evaders reveals an error of law for the purposes of s 476(1)(e) of the Act. It was further contended that the decision of the Tribunal was not authorised by the Act and, also, that it was made without jurisdiction.

53. The contentions advanced on behalf of Mr Israelian were advanced solely by reference to the Tribunal's failure to deal with the question whether Mr Israelian was a member of a particular social group comprised of deserters and/or draft resisters.  No argument was addressed to the material suggesting that the High Commissioner had condemned the military action in Nagorno-Karabakh, a matter that R D Nicholson J thought should have been considered by the Tribunal.

54. Although it is not strictly necessary to deal with the issue, it may be noted that, in my view, the Tribunal's finding that Mr Israelian's opposition to military service was not based on "ethical, moral or political grounds" rendered any further question with respect to the Nagorno-Karabakh conflict irrelevant. That being so, failure to consider the nature of the Nagorno-Karabakh conflict reveals no reviewable error for the purposes of s 476(1) of the Act.

55. Nor, in my view, does the failure of the Tribunal to make a finding as to whether or not Mr Israelian was a member of a particular social group comprised of deserters and/or draft resisters reveal reviewable error for the purposes of s 476(1) of the Act. The Tribunal's conclusion that the punishment Mr Israelian would face "for avoiding his call-up notice ... would be the application of a law of common application" necessarily involves the consequence that that punishment would not be discriminatory and, hence, would not constitute persecution[18].  In that context, the question of Mr Israelian's membership of a particular social group comprised of deserters and/or draft resisters became irrelevant.

    [18]See as to the need for persecution to involve discriminatory conduct, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 per Mason CJ, 429-430 per McHugh J; Minister for Immigration and Ethnic Affairsv Guo (1997) 191 CLR 559 at 570 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

    Relief under s 75(v) of the Constitution

56. In the case of Ms Yusuf, the Minister's appeal must be dismissed. Accordingly, consideration of her claim for relief under s 75(v) of the Constitution is unnecessary. In the case of Mr Israelian, the considerations which lead to the conclusion that the Tribunal's decision does not disclose reviewable error for the purposes of s 476(1) of the Act also have the consequence that it does not involve jurisdictional error for the purposes of s 75(v) of the Constitution.

    Orders

57. Ms Yusuf

    1.        The appeal should be dismissed with costs.

    2.The application for relief under s 75(v) of the Constitution should be dismissed. There should be no order as to costs.

58. Mr Israelian

    1.The appeal should be allowed.  The orders of the Full Federal Court, other than with respect to costs, should be set aside.  In lieu, the appeal to that Court should be allowed and the orders of R D Nicholson J set aside, other than with respect to costs, and Mr Israelian's application to the Federal Court dismissed.

    2.The application for relief under s 75(v) of the Constitution should be dismissed. There should be no order as to costs.

59. McHUGH, GUMMOW AND HAYNE JJ.   The facts and circumstances which give rise to the present proceedings, and the relevant statutory provisions, are set out in the reasons for judgment of Callinan J.  We do not repeat them except to the extent that is necessary to explain the reasons for the conclusions we have reached.

60. The central questions in the proceedings were said to be whether the Refugee Review Tribunal was obliged to make findings on material questions of fact and, if the Tribunal was obliged to do so, whether failure to make such findings was a ground for review by the Federal Court of Australia under s 476 of the Migration Act 1958 (Cth) ("the Act") or was a ground upon which this Court might grant relief under s 75(v) of the Constitution.

61. The formulation of the first of these questions, and its references to "obligation" and to "material" questions of fact, stemmed from a series of decisions of the Federal Court about the operation of ss 430 and 476(1)(a) of the Act[19] which culminated in the decision of the Full Court of the Federal Court (constituted as a bench of five members of the Court) in Minister for Immigration and Multicultural Affairs v Singh[20].  Although Singh was decided after the Full Court made the decisions under appeal in the present matters[21], it is convenient to use the decision in Singh to identify why this first question was formulated as it was.

    [19]Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182; Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811; cf Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940; Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379; Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; Doss v Minister for Immigration and Multicultural Affairs [1999] FCA 1780.

    [20](2000) 98 FCR 469.

    [21]Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506; Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649.

    A "duty" to make findings

62. In Singh, four members of the Full Court (Black CJ, Sundberg, Katz and Hely JJ) concluded[22] that s 430 of the Act "calls for a recording of matters that are essentially matters of fact, namely the decision to which the [Tribunal] came, the actual reasons for coming to that decision, the findings of fact that were actually made and the material on which those findings were based". To this general proposition, however, their Honours added a qualification[23]: that "[i]f the [Tribunal] fails to make a finding on a fact which is in truth … a material fact, then s 430(1)(c) will not have been complied with, even though the [Tribunal] has recorded its findings in relation to the facts before it that it regarded as material." This, so their Honours concluded[24], is because "the [Tribunal] is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make".

    [22](2000) 98 FCR 469 at 480 [44].

