FEDERAL COURT OF AUSTRALIA MIGRATION - judicial review - remedies - application for permanent residence pre‑dating 1 September 1994 - whether decision of Tribunal subsequent to that date open to review under Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether applicant had accrued right or benefit of presumptions against retrospectivity or ouster of jurisdiction. MIGRATION - application for permanent residence - application pre-dating 1 September 1994 - affirmation of decision by Tribunal - whether Tribunal gave adequate reasons - whether Tribunal fell into error of law - whether Tribunal affected by actual bias. MIGRATION - jurisdiction - application for review - whether ground of review in s 476(1)(e) of Migration Act 1958 (Cth) includes grounds of failure to take into account a relevant consideration; taking into account an irrelevant consideration and unreasonableness. Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Act 1958 (Cth), ss 368(1), 475(1)(a), 476(1)(e), 485(1) Acts Interpretation Act 1901 (Cth), ss 8, 8A Migration Reform Act 1992 (Cth) Migration Reform (Transitional Provisions) Regulations, reg 23(3) Migration Regulations 1993, cl 820.721, par (2)(b) Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583, followed Palwinder Singh v Minister for Immigration and Ethnic Affairs and Immigration Review Tribunal (von Doussa J, Federal Court of Australia, 31 January 1996, unreported), followed Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481, followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, distinguished Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, discussed Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505, followed Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs (1994) 35 ALD225, followed IONA BORSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS WAG 154 OF 1997 R D NICHOLSON J PERTH 17 JULY 1998 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA Western Australia DISTRICT REGISTRY wag 154 of 1997 BETWEEN: IONA BORSA Applicant AND: minister for immigration and multicultural affairs Respondent JUDGE: R D NICHOLSON J DATE OF ORDER: 17 july 1998 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondent's notice of objection to competency be allowed. 2. The application be dismissed. 3. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA Western Australia DISTRICT REGISTRY wag 154 of 1997 BETWEEN: IONA BORSA Applicant AND: minister for immigration and multicultural affairs Respondent JUDGE: R D NICHOLSON J DATE: 17 JULY 1998 PLACE: PERTH REASONS FOR JUDGMENT HIS HONOUR: The applicant brings an application to review a decision of the Immigration Review Tribunal ("the Tribunal") made on 13 November 1997 whereby the Tribunal affirmed the decision of the respondent to refuse the application of the applicant for a class 8/20 (Extended Eligibility (Spouse) Entry Permit). The grounds on which the amended application for an order of review relies are brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). The circumstances in which review is sought are as follows. On 24 January 1994 the applicant applied to remain permanently in Australia. On 20 December 1995 a delegate of the respondent decided not to grant the applicant the requested entry permit. On 29 December 1995 the applicant applied to the Migration Internal Review Office ("MIRO") for review of the primary decision. On 8 July 1996 the decision was made by a MIRO Review Officer affirming the primary decision to refuse the grant of a transitional (permanent) visa. On 9 August 1996 the applicant applied to the Tribunal for review of the MIRO decision. On 13 November 1997 the Tribunal affirmed the decision under review. On 10 December 1997 the applicant applied for the present order of review. Notice of objection to competency The respondent objects to the jurisdiction of this Court to try the application for an order of review under the ADJR Act. The grounds on which that notice is brought are, firstly, the jurisdiction of the Federal Court under the ADJR Act is specifically excluded by s 485(1) of the Migration Act in respect of "judicially-reviewable decisions", which has the meaning given by s 475(1) of the Migration Act. Secondly, the decision of the Tribunal sought to be reviewed by the applicant is a "judicially-reviewable decision" under s 475(1)(a) of the Migration Act. Section 485(1) provides: "In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially‑reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903." Section 475(1) provides decisions of the Tribunal are judicially-reviewable decisions. It is not in dispute the decision here sought to be reviewed is not excluded by application of s 475(2). It is not contended s 44 of the Judiciary Act 1903 (Cth) ("the Judiciary Act")has any relevance. For the applicant it is contended, in the absence of a contrary intention, the exclusion effected by s 485(1) of the Migration Act does not affect any "right accrued" under the ADJR Act. For this proposition reliance is placed upon ss 8 and 8A of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). The former section provides that where an act repeals in whole or in part a former act then, unless the contrary intention appears, the repeals shall not affect any right accrued under any act so repealed and any such remedy may be instituted, continued or enforced as if the repealing act had not been passed. Section 8A provides a reference to a repeal includes a reference to the exclusion of the application of