Case: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 , 164 FCR 14
Outcome: followed
There was, however, no opposition to advancing the submission as to a failure to make inquiries in terms of the decision being unreasonable. So structured, the dispute centred upon whether or not it was unreasonable not to have made further inquiries. No submission was advanced on behalf of the Appellant, nor could it have been advanced, that the power of the Tribunal to make further inquiries imposed upon it " any duty or obligation to do so ": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] , [2004] HCA 32 ; 207 ALR 12 at 21 2 per Gummow and Hayne JJ. See also: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [46] , [2007] FCA 1592 ; 164 FCR 14 at 25 per Allsop J; WAGJ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 277 at [24] . Nor was any submission advanced on behalf of the Respondent Minister that there was not a line of inquiry which was readily available to the Tribunal and centrally relevant to the task being undertaken: eg, Li v Minister for Immigration and Citizenship [2007] FCA 1098 at [28] , [2007] FCA 1098 ; 96 ALD 361 at 367 per Kenny J. The simple submission advanced on behalf of the Respondent Minister was that there was material upon which the Tribunal could justifiably have based its decision and there was, in those circumstances, no duty to inquire further. The response of the Association was disclosed to the now Appellant and he provided his response. 19 The position advanced by the Respondent Minister, that review is available where there has been a failure to make inquiries, is consistent with the proposition that jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable: Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [60] , [2007] FCA 1318 ; 164 FCR 151 at 172 3. Her Honour Justice Kenny there observed: [60] 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... 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 [1948] 1 KB 223 (Wednesbury Corporation). [61] In Wednesbury Corporation [1948] 1 KB at 230, Lord Greene MR summarised what he saw as a fundamental common law principle when he said "[i]t is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". He added that "to prove a case of that kind would require something overwhelming". A finding of jurisdictional error on the ground of unreasonableness is rare compared with other grounds: see Applicant M17 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1364 at [29] per North J. It is sometimes said that there must be something exceptional about the case to attract the ground. [62] Although the position in Australia may differ from that in England, the decision in Wednesbury Corporation [1948] 1 KB 223 would support the proposition that an exercise of power that is unreasonable in this sense may ground a finding of jurisdictional error. ... [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 characterised as so unreasonable that no reasonable decision-maker would proceeded to make the decision without making the enquiry... 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... Appl'd: Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 at [36] per McKerracher J. In circumstances where a migration agent forwards by way of facsimile a cover sheet together with a five page submission and where only the cover sheet is received, it has been held to be unreasonable for the Tribunal not to inquire about the missing pages: SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 , 164 FCR 14 per Allsop J.