    [23](2000) 98 FCR 469 at 481 [47].

    [24](2000) 98 FCR 469 at 481 [48].

63. It is appropriate for a court to speak of a decision‑maker being "obliged", or having a "duty", to make findings of fact only if that obligation or duty can be enforced in the courts.  It is necessary, therefore, to examine the content of the asserted duty and to consider whether established processes of judicial review of administrative action provide a remedy to persons affected by a decision if there has not been a finding on a material matter of fact.  That examination must begin from the premise that "[t]o expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision‑making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government."[25]

    [25]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341 per Mason CJ.

64. Two features of the asserted duty to make findings may be noticed.  First, the duty is said to relate to the decision which the Tribunal is required to make rather than to the decision the Tribunal actually made.  It is, therefore, a duty whose content is to be measured against what the decision‑maker was statutorily obliged to do in the particular case.  The inquiry focuses upon what should have been done, not on what was done.  The findings to which attention is directed are those that ought to have been made.  That might be thought to go so far as allowing or requiring inquiry about not only the process of proper decision‑making, but also the correctness of what was decided.

65. Secondly, the facts about which findings must be made are said to be those which, on later judicial inquiry, are found to be objectively material, not those which the Tribunal considered to be material.  It follows that inquiring whether the duty has been performed would require examination of the whole of the Tribunal's fact‑finding process.  The function of fact‑finding would no longer be left to the Tribunal.  Moreover, as the course of decisions in the Federal Court shows, the reference to "objectively material" facts is not without difficulties.  Does it, as the Full Court of the Federal Court held in Xu v Minister for Immigration and Multicultural Affairs[26], require the making of findings on ultimate facts rather than primary facts? Is materiality to be determined by reference to the facts on which the Act expressly or impliedly requires the decision‑maker to make findings? Or is it, as the Full Court held in Singh[27], to be determined by reference to the way in which the Tribunal in fact approached the case?  The wider the definition of "material", the wider the inquiry that must be made into the Tribunal's fact‑finding.

    [26](1999) 95 FCR 425.

    [27](2000) 98 FCR 469 at 482 [54].

66. It is necessary to begin consideration of whether there is a duty of the kind suggested by examining s 430. Only that section deals expressly with findings of fact by the Tribunal. Further, in the various decisions we have mentioned, the Federal Court identified only this section as the source of the duty. Counsel for Mr Israelian relied upon the reasoning adopted in those decisions.

67. Section 430(1) of the Act obliged the Tribunal to prepare a written statement that does four things:

    "(a)sets out the decision of the Tribunal on the review; and

    (b)sets out the reasons for the decision; and

    (c)sets out the findings on any material questions of fact; and

    (d)refers to the evidence or any other material on which the findings of fact were based."

    As was rightly observed in the joint judgment in Singh[28], this section calls for a recording of matters that are matters of fact. In particular, s 430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?

    [28](2000) 98 FCR 469 at 480 [44].

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[29] 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.

    [29](2000) 98 FCR 469 at 481 [47]-[48].

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[30]. 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[31].  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[32].

    [30]Repatriation Commission v O'Brien (1985) 155 CLR 422 at 446 per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348‑349 per Deane J, 353 per Fisher J; cf Fleming v The Queen (1998) 197 CLR 250 at 262‑263 [28]‑[29].

    [31]Craig v South Australia (1995) 184 CLR 163 at 179.

    [32]Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24.

    The "duty" to make findings and traditional grounds of review

70. Counsel for Ms Yusuf submitted that the Tribunal's duty to make findings of fact arose not just from s 430, but from a consideration of the structure of the Act taken as a whole, including the role of the Tribunal and the task it performs in reviewing decisions by the Minister. Section 47 requires the Minister (whose powers may be delegated by writing under s 496) to consider a valid application for a visa, including a protection visa, a class of visa established by s 36. Section 54 obliges the Minister to have regard to all the information in the application. After considering the application, the Minister is required by s 65 to grant or refuse the visa.

71. The task of the Tribunal is to review the decisions of the Minister, or a delegate of the Minister, to refuse to grant a protection visa under s 36 of the Act[33]. In carrying out that task, the Tribunal may exercise all the powers and discretions that are conferred by the Act on the person who made the decision[34].  It may affirm the decision or set it aside and substitute a new decision[35] and, if it takes the latter course, the decision is taken to be a decision of the Minister[36]. As the Act stood at the relevant time, the Tribunal was obliged to conduct its review in accordance with Div 4 of Pt 7 of the Act and unless it was prepared to make the decision on the review that was most favourable to the applicant[37] it was obliged to give the applicant an opportunity to appear before it to give evidence[38] and to give the applicant notice that he or she could ask the Tribunal to obtain oral evidence from others[39].

    [33]A decision which s 411(1)(c) provides is an "RRT‑reviewable decision".

    [34]s 415(1).

    [35]s 415(2)(a) and (d).

    [36]s 415(3).

    [37]s 424(1).

    [38]s 425(1)(a).