the act or part of the act to any person, subject matter or circumstances. Part 8 of the Migration Act, in which ss 475 and 485 appear, came into operation on 1 September 1994. The application to remain in Australia therefore predated that date. The application to MIRO and to the Tribunal were each made after that date. The applicant's contention parallels that raised for the applicant in Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583. There the applicant applied for refugee status on 24 July 1991. On 22 October 1993 the application was refused by a delegate of the Minister. On 1 September 1994 the Migration Reform Act 1992 (Cth) ("the Migration Reform Act") commenced operation. On 4 October 1994 the Refugee Review Tribunal affirmed the delegate's decision. On 2 November 1994 the applicant applied to the Federal Court for an order of review under the ADJR Act and for remedies under s 39B of the Judiciary Act. In a joint judgment Black CJ and Sundberg J considered firstly whether the applicant in Yao had a "right" to which s 8 of the Acts Interpretation Act applied. After considering the decision of the High Court in Esber v Commonwealth (1992) 174 CLR 430, particularly at 440‑441, their Honours expressed the view it might be thought the applicant did not have even an inchoate or contingent right to review the decision of the Tribunal in that the application for review was made after the deemed repeal. However, they went on to state that in Lee v Secretary, Department of Social Security (1996) 68 FCR 491 and ACI PET Operations Pty Ltd v Comptroller-General of Customs (1993) 118 ALR 114 at 126‑127, Esber had been applied by single judges of this Court as establishing that s 8(c) of the Acts Interpretation Act preserves to an applicant the benefit of the whole range of pre‑repeal avenues of review so long as the applicant has set the review process in train by making an initial application. Their Honours considered this approach was not consistent with the decision in Director of Public Works v Ho Po Sang [1961] AC 901 where it was held a mere hope or expectation that a right will be created is not preserved in such circumstances. They noted the High Court in Esber relied on that case amongst others for the proposition that inchoate and contingent rights can be protected by s 8. For reasons relevant to the decision in Yao their Honours reached no concluded view but proceeded on the basis of an assumption that, unless a contrary intention appeared, the applicant's right to review under the ADJR Act and s 39B of the Judiciary Act was preserved by s 8(c). Davies J, in contrast and aside from the issue of legislative intent expressed in s 39 of the Migration Reform Act, reached the view that the applicant in Yao had an accrued right to have the decision rejecting his application for recognition as a refugee reviewed by the Tribunal. He did so after considering the nature of the claim and whether it had characteristics appropriate to those of an accrued right. In addition, he had regard to the function of the Tribunal and whether there were review rights in existence prior to the commencement of the amending legislation and whether the review proceedings were commenced thereto. He considered his conclusion to be consistent with Esber. However, both the majority judges and Davies J agreed that if there was an accrued right, the legislative intention expressed in s 39 of the Migration Reform Act manifested an unmistakable and unambiguous contrary intention which rebutted not only the right but also any presumption against retrospectivity or against the ouster of the jurisdiction of the court. For the applicant it is contended here the relevant transitional provision in the Migration Reform Act is not s 39 relied on in Yao but rather s 40. That section, in contradistinction to s 39, authorised regulations to provide that a specified provision of the Principal Act (being the Migration Act) repealed or amended by the Migration Reform Act, is to continue to apply to specified persons, specified circumstances or in relation to visas in a specified amended Act class. It was also provided in s 40(9) that such a regulation ceases to have effect at the end of ninety sitting days of either House of the Parliament after the regulation commences. The Migration Reform (Transitional Provisions) Regulations ("the Regulations")- in apparent exercise of that regulation-making power - provided in reg 23(3) that an application for a transitional visa "[is] to be taken to be an application for a transitional visa... to be decided according to the criteria that applied to the entry permit for which application was made". That applied to an application for an entry permit made on or after 19 December 1989 and before 1 September 1994 which had not been determined before 1 September 1994: reg 23(1). The Regulations came into effect on 1 September 1994. The applicant's application being unresolved at that date, the Regulations applied to it. Accordingly it is submitted for the applicant that neither in the legislation nor the transitional provisions is any contrary intention evinced for the purposes of s 8 of the Acts Interpretation Act, nor is any intention to rebut the presumption against retrospectivity or the ouster of the jurisdiction of the court made apparent because the effect of the legislation and regulations was to continue the criteria prevailing prior to 1 September 1994. Submissions to similar effect were made to Jenkinson J in Amanyar