Case: Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151
Outcome: considered
Minister for Immigration and Citizenship v Le and Others [2007] FCA 1318 ; (2007) 164 FCR 151 Kenny J at [63] observed: 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 characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (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 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing 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. Therefore a failure of a Tribunal to make inquires in certain circumstances may also constitute jurisdictional error due to ' Wednesbury unreasonableness' (see [62] of Le regarding Wednesbury ). Despite comments in SZIAI at [13]-[15] and [22]-[23] noting the difference between judicial review under the Administrative Decisions (Judicial Review) Act 1977 and judicial review under s 75(v) of The Constitution , SZIAI would not appear to disturb Le . Indeed at [26] of SZIAI the majority stated: ' no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error ' [emphasis added]. Such statement would appear to confirm that a failure to make an inquiry could constitute jurisdictional error for at least two different reasons. Those are, a constructive failure to exercise jurisdiction in fulfilling the role of the Tribunal to review, and ' Wednesbury unreasonableness'. ...about a critical fact... Both SZIAI and Le formulate the type of information similarly: ' an obvious inquiry about a critical fact ' (in SZIAI at [25]) or ' obtain important information on a critical issue ' (in Le at [63]). The Court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant's failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The Tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the Tribunal, it could not be clear precisely what those grounds were. Both SZIAI and Le make it plain that the inquiry must be directed towards information, ' the existence of which is easily ascertained ' (in SZIAI at [25]) or ' which the decision-maker knows, or ought reasonably to know is readily available ' (in Le at [63]). In Le , Kenny J found (at [77]-[78]): At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker's statements regarding Mr Nguyen's supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen's written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of this case, especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh's residence that day. These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal's review. Alternatively, a call or email to the delegate or Department would be highly likely to have provided at least some degree of clarification of the exceptional circumstances claimed by the appellant. Kenny J found in Le at [77], as extracted above, that an enquiry of the primary decision-maker was a step that could be taken by the Tribunal. It is possible that the delegate would not recall the circumstances of 10 March 2008, 1 April 2008, or the exceptional circumstances claimed by the appellant at that time, as submitted by the Minister, but such possibility is unlikely. Even if information was not forthcoming from either of these sources, had such enquiries been made the Tribunal would have put beyond all doubt that it had before it all the information it could to make its decision. In such circumstance s 359C of the Act would have allowed it to proceed to its decision and there would have been no ground for criticism from this Court. As it stands, however, the Court finds that there was a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable. Is there a jurisdictional error?