    [39]s 426(1)(b), (2) and (3).

72. In interpreting these provisions collectively as imposing an obligation on the Tribunal to make findings, counsel for Ms Yusuf relied upon Minister for Immigration and Ethnic Affairs v Guo[40] and what was said about the significance that consideration of past events may have for determining whether future persecution is likely.  In particular, he referred to the statement in the joint judgment that "[i]n the course of determining whether there was a real chance of persecution … the Tribunal made findings about past events … as it was entitled and, indeed, bound to do"[41].  This, so it was submitted, was consistent only with the Tribunal having a duty of the kind alleged.

    [40](1997) 191 CLR 559.

    [41](1997) 191 CLR 559 at 574 (emphasis added).

73. It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well‑known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider[42].  In that regard it is important to recall, as Brennan J said in Attorney‑General (NSW) v Quin[43]:

    "The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison[44]:  'It is, emphatically, the province and duty of the judicial department to say what the law is.'  The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

    [42]Abebe v Commonwealth (1999) 197 CLR 510 at 579 [195] per Gummow and Hayne JJ.

    [43](1990) 170 CLR 1 at 35‑36.

    [44](1803) 1 Cranch 137 at 177 [5 US 87 at 111].

74. This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration.  It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision‑making relevant considerations for the decision‑maker.  What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision‑maker has properly applied the law.  They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision‑maker acts.

75. As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution.  In Minister for Immigration and Ethnic Affairs v Guo[45], six members of the Court said:

    "In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."

    If the Tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error.  The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well‑founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past)[46].  It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well‑established limits.  If it is not intended to have that effect, it is not useful to formulate the duty in that way.  Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations.

    [45](1997) 191 CLR 559 at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

    [46]O'Brien (1985) 155 CLR 422 at 446 per Brennan J; Sullivan (1978) 20 ALR 323 at 348‑349 per Deane J, 353 per Fisher J.

    Judicial review under Pt 8 of the Act

76. Framing the inquiry in these terms presents some further questions about the operation of those provisions of the Act that deal with review of decisions of the Tribunal by the Federal Court. The various provisions of s 476 enumerate the grounds on which judicial review of Tribunal decisions may be sought. The section does so in a way that, at least at first sight, allows more limited grounds than the grounds on which judicial review may ordinarily be sought.

77. The Federal Court granted review in these cases on the basis that, by reason of the Tribunal's failure to make findings, the Tribunal had failed to comply with "procedures that were required by this Act or the regulations to be observed in connection with the making of the decision"[47]. It is implicit in what has already been said about s 430 that a complaint that the Tribunal has not made a finding of fact on a material question cannot support review on this ground. An alleged failure to make a finding of fact on a material question is not a failure to observe a "procedure … required" by the Act. If it is an error, it is an error of substance. Moreover, it may greatly be doubted that an obligation to set out findings could be said to be a procedure which is to be observed in connection with the making of the decision in question, as the setting out of the decision and reasons assumes that the decision has already been made. It is, however, enough to say that the conclusion that, so far as now relevant, s 430 requires only the recording of what was found and does not impose any duty to make findings, means that an asserted failure to make findings is not a breach of s 430. Accordingly, s 476(1)(a) is inapplicable.

    [47]s 476(1)(a).

78. That is not to say that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact. For the reasons stated earlier, a complaint of that kind will often amount to a complaint of error of law or of failure to take account of relevant considerations. It is necessary, therefore, to consider some further aspects of s 476, especially s 476(1)(b), (c) and (e) and s 476(3)(d) and (e). Counsel for Ms Yusuf, in the alternative to par (a) upon which the Full Court had based its decision, relied upon one or more of pars (b), (c) and (e) of s 476(1).

79. Paragraphs (b), (c) and (e) of s 476(1) give as grounds for review by the Federal Court of a decision of the Tribunal:

    "(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

    (c)that the decision was not authorised by this Act or the regulations;

    …

    (e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision".

    Before considering these grounds, it is necessary to notice the other provisions in s 476, especially sub‑ss (2), (3) and (4). Section 476(2) excludes grounds of breach of natural justice and unreasonable exercise of power from the grounds for review available in the Federal Court. That sub‑section is cast in general terms and is, therefore, to be read as qualifying the whole of s 476(1).

80. By contrast, the limitations set out in s 476(3) and (4) have more limited operation. Section 476(3) limits the construction of the reference in s 476(1)(d) to improper exercise of power by excluding questions of relevant and irrelevant considerations from the ambit of that ground. That qualification does not apply, however, to the other paragraphs of s 476(1) and it casts no light on how those paragraphs should be understood. Similarly, s 476(4) has no relationship with s 476(1)(b), (c) and (e). Sub‑section (4) qualifies the "no evidence" ground of review in s 476(1)(g) by limiting its operation to cases in which the decision‑maker was required by law to reach a decision only if a particular matter was established, and there was no evidence or other material from which the person could reasonably be satisfied that the matter was established[48] or if the decision‑maker based the decision on the existence of a fact which did not exist[49]. Again, this casts no light on how pars (b), (c) and (e) of s 476(1) should be understood.