v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 194. However, he expressed no opinion on them as it was unnecessary to do so (see 202). In Palwinder Singh v Minister for Immigration and Ethnic Affairs and Immigration Review Tribunal (von Doussa J, Federal Court of Australia, 31 January 1996, unreported) at first instance von Doussa J, apparently without the benefit of detailed argument and without reference to the issues of accrued rights and the presumptions against retrospectivity or ouster of jurisdiction, addressed a submission that the Migration Act continued to apply "because the transitional regulations provide that the matters which are pending as of 1 September 1994 should be governed by the old provisions". His Honour said at 4-5: "Regulation 23 is the relevant transitional regulation, and it does not so provide. It provides only that an application not finally determined before 1 September 1994 'is to be decided according to the criteria that applied to the entry permit for which application was made'. Regulation 23 is directed to the criteria to be applied in determining an outstanding application, not to the procedural processes by which the determination is to be made. In my opinion the jurisdiction of the Court to review the decision of the Tribunal made after the Migration Reform Act 1992 came into operation arises under ss 475 to 486, being the legislative provisions then in force. It follows that the grounds upon which the Court may review the decision of the Tribunal are limited by the provisions of s 476." On appeal to the Full Court the issue was not argued: Palwinder Singh v Minister for Immigration and Ethnic Affairs and Immigration Review Tribunal, (Beaumont, Spender and Branson JJ, Federal Court of Australia, 7 May 1996, unreported). I agree with the reasoning of von Doussa J in Palwinder Singh. In my opinion when reg 23(3) provides the application is "to be decided according to the criteria applied to the entry permit for which application was made" it is adopting and re-applying that criteria as if it were re-enacted. As von Doussa J said, it is directed to the criteria to be applied and not to the procedural processes by which the determination is to be made. I also agree with the view expressed by Davies J in Yao in 601 that s 485(1) of the Migration Act expressly states Parliament's intention that the Federal Court should have not jurisdiction other than that conferred by Pt 8 with respect to decisions under the Migration Act. That is, s 485(1) is itself a sufficient statement of contrary intention to preclude the applicant's argument. It is the case reg 23(8) provides that subdiv AB Div 3 of Pt 2 of the Migration Act does not apply to an application referred to in the regulation and applies under s 342 of the Migration Act only where the application is made on or after 1 September 1994. That subdivision provided a code of procedure for dealing fairly, efficiently and quickly with visa applications. Although that distinguishes the procedure applicable to applications lodged prior to 1 September 1994 from those lodged on or after that date, I do not consider this dictates any different conclusion. Even if the applicant had an accrued right arising from the lodgment of her application, which case may arguably be supported by reference to reg 23(8), the legislative intent to the contrary for the purposes of s 8 of the Acts Interpretation Act, is, in my view, explicit for the reasons already given. Furthermore, the decision which was affirmed by the Tribunal was the decision made on 20 December 1995, that is after 1 September 1994. If it is the case the accrued rights contended for do not extend beyond the right prevailing at the relevant date (that is the right to apply for residence), the right to apply to the Tribunal arose after the relevant date and attracted the legal regime then applicable. For these reasons I consider the respondent's notice of objection to competency should be allowed and, so far as the application is based upon the ADJR Act, it is incompetent. This conclusion does not deprive the applicant of any proposed ground and therefore seemingly has no practical effect. It precludes proposed grounds relating to procedural matters which it is accepted for the applicant fall within s 476(1)(a) of the Migration Act as permitted subjects of review. The remaining grounds - irrelevant consideration, relevant considerations and unreasonableness - arise for consideration pursuant to s 476(1)(e), as appears below, albeit subject to coming within the words of that paragraph. Tribunal's reasons Before proceeding to the grounds of review arising under the Migration Act it is necessary to set out the reasoning of the Tribunal which led it to affirm the decision under review. The Tribunal described the applicant as a 56 year-old Romanian national who had arrived in Australia on 29 April 1993 under a visitor visa. On arrival she obtained an entry permit allowing her to remain until 29 April 1994. On 14 November 1993 she married Stefan Borsa ("Mr Borsa"). On 24 January 1994 her application was lodged. The criteria prescribed for the grant of a transitional visa were those made applicable by reg 23 of the Regulations and contained in the Migration Regulations 1993. They were set out in cl 820.721, par (2)(b) of which provided the applicant met the requirements of the sub‑cl if "the marital relationship between the applicant and the Australian citizen or Australian permanent resident...is both genuine