Case: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Outcome: discussed
The appellants relied on the comments of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. Wilcox J determined that in refusing to grant permanent residency to the applicant, the Minister had failed to take into account relevant considerations, which was a sufficient ground for the decision to be set aside. His Honour considered whether the decision was "so unreasonable that no reasonable person could make it". His Honour said (at 170): "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 be to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision-making power in a 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) 38 However, in Prasad , Wilcox J did not apply the principle to the facts because "little new material emerged at the hearing" (at 176). His Honour also noted that it was not strictly necessary for the point to be decided. 39 Wilcox J revisited his earlier comments in Prasad in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 and said: "It will be a relatively rare case in which a statutory decision is vitiated because of a decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored". 40 However the alleged jurisdictional error is that the Tribunal should have accessed the 2002 and 2005 documents, but did not. In Prasad , Wilcox J spoke of circumstances where it was obvious that material was readily available which was centrally relevant. But his Honour's observations concerned a challenge to a decision by reference to s 5(1)(e) and s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), namely on the basis that the decision involved the improper exercise of a power because the decision was so unreasonable that no reasonable person could have so exercised the power. Importing the observations of Wilcox J (quoted at [37] above) into a case such as the present, it would be necessary to determine to whom it was obvious that material was readily available. Is that an assessment made after the event by reference to facts proved in the judicial review proceedings (facts such as the Tribunal had the 2003 and 2005) but without proof that the Tribunal member knew of the documents? Or does it additionally require proof that the Tribunal member was aware that the documents were held by the Tribunal or at least knew that it was likely that such documents were held by the Tribunal? The answer is suggested by Wilcox J who referred, before the quoted passage, to circumstances where the decision maker unreasonably fails to ascertain relevant facts which he or she knew to be readily available to him or her (at 169.9). In the present case one would have thought it would be necessary to demonstrate that the Tribunal member knew of the documents existence or, perhaps, ought to have known that it was likely the documents existed and were readily available. The evidence in this case would not support a finding to that effect even inferentially. In my opinion, the point sought to be raised by the appellant about the 2002 and 2005 documents has insufficient prospects of success to permit it to be raised in this appeal. Consequently I refuse the appellant leave to amend the notice of appeal to add this ground.