    [48]s 476(4)(a).

    [49]s 476(4)(b).

81. The Minister submitted that the use of overarching concepts, such as "jurisdictional error", is inconsistent with a statutory scheme which enumerates both specific grounds of review that are available in the Federal Court, and others that are not. It was therefore submitted, for example, that par (b) of s 476(1), which speaks of "the person" who purported to make the decision not having "jurisdiction" to make the decision, extended only to matters in which the Tribunal, or the person who constituted the Tribunal, was not properly authorised to make the decision (because, for example, the Tribunal was not constituted in a proper way).

82. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision‑maker making such an error.  As was said in Craig v South Australia[50], if an administrative tribunal (like the Tribunal)

    "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

    "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive[51]. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law[52].

    [50](1995) 184 CLR 163 at 179.

    [51]cf Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52; 176 ALR 219.

    [52]Craig (1995) 184 CLR 163 at 179.

83. No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

84. Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.

85. Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s 75(v).

86. We turn then to consider the particular complaints made in the present matters.

    Yusuf

87. The essence of Ms Yusuf's complaint was that the Tribunal made no finding about whether one of the three principal incidents upon which she relied as revealing past acts of persecution was capable of giving rise to a well‑founded fear of persecution. She had said that there was an invasion of her house by members of the Hawiye clan during which her husband (and perhaps, she) had been attacked and her husband had been obliged to flee. The Tribunal mentioned an attack on Ms Yusuf's husband in its s 430 statement but did not, in terms, describe a house invasion.

88. The house invasion was said by Ms Yusuf to be an important incident demonstrating that she had a well‑founded fear of persecution for a Convention reason – membership of the particular race or social group constituted by her Abaskul clan.  In her evidence to the Tribunal Ms Yusuf also spoke of two other incidents.  In this Court it was submitted that the Tribunal had dealt with those two other incidents but that it had not dealt with the house invasion.

89. For the reasons given earlier, even if it were said that whether this invasion occurred in the manner, and with the consequences, described by Ms Yusuf was a material question of fact, a failure to make a finding about it would not amount to a breach of s 430, for the house invasion was not material to the decision the Tribunal actually made. Nor, in the particular circumstances of this case, does any failure by the Tribunal to make a finding about this matter in its s 430 statement reveal any error of law by the Tribunal or any failure to take account of a relevant consideration.

90. In its "Discussion of Evidence and Findings" the Tribunal began by saying:

    "The Tribunal accepts that the applicant has twice been attacked since the outbreak in 1991 of the civil war in Somalia and that she identified her attackers as being of the Hawiye clan.  It notes that the two attacks occurred some time ago and that on each occasion she was assisted by other members of the Hawiye clan."

    On its face this amounts to a finding that the Tribunal was persuaded that there had only been two attacks and was not persuaded that there had been more.  That view is reinforced by the Tribunal's later reference to "the two isolated occasions the applicant encountered problems" and its reference to her having "twice [come] under attack".

91. Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well‑founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan.  This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion.  That being so, it is not demonstrated that the Tribunal made some error of law.  It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.

92. The highest point Ms Yusuf's contention reaches, if it is accepted that there were three attacks, is that the Tribunal made an error of fact in concluding, as it did, that there were only two. That does not establish any of the grounds in s 476 or any other ground for judicial review. It follows that the Minister's appeal should be allowed, the orders of the Full Court of the Federal Court save as to costs be set aside, the appeal to that Court allowed and in lieu the application for review dismissed. Ms Yusuf's application for order nisi should be dismissed. Consistent with the terms on which special leave was granted, the Minister should pay the respondent's costs of the appeal and the orders as to costs made in the courts below should not be disturbed. There should be no order as to the costs of the application for order nisi.

    Israelian

93. Mr Israelian contended that the Tribunal failed to make a finding about one of the two bases upon which he claimed to have a well‑founded fear of persecution.  He claimed that he was a refugee both because of his political opinions (being his conscientious objection to military service in connection with a particular territorial dispute between Armenia and Azerbaijan) and because of his membership of a particular social group (being deserters or draft evaders).

94. The Tribunal found that if, on his return to Armenia, Mr Israelian was punished for not meeting his obligation to give military service it would be "the application of a law of common application, imposed by the authorities regardless of … any political opinion".  This, in the opinion of the Tribunal, did not constitute persecution[53]. The Tribunal framed its discussion of the issues in its s 430 statement in terms of Mr Israelian's claim to be a "conscientious objector" and concluded that his expressed views "do not disclose genuine convictions based on ethical, moral or political grounds". It did not, in its reasons, refer expressly to his alleged membership of a social group (being that of deserters or draft evaders) although it expressed its conclusion about unwanted consequences that might happen to him on his return as punishment which "would not be motivated by Convention reasons".