and continuing". That criteria was applicable at the time of the application. The reasons recount there was a first hearing on 29 January 1997 at which the applicant, Mr Borsa and her son, Vasile Timis, gave evidence under affirmation. An adjourned second hearing was held in 8 May 1997, attended by the applicant and a Ms Rowbotham. The Tribunal recorded it had before it the contents of the Departmental file together with various submissions and other documents. Included among these was a statutory declaration from Mr Borsa. Relevantly in the declaration he stated in February 1994 he and his wife, the applicant, had moved to Unit 9, 4 Heppingstone Street, South Perth. He also recorded he had gone to Romania in 1994, 1995 and 1996 without his wife and stated the reasons for that occurring. The Tribunal found the applicant to be adamant her husband was in Australia the whole time during the period between their meeting two to three months after her arrival and their wedding. However it also found immigration records showed that not to be the case. The Tribunal also found Mr Borsa had made six trips to Romania without the applicant since his marriage, all without the applicant. In relation to the lease for the South Perth unit, the Tribunal said it was signed in the name of Mr Borsa only and it stipulated the accommodation was to be occupied by one person only. The Tribunal referred to a statement made on 25 November 1994 in which the Property Manager of the real estate company handling the lease of the South Perth unit stated the lease was for one person only. She also stated that during an inspection on 27 June 1994, she had noted the unit appeared to be occupied by only one man. The Tribunal said this evidence had been brought to the attention of Mr Borsa at the hearing and he had stated it was always his intention he and the applicant would live there although he could not remember what he had discussed with the Property Manager. The Tribunal then referred to a letter received from the applicant's solicitor dated 24 February 1997 in which Ms Rowbotham stated she had visited the applicant and Mr Borsa on quite a few occasions at the South Perth unit and it was obvious to her the applicant was living there. In evidence to the Tribunal she described herself as a sex industry worker and Mr Borsa as her client. She said she saw the couple every couple of weeks and they appeared "very stable". Before the Tribunal also was a note dated 18 January 1995 from the Department of Social Security ("DSS") to the Department of Immigration and EthnicAffairs ("the Department") which advised Mr Borsa had informed the DSS he had moved from his address at South Perth about two months ago "when he separated from his wife". He said although he hoped to get back together again "there now appears to be no chance of that". This evidence was put to Mr Borsa at the hearing. In a supporting letter, undated, but sent by his solicitor on 27 February 1997 Mr Borsa stated he had experienced a few arguments with his wife concerning the time she spent with her grandchildren but he and the applicant were living together. The Tribunal also recorded the applicant's application was supported by statutory declarations from her daughters which described her relationship with Mr Borsa. The Tribunal set out its understanding of the statutory requirement that the applicant and Mr Borsa not only be legally married but also be living in a genuine continuing relationship. This understanding is not controverted on behalf of the applicant. The Tribunal said it was a question of fact to be determined on the circumstances of the case taking into consideration the various facets of the relationship as indicated by the evidence. If left in a state of uncertainty by that evidence, the Tribunal considered it must decide against the exercise of the statutory power. The Tribunal then said: "On the evidence the Tribunal is satisfied that some form of relationship exists between the Applicant and Mr Borsa. That relationship may even be on balance an intimate one although the Tribunal makes no finding on the issue. However having carefully considered the evidence and having regard to the inconsistencies referred to above the Tribunal is unable to reach a finding of fact that the couple's relationship may be described as a genuine and continuing one between two spouses." The Tribunal supported this conclusion by referring to the applicant's evidence relating to the time she had spent with her husband leading to their marriage which it found not to be convincing. It also found the terms of the lease in respect of the South Perth unit, corroborated by the statement of the Property Manager, flew in the face of the evidence of the applicant and Mr Borsa that they there lived together. It preferred to rely on the terms of the lease and the statement of the Property Manager rather than the evidence of the applicant, Mr Borsa or Ms Rowbotham. In the Tribunal's view, inconsistencies were readily apparent from the Department's file. It considered the applicant's solicitor was concerned with inconsistencies after examining the files on 18 November 1996 because in a letter dated 20 December 1996 to the applicant he identified the following issues to be of concern: "1. the lack of evidence of joint management of usual household arrangements which generally evidence the required commitment. In the alternative, the lack of explanation as to why there are no joint arrangements; 2. the lack of clear instructions provided by you as to the situation in relation to the residence at South Perth;. 