Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 15
Outcome: discussed
This takes me to the sixth of the Minister's grounds on the hearing of the appeal. On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her. These authorities stretch back over the life of the Tribunal: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at 21-22 per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and 49 per Callinan J; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 (" SBBA ") at [8] per Weinberg, Stone and Jacobson JJ; Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47 at [24] per Moore, North and Emmett JJ; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [16] per Ryan, Jacobson and Lander JJ; WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 at [25] per Heerey, RD Nicholson and Mansfield JJ; NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355 at [24] - [25] per Branson J ; Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 751 ; (2005) 145 FCR 155 at 174 per Conti J; Hong v Minister for Immigration and Indigenous Affairs [2004] FCA 1308 at [40] per Finn J; NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528 at [20] - [21] per Jacobson J; Rahman v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1277 (" Rahman ") at [29] per French J; Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426 (" Anthonypillai ") at 445 per Heerey, Goldberg and Weinberg JJ; Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295 at 305-306 per Katz J; Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209 at 212-213 per McHugh J; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 560-561 per Lee J; and Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (" Prasad ") at 169-170 per Wilcox J. On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 (" Wednesbury Corporation "). 63 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. 64 Today, at least in the context of migration cases, judicial discussion of the significance of a failure to obtain further information on a critical issue ordinarily commences with Prasad. In Prasad , Wilcox J expressed the view, in obiter dictum, that it was unreasonable in the circumstances of the case (where a 'spouse' visa was at issue) not to seek out the explanations of certain inconsistencies in the material before the decision-maker. It was plain enough that explanations for the inconsistencies were readily ascertainable. Wilcox J referred to the recognised authorities and said, at 169-170, that: "A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision which perhaps in itself, reasonably reflects the material before him in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in an manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information." (Emphasis added) 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. 67 In Yang , which was not a Judicial Review Act case, the Minister's delegate rejected an application for a student visa on the basis that the applicant's proposed plan of study represented a "regression" in his studies of some three years. In reaching this conclusion, the delegate relied on the applicant's statement that he had completed up to "year 12" in China and wanted to study at "Year 10" level in Australia. Ryan and Finkelstein JJ held, at 579, that if the concept of regression was to be the determinative factor, in circumstances where the information that the applicant provided was insufficiently detailed, there was a duty on the delegate to request further relevant information. After referring to such cases as Prasad and Videto , their Honours observed at 579 that: "The obscure statement that he had acquired a "Year 12" qualification in China was not borne out by the translation of his Chinese school certificate. In such a case of 'obvious omission or obscurity' a decision-maker should adopt the simple expedient of requiring further information from the applicant... though, if the reply is unhelpful, a decision-maker is clearly not obliged to go further ...". In Yang , an unreasonable exercise of a discretionary power to enquire, or to cause an enquiry to be made, rendered the manner of making the ultimate decision unreasonable so as to give rise to jurisdictional error.