    [53]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 74 ALJR 775; 170 ALR 553.

95. The failure to refer to one of the alternative bases on which an applicant for a protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s 476(1)(b), (c) and (e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection.

96. This was said to be such a case.  It was submitted on behalf of the Minister that the finding that Mr Israelian was not a conscientious objector inevitably denied both the holding of a relevant political opinion and the membership of a relevant social group.  We do not accept that this is such a case.  The social group identified by Mr Israelian was defined by reference to the fact of avoidance of military service, not the reasons for that avoidance.  It follows that the finding of fact that was made by the Tribunal did not conclude the issues raised by Mr Israelian's alternative claim.

97. Nevertheless, it must be recalled that the Tribunal did not base its conclusion affirming the decision to refuse Mr Israelian a protection visa only on its finding about conscientious objection. It concluded that there would not be persecution of Mr Israelian if he returned to his country of nationality, only the possible application of a law of general application. The Tribunal is not shown to have made an error of law in that respect. Moreover, the evidence to which counsel for Mr Israelian pointed as suggesting that the sanctions imposed on Mr Israelian would go beyond the application of the general law related to deserters, not draft evaders. It was not demonstrated that those groups formed part of a single "social group" within the meaning of the Convention definition. That being so, no relief under Pt 8 of the Act or under s 75(v) should go. Special leave having been granted on the same terms as were imposed in the matter concerning Ms Yusuf, there should be orders allowing the Minister's appeal, setting aside the orders of the Full Court of the Federal Court save as to costs and in lieu ordering that the appeal to that Court be allowed, the orders of the trial judge save as to costs set aside and in lieu ordering that the application for review be dismissed. The application for order nisi should be dismissed with no order as to costs.

98. KIRBY J. These proceedings concern the obligation of the Refugee Review Tribunal ("the Tribunal")[54], pursuant to s 430(1) of the Migration Act 1958 (Cth) ("the Act"), to prepare a written statement setting out its decision, reasons, findings on material questions of fact and reference to the evidence when disposing of an application for a protection visa under the Act.

    [54]Established by the Migration Act 1958 (Cth), s 457.

99. The central question for decision concerns the scope of the Tribunal's obligation under s 430(1). A second question is whether a failure to meet the requirements of s 430 is reviewable by the Federal Court, having regard to that Court's narrowed jurisdiction[55]. If judicial review is available, a further question arises as to the remedies appropriate to the case under s 481 of the Act.

    [55]The Act, ss 475, 476 and 485; see Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 476 [22] ("Singh"). 

100. In approaching these questions, which have been answered in different ways by majority[56] and minority[57] decisions of the Full Court of the Federal Court, I remind myself of the remarks of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu[58]. His Honour observed that the requirement in s 430(1) for the Tribunal to "prepare a written statement dealing with certain matters … thereby furthers the objectives of reasoned decision‑making and the strengthening of public confidence in that process". But it does not "provide the foundation for a merits review of the fact‑finding processes of the Tribunal".

     [56]Reasons of Black CJ, Sundberg, Katz and Hely JJ in Singh (2000) 98 FCR 469 and the contrary opinion of Whitlam and Gyles JJ in Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425 ("Xu").

     [57]R D Nicholson J, who was the third member of the Full Court in Xu, did not consider that it was necessary to determine the point.

     [58](1999) 197 CLR 611 at 646 [117] ("Eshetu").

101. This Court is obliged to resolve the differences that have emerged in the Federal Court. The resolution lies in elucidating the meaning of the Act and in reconciling the achievement of the objectives mentioned by Gummow J in a way that avoids the risk of error to which he drew attention.

     The facts, course of proceedings and legislation

217. I agree with their Honours' analysis and conclusion, a conclusion which is, in my opinion strengthened by the statutory indications pointing in that direction and to which I have earlier referred.  Finn J and the Full Court thought the assault upon the husband was a material fact.  The earlier decision-maker, the Tribunal, did not.  That may be taken to be so because the Tribunal did not regard it as necessary to make a finding on it.  It could hardly have been overlooked because the Tribunal had earlier made an express reference to it.  The Tribunal was entitled neither to regard it, nor treat it as material to its decision.  That was a position that was open to the Tribunal, and, even if a review were available on such a ground, the Federal Court as the reviewing court would not have been justified in merely substituting its own opinion as to its materiality for that of the Tribunal.  The important matters for the Tribunal were that the respondent's attacks were made by members of the same clan as those who assisted her afterwards, and that the respondent's Abaskul clan was not targeted in the attacks by members of the Hawiye clan:  therefore the attacks were not racially motivated.  Hence the fact of the attack upon the husband was not a material fact, a conclusion with which I would agree.

218. I should make it clear, however, that the conclusion that I have reached depends in part at least upon the statutory context in which s 430 is found, and certainly does not foreclose debate about s 25D of the Acts Interpretation Act 1901 (Cth) and similar provisions in other statutes.