3. the information provided by Mrs Borsa to the Department of Social Security; 4. the frequent overseas trips made by mr Borsa for various family and business commitments." The Tribunal referred to a letter from the applicant's solicitor dated 29 May 1997 responding to these matters. The letter asserted the applicant and Mr Borsa were in a continuing marital relationship; it sought to explain the South Perth lease on the basis Mr Borsa had applications for properties rejected when accommodation for two people were sought; the communications with the DSS were partially explained by reference to difficulties between the couple at the time in relation to time spent with the applicant's family and that Mr Borsa was consuming large quantities of alcohol at the time. It stated the instructions were that at no time had the applicant and Mr Borsa separated. The Tribunal concluded it was left in a state of uncertainty as to whether there was a genuine continuing relationship. It considered the "decision-making pendulum remained in equilibrium": per Carr J in Ester Jones v The Minister for Immigration and Ethnic Affairs (Full Court, Federal Court of Australia, 6 December 1995, unreported). Inadequacy of reasons The first ground of appeal pursuant to the Migration Act is the Tribunal failed to comply with its obligations under s 368(1) of that Act. That section provides: "Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraph 375A (2) (b), prepare a written statement that: (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (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." The ground is particularised in three respects. Firstly it said the Tribunal failed to make findings of fact as to the nature and quality of the relationship. Secondly, while the Tribunal found in one respect the evidence of the applicant was not convincing, it made no findings regarding the general credibility of the applicant or the credibility of the other witnesses, namely Mr Borsa, the applicant's son and Ms Rowbotham. Thirdly, this was not a case in which the Tribunal had formed the view that none of the witnesses before it could be relied upon so that it was bound to reach and set out firm conclusions concerning the relevant facts and in particular about the nature and quality of the applicant's marital relationship. In support of this ground it is contended for the applicant the reasons of the Tribunal failed to make any reference to the following evidence which, it is submitted, is important and probative. Firstly, there is the evidence of Father Soactar in the statutory declaration sworn 16 December 1993 and a letter dated 24 April 1996. Secondly, there was the evidence of a Dr Dan Cojocaru in a statutory declaration sworn 18 February 1984. Each of these witnesses made statements to the effect the relationship between the applicant and Mr Borsa was genuine. Thirdly, there was the evidence of Mr John Harrison to the same effect in a letter dated 26 April 1996. Fourthly, there was a statutory declaration of the applicant's daughters to the detail of which the Tribunal did not go. Included in this was the statutory declaration of the daughter Maria Simon stating the applicant and Mr Borsa moved to and lived together in the South Perth unit. Fifthly, there is a statement dated 24 November 1996 by the applicant's son that the couple lived at the South Perth address. The nature of the obligation on the Tribunal to state its reasons is not in contention between the parties to this application. Initially the case for the applicant relies upon the statement in Man Ki Kim v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 481 per Foster J. He there addressed the nature of the duty of the Tribunal to give a statement of reasons pursuant to s 135 of the Act (now s 368(1) as re-numbered). His Honour referred to the practice of a court adopting a "restrained approach" in reviewing decisions of administrative tribunals so that such reasons are not construed "minutely and finely with a eye keenly attuned to the perception of error" but rather "sensibly and in a balanced way": quoting Politis v FCT (1988) 16 ALD 707 at 708 per Lockhart J. Balanced against this is the fact the obligation to give reasons will not be satisfied unless "the basis of the reasoning of the Tribunal may be inferred from what it says": per Beazley J in Barry Rogers & Co Pty Ltd v Minister for Immigration and Ethnic Affairs (1995) 35 ALD 197 at 202. The Tribunal was not under an obligation to isolate in its reasons every issue of fact and record a specific finding in respect of each of them - there will only be a sufficient compliance with the requirement of giving adequate reasons if "the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored": FCT v Cainero (1988) 15 ALD 368 at 370. These principles were stated prior to the Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 in which members of the High Court addressed the same principles. At 271-272 Brennan CJ, Toohey, McHugh and Gummow JJ said that such propositions recognised "the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." Their Honours recognised that any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a re-consideration of the merits of the decision. See also Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 413-414 and Mohamed v Minister for Immigration and Ethnic Affairs, (Hill J,Federal Court of Australia, 11 May 