Case: Luu v Renevier (1989) 91 ALR 39
Outcome: discussed
The concept of vitiating unreasonableness has been extended to the manner in which a decision was made. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterized as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the enquiry: see Prasad at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 (" Videto ") at 178 per Toohey J; Luu v Renevier (1989) 91 ALR 39 (" Luu v Renevier ") at 47-50 per Davies, Wilcox and Pincus JJ; Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139 (" Detsongjarus ") at 143 per Pincus J; Rahman at [30] per French J; Tickner v Bropho (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 (" Yang ") at 579 per Ryan and Finkelstein JJ. This proposition is also discussed in other cases, such as Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. In this circumstance what vitiates the decision is the manner in which it was made. Since this is a limited proposition, it does not conflict with the larger statement that the Tribunal is under no general duty with respect to making enquiries: see Prasad at 169-170 per Wilcox J and Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48 at 73-74 per Allsop J; but contrast SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [20] - [22] per Edmonds J. 65 Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context. 66 Thus, in Videto at 178, Toohey J referred to the need for a decision-maker to make enquiries when the material before him or her contained "some obvious omission or obscurity that needs to be resolved before a decision is made". His Honour emphasized the fact that Mr Videto did not have the benefit of legal advice to assist him in placing all relevant material before the decision-maker. In Luu v Renevier , a Full Court of this Court agreed that the failure of a decision-maker to make enquiries can, in some circumstances, vitiate a purported exercise of power. The Court held, at 47-48, that a decision was unreasonable, within s 5(1)(e) and (2)(g) of the Judicial Review Act, where a decision-maker made a critical finding that was unsupported by evidence. Further, a decision was unreasonably made, for the purposes of these provisions, where, to the knowledge of the decision-maker, there was other readily available factual material likely to be of critical importance on the critical issue, which was not obtained. At 50, the Court said: "The underlying rationale of the approach suggested in Prasad is that the ground of unreasonableness, in the context of the [Judicial Review Act] may be related to the manner in which the power is exercised. ... One may say that the making of a particular decision was unreasonable and, therefore, an improper exercise of the power because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained." The Court held, at 50, that the decision was unreasonable because the decision-maker made adverse findings about the risk of recidivism on Mr Renevier's part on the basis of inadequate medical material: "yet no attempt was made even to obtain a report from the psychiatrist known to be attending Mr Renevier, still less to obtain the opinion of a specialist endocrinologist. ... Had that course been taken, and yielded the information which was placed before the primary judge, the conclusion could not rationally have been reached that there was a real risk of recidivism".