219. I would mention one other matter.  In Minister for Immigration and Multicultural Affairs v Ibrahim[200], this Court warned against the distractions (from the task of applying the Convention) of applying, to conditions which were accepted in that case as existing in Somalia then, the description of civil war.  Similar sorts of conditions were described in this case, similarly loosely, as civil war.  Whether in these circumstances conditions of a civil war exist, or whether persons caught up in those circumstances are capable on that account of being regarded as being persecuted on grounds of race may be questionable.  However, it is unnecessary to say any more about these matters because I am satisfied there was no failure, for the reasons I have stated, and applying also the tests proposed by Whitlam and Gyles JJ in Xu, and Kiefel J in Singh, which I would adopt, to find a material fact.

     [200](2000) 74 ALJR 1556 at 1583-1584 [144]-[147] per Gummow J; 175 ALR 585 at 623-624. See also 74 ALJR 1556 at 1596-1597 [205]-[206] per Hayne J, 1598-1599 [214], 1600 [219], 1600-1601 [224]-[228] per Callinan J; 175 ALR 585 at 641-642, 644, 646, 647-648.

220. I would therefore allow the appeal by the Minister.         

221. The reasons I have given also mean that the application for prerogative relief should be refused. There is no basis upon which that relief could be granted. The Tribunal made no errors of law whether on the face of the record or otherwise, it did not fail in any way to accord natural justice to the respondent, and there was no failure to exercise the jurisdiction conferred upon it. It may be that a failure to give reasons sufficient to allow a court to decide whether the decision is judicially reviewable, or the giving of manifestly deficient reasons in other respects might provide a ground for prerogative relief just as it might ground relief under s 481(2) of the Act but it is unnecessary to state any concluded opinion on this.

     Orders

222. I would allow the Minister's appeal and dismiss the respondent's application for prerogative relief. 

223. Consistent with the conditions upon which special leave to appeal to this Court was granted, I would not disturb any orders as to costs which have been made in the courts below and I would order that the Minister pays the respondent's costs of the appeal.

     ISRAELIAN

224. This case raises the same questions as arise in Yusuf as to the meaning and application of ss 430 and 476 of the Migration Act 1958 (Cth) ("the Act").

     Case history

225. Mr Israelian came to Australia from Armenia on 8 September 1992.  He made application for a protection visa to the Department of Immigration and Multicultural Affairs on 29 October 1993.  The application was refused on 6 May 1994.  The decision to refuse him the visa sought was affirmed by the Refugee Review Tribunal ("the Tribunal") on 23 March 1995. 

226. The respondent told the Tribunal that he had been called up for military service in January 1993 while he was out of the country.  He said that, because of his absence from his country at the time of his call-up, he would be treated on his return as a deserter and forced to serve in the military at the front line.  Another reason why that would be his fate, was that he was an active supporter of the Communist party in Armenia.  He said the position would be different if he had formally migrated from Armenia, instead of failing to return to his country of birth. 

227. Armenia has been in conflict with Azerbaijan over the area of Nagorno-Karabakh.  The respondent is not opposed to all wars but has a particular objection to that conflict.  It was, he said, a futile war.  There is no resolution in sight to it unless the ethnic Armenians withdraw from Nagorno-Karabakh and relocate to Armenia.  The respondent is unwilling to fight former comrades who had served with him in what was formerly the Soviet Army, in which he has already served.  As a conscript he would, he said, be sent to the front and he certainly does not want to be killed in a pointless war.  He claimed that the war has been condemned by the international community.  And he is opposed to a war that resorts to ethnic cleansing, which he alleges this one to be. 

228. The Tribunal concluded that the respondent's claims that there was a real chance that he would be persecuted upon his return to Armenia, for a reason relevant to the Convention relating to the Status of Refugees of 28 July 1951 ("the Convention"), could not be sustained.

229. The respondent sought review of the Tribunal's decision by the Federal Court of Australia. His application was heard by R D Nicholson J. His Honour said that it was arguable that deserters or draft evaders might be regarded as a particular social group. He was of the opinion that a factual finding whether that was so or not, should have been made by the Tribunal. Membership of that group, if it were a social group within the meaning of the Convention, might give rise to a well-founded fear of persecution. It followed, his Honour held, that there had been a failure to make a finding as to a material fact as required by s 430 of the Act.

230. According to his Honour that was not, however, the only material fact in respect of which a finding should have been made.  His Honour said that there was evidence before the Tribunal of a German press report that the United Nations High Commissioner for Refugees had issued an order to the effect that Armenian draft resisters should be given refugee status.  If, his Honour said, that be factually correct, it might amount to a condemnation by the international community of the military actions in Nagorno-Karabakh as being contrary to basic rules of human conduct, and hence in this particular case the punishment for desertion or draft evasion could amount to persecution of the respondent as a member of a particular social group.  In the result his Honour allowed the application for review, and ordered that the Tribunal's decisions be set aside and that the matter be remitted to the Tribunal to determine whether the respondent had a well-founded fear of being persecuted by reason of membership of a particular social group.