1998, unreported). I accept the submission on behalf of the applicant this case is distinguishable from that in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32. That was a case in which the Tribunal was unable to make findings of fact because it was unable to accept the credibility of any of the witnesses appearing before it. That is not this case. Nevertheless I do not consider the Tribunal failed to fulfil its obligation to comply with the requirements of s 368(1) of the Migration Act. The Tribunal was not obliged to refer to or particularise all the evidence before it. There was evidence before it, particularly that concerning the living arrangements in relation to the South Perth unit and inconsistencies in the applicant's evidence relating to the time she spent with her husband leading up to their wedding, upon which it could base its decision. Its decision was reached by reference to a state of uncertainty. That state was the product of the particular evidence referred to. The reference by the Tribunal to the relationship possibly being on balance an intimate one and its failure to make findings on the issue was apparently responsive to the nature of the evidence before it. While doubtless more complete reference to the evidence upon which this ground is based would have more readily captured the confidence of those reading the reasons of the Tribunal had the reasons adverted to all relevant evidence, the Tribunal was under no obligation to recite the evidence in that way and there was evidence upon which it could base its conclusion. Its reasoning was disclosed. It did not find the evidence for the applicant credible in a number of respects. In my opinion this ground is not made out. Irrelevant consideration Next the case for the applicant seeks to bring within the ambit of s 476(1)(e) of the Migration Act contentions based on the fact the Tribunal, in its reference to the letter from the applicant's solicitor dated 20 December 1996, took into account an irrelevant consideration. The submission for the applicant is that even if the implied opinion of the solicitors could fairly be taken into account against the applicant, it was not a factor relevant to the issue in the case, namely the nature of the relationship between the applicant and Mr Borsa. It is submitted that issue is to be determined objectively by reference to findings of fact rather than the opinions of others. Section 476(1)(e) provides for review on the basis "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." In s 476(3) it is provided the ground of review in s 476(1)(d) ("that the decision was an improper exercise of the power conferred by this Act or the regulations") does not include a reference to taking an irrelevant consideration into account in the exercise of a power - par (d). There is a preliminary question whether an issue of irrelevant consideration can be raised within s 476(1)(e). The case for the applicant on this point is that the judgments in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 support this. For the respondent it is accepted that the reasons for judgment of the majority in Eshetu support the proposition that review on the ground of an error of law under s 476(1)(e) of the Migration Act remains available, notwithstanding that one or more of the grounds of review available at common law or under the ADJR Act, of taking an irrelevant consideration into account, failing to take a relevant consideration into account or the exercise of a power that is so unreasonable that no reasonable person could have so exercised the power, has been made out and each is excluded as a ground of review pursuant to pars (2)(a), (3)(d) and (3)(e) of s 476 of the Migration Act: see Davies J at 262 at lines 20‑25; Burchett J at 635 line 22 to 636 line 51 and 641 line 44 to 642 line 14. However, in order to establish an error of law within the meaning of s 476(1)(e) there must be "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". The applicant does not specify whether the error of law alleged in each case is an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. Assuming the applicant is referring to an error of law involving an incorrect interpretation of the applicable law, the applicant has failed to demonstrate in what respect the Tribunal incorrectly interpreted the applicable law. This case is quite different from Eshetu where Davies J (with whom Burchett J agreed) found that the Refugee Review Tribunal had misunderstood the meaning and operation of the term "well‑founded fear", and thus the decision involved an error of law involving an incorrect interpretation of the applicable law (at 633). I accept the submission for the respondent that it is not sufficient for the applicant to allege there was an error of law within the meaning of s 476(1)(e) simply by reason of the taking into account of an irrelevant consideration (or failure to take into account a relevant consideration or unreasonableness). Furthermore I consider the respondent is correct in submitting there is no basis for the applicant's claim that such matters constitute an error of law by the Tribunal by reason of an incorrect application of the law to the facts as found by the Tribunal. In any event, the allegation that the Tribunal took into account an irrelevant consideration is not made out. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39‑40 Mason J distinguished between evidence generally and "factors" which a decision-maker was bound to consider. He said in the context of judicial review on the ground of taking into account irrelevant considerations, the High Court has held that, where a statute confers a discretion which in its terms is confined, the factors that may be taken into account in the exercise of the discretion are similarly confined, except insofar as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard. He also said not every consideration a decision-maker is bound to take into account will justify the court setting aside the impugned decision on the ground that it is irrelevant. This is so even with respect to "factors" because they might be so insignificant that the failure to take them into account could not have materially affected the decision. In my opinion the only "factor" which the Tribunal took into account in making its decision was that it was unable to reach a finding of fact that the applicant's marital relationship with Mr Borsa was both genuine and continuing. Accordingly I do not consider that this aspect of the ground is made out. Relevant considerations It is next submitted for the applicant the ground in s 476(1)(e) entitles it to be contended the Tribunal failed to take into account certain relevant considerations. For the reasons given in relation to irrelevant considerations, the applicant's case fails to establish how, if the Tribunal did fail, the failure came within the criteria of s 476(1)(e). In any event the alleged failure is not made out. The relevant considerations relied upon for the applicant are the written evidence provided by Father Soactar; Dr Cojocaru; Mr J Harrison; the applicant's daughters; and the applicant's son both in a written statement and sworn evidence. The nature of this evidence has previously been referred to. In Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 Deane J it was said "the ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide". In Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 Carr J (with whom Sheppard and Gummow JJ agreed) referred to the confusion between taking into account relevant considerations with taking into account particular pieces of evidence. Relevant considerations are the "factors" referred to by Mason J in Peko-Wallsend. The applicant's submissions rely on particular pieces of evidence. They make no case that the Tribunal failed to take into account a relevant consideration or "factor". Additionally, on the face of the reasons, there was no failure by the Tribunal to consider the written and oral evidence referred to by the applicant in support of this ground. The Tribunal specifically stated the contents of the Department's file were before it together with various submissions and other documents. It specifically referred to the giving of evidence by the applicant's son and that the statutory declarations of the applicant's daughters were before them. There is no foundation for this aspect of this ground. Unreasonableness It is then contended for the applicant it is open to the Court to consider particulars of alleged unreasonableness pursuant to s 476(1)(e). For the reasons given in relation to irrelevant considerations, the applicant's case does not establish how, if unreasonableness is established, it comes within the criteria of s 476(1)(e). In support of the contentions of unreasonableness the case for the applicant relies upon, firstly, the failure of the Tribunal to not believe the applicant, her husband, her son or Ms Rowbotham; secondly, its alleged failure to have regard to the evidence previously referred to; and finally an alleged failure to make enquires regarding such evidence or to test it or weigh it with the evidence of other witnesses. None of the particulars relied upon individually or collectively would sustain the ground in any event. The decision of the Tribunal was one which I have previously found was open to it. There was material before the Tribunal on which its decision was based. There is no basis on which a ground of unreasonableness could succeed. Actual bias Section 476(1)(f) provides a permissible ground of review is that the decision was induced or affected by actual bias. The case for the applicant contends the decision under review was so affected. The particulars relied upon to establish actual bias are those relied upon in relation to the grounds that the Tribunal took into account and irrelevant consideration; failed to take into account relevant consideration; failed to make express findings concerning certain witnesses or to make inquiries, test or weigh their evidence. The applicant contends that actual bias is to be inferred from these matters. In order to make out this ground it is necessary for the case for the applicant to show "that the Tribunal had a closed mind to the issues raised and was not open to persuasion by the applicant's case": Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 per Wilcox J at 551. There is nothing in the reasons for decision of the Tribunal which could remotely give rise to a finding of fact that the Tribunal had a closed mind. Furthermore the particulars relied upon have earlier been found not to have been made out. Conclusion For these reasons I consider the application should be dismissed. I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON Associate: Dated: 17 July 1998 Counsel for the Applicant: S Walker Solicitor for the Applicant: Cannon Bowden & Co Counsel for the Respondent: P Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 June 1998 Date of Judgment: 17 July 1998