231. The appellant appealed to the Full Court of the Federal Court[201] (Einfeld and North JJ, Emmett J dissenting).  In that Court, the majority took the view that the Tribunal dealt only with the respondent's fear of persecution by reason of his membership of a social group consisting of conscientious objectors and failed to consider whether he feared persecution by reason of his membership of a social group comprising deserters and draft evaders or either of them.  The Full Court said that references to the respondent's claims generally, the holding by the Tribunal that these were not Convention related, and that any punishment would not be motivated by Convention reasons were formulaic only, and did not grapple with the respondent's arguments on the basis of them.  As in Yusuf the Full Court held that there had been a failure to comply with s 430(1)(c) of the Act. Their Honours in the majority also held that here there had been a failure to comply with s 430(1)(b) and (d) which require the Tribunal, respectively, to set out its reasons for a decision, and to refer to the evidence, or any other material on which the findings of fact are based. As in the case of Yusuf, the Full Court held that those failures gave rise to a right of review under s 476(1)(a) of the Act. The appellant's appeal was accordingly dismissed.

     [201][1999] FCA 649.

     The appeal to this Court

232. The appellant appeals to this Court on the grounds that the Full Court erred by:

     (a)affirming R D Nicholson J's judgment allowing the respondent's application for review of the decision of the Tribunal; and

     (b)finding that a failure of the Tribunal to comply with s 430(1)(b), (c) and (d) of the Act was a failure to observe procedures required by the Act to be observed in connexion with the making of the decision and hence gave rise to a right of review under s 476(1)(a) of the Act; and

     (c)holding that there was a failure by the Tribunal to comply with s 430(1)(b), (c) and (d) of the Act.

233. The respondent sought prerogative relief pursuant to s 75 of the Constitution in the event that the appellant's appeal were to succeed.

234. What I have said in relation to the appellant's appeal in Yusuf with respect to ss 430(1)(c) and 476 of the Act applies with equal force to this case. Simply because the Tribunal did not expand at length upon all of the claims made by the respondent does not mean that the Tribunal was obliged or failed to make factual findings in respect of them. The Tribunal fully appreciated that the respondent was making a number of claims and expressly held that none of his claims provided reason, within the meaning of the Convention to regard him as having a well-founded fear of persecution. Neither in the sense in which the phrase "material questions of fact" as used in the Act in s 430(1)(c) is to be understood, nor in the sense in which a question of fact is to be conventionally understood apart from statute, did the Tribunal fail to make a relevant finding, or act in such a way as to entitle the Federal Court to review the Tribunal's decision pursuant to s 476 of the Act.

235. However, additional errors were held by the Full Court to have been made by the Tribunal, being failures to set out reasons for the decision, and to refer to the evidence upon which the findings of fact were based. The failure to set out the reasons is said to be a failure to provide a reason for the rejection of an important argument by the respondent, that deserters and draft evaders were capable of constituting a social group within the meaning of the Convention. But that is, really, just another way of saying that the Tribunal failed to set out findings on a material question of fact, a view which, in my opinion, is unsustainable for the reasons I have stated. But in any event "reasons for the decision" as referred to in s 430(1)(b) do not mean reasons in detail with respect to each and every argument advanced by an applicant. "Reasons" mean reasons why the Tribunal considers that the application should be dismissed. And so long as the reasons given are sufficient for that purpose, the requirements of s 430 are satisfied. Nor was there any failure to refer to the evidence or any other material upon which the decision was based. There was no basis upon which the Tribunal's reasons could be properly characterized as formulaic. The reasons were adequate in all respects. But in any event, a failure to give reasons, or to refer to some evidence or material upon which the decision is based, would not give rise to a right of review under s 476(1)(a) any more than a failure to make a finding on a material question of fact would. These, in short, are not failures to observe procedures required by the Act.

236. A tribunal such as the Refugee Review Tribunal is not obliged to pursue every snippet of information which comes to its attention.  It is certainly not obliged to follow up a second hand reference to a mere press report of a purported statement of an official, however senior, of the United Nations.  There was no need for the Tribunal to refer to that piece of material or to pursue enquiries in respect of it, as R D Nicholson J and the majority of the Full Court held it should.  And, as will appear, such a pursuit would, in any event, have been an unrewarding one.

237. The reference to the press report was made in a Human Rights Watch World Report, published in 1995, in these terms:

     "According to a report in the influential German daily Sueddeutsche Zeitung, the United Nations High Commissioner for Refugees issued an order by which Armenian draft resisters should be given refugee status."

238. A reference to a report in a newspaper, neither confirmed nor otherwise verified, and not reproduced, either in the original, or in translation, and purporting to say something itself neither reproduced nor verified, and claimed to have been promulgated by one official only, no matter how senior, could not be binding on the Tribunal, assuming it did exist, and could not answer the description of a material question of fact. 

239. While it may be accepted that the role of the United Nations High Commissioner for Refugees is an important one, the Commissioner does not have the authority to make "orders".  He or she has no power to define, or define finally, the status of refugees.  In short, no search, no matter how prolonged or exhaustive, could have unearthed a relevant "order" of the High Commissioner. 

240. The preamble to the Convention refers to the High Commissioner in this way:

     "NOTING that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner".

241. Article 35 in Ch VI of the Convention refers to the obligations of the subscribing countries to the Convention:

     "1The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.

     2In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:

     (a)      the condition of refugees,

     (b) the implementation of this Convention, and

     (c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees."

242. Article 1 of the Convention, which defines "refugee", does not purport to confer upon the Commissioner any power or jurisdiction, to declare or order, let alone conclusively so, a particular group or class of persons to be refugees.

243. The Statute of the Office of the United Nations High Commissioner for Refugees, as adopted by resolution 428(V) of the United Nations General Assembly on 14 December 1950, which established the office and status of the United Nations High Commissioner for Refugees, provides as follows in par 3:

     "The High Commissioner shall follow policy directives given him by the General Assembly or the Economic and Social Council."

     There is no reference in the Statute to "orders", and no power is conferred on the High Commissioner to make determinations binding upon subscribing states. 

244. The Tribunal found in substance that the respondent's objections were that he did not wish to risk his life for a purpose of no benefit to ethnic Armenians and he did not wish to spend further time in military service as he had already served two years.  The Tribunal held that, while it sympathised with those beliefs, they did not disclose a genuinely held conscientious objection to the war over Nagorno-Karabakh.  The Tribunal placed emphasis on the fact that the respondent did not express objections to killing other people in war situations, "subject to the inference that they were not Armenians". 

245. In his reasons for judgment, Emmett J (dissenting) in the Full Court said[202]:

     "There may be an element of uncertainty in the language adopted by the primary judge in criticising the Tribunal for having rejected the Respondent's claim 'without coming to a view, if it could'.  It is not clear whether his Honour was referring to the possibility that the Tribunal ought to have made further enquiries because its fact finding and investigative procedure was inadequate or whether his Honour was simply saying that the Tribunal should have come to a view on the basis of the material before it. 

     If the latter is the correct interpretation, it is difficult to see how the Tribunal could have come to a view, on the material before it, that deserters or draft evaders constitute a particular social group.  That is to say, in so far as they are persecuted by the harshness of punishment, that would be no more than the application of a law of common application to them in respect of their contravention of that law.  In any event, that would be a finding of fact which would not be subject to review in the Court.

     If the former is the true interpretation, however, as the Respondent contended, there was nothing to indicate what kind of material might possibly be available.  The one straw in the wind was the reference to the German newspaper report that the United Nations High Commissioner for Refugees had indicated that Armenian draft resisters should be given refugee status.  There was apparently nothing more in the material before the Tribunal.  The argument was that, if the United Nations High Commissioner for Refugees had expressed such a view, further enquiries were called for that may have elicited information which suggested that deserters and draft evaders, in the context of the Nagorno-Karabakh conflict, were being treated in a differential manner such as would constitute them a particular social group.  

     The difficulty with such an argument is that it is not clear what further inquiries could or should have been made by the Tribunal.  There is certainly no material before the Court to indicate what might possibly have been ascertained by such an inquiry.  On the material before the Tribunal, there is no basis for concluding that deserters and draft evaders constitute a particular social group.  They are simply a particular group of law breakers, members of whom are punished, in the same way as all other citizens, for failing to comply with the requirements of the law of Armenia. 

     In the absence of anything further before the Tribunal, and in the absence of any indication as to what might have been obtained had further enquiries been made, I do not see any basis for interfering with the determination of fact made by the Tribunal.  The Tribunal considered the material before it and reached a conclusion, on the basis of that material, that deserters or draft evaders do not constitute a 'particular social group' within the meaning of that expression in the Convention.  In my opinion, the learned primary judge erred in so far as he held that there was material before the Tribunal which would compel additional enquiry as to whether deserters or draft evaders could constitute a particular social group."

     [202][1999] FCA 649 at [32]-[36].

246. I would, with respect, adopt what his Honour said in those passages.

247. The Tribunal did not fail to do what it was required to do by s 430 of the Act. And, even if it had, for the reasons that I have stated and those that I gave in Yusuf, such a failure would not be reviewable pursuant to s 476 of the Act. Furthermore, both the Federal Court and the Full Court fell into error in the way in which they criticised and rejected the decision of the Tribunal for its omission of a reference to an "order" of the United Nations High Commissioner for Refugees which, even if it had been made, could have no binding or conclusive effect.

     Orders

248. I would allow the Minister's appeal and dismiss the respondent's application for prerogative relief. 

249. Consistent with the conditions upon which special leave to appeal to this Court was granted, I would not disturb any orders as to costs which have been made in the courts below and I would order that the Minister pays the respondent's costs of the appeal.