Case: Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: referred to
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 "). 61 In Wednesbury Corporation 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 would support the proposition that an exercise of power that is unreasonable in this sense may ground a finding of jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 352, McHugh, Gummow and Hayne JJ held that the concept of jurisdictional error relevant in the present context derives from the general law, as explained in Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179. Craig did not refer expressly to Wednesbury unreasonableness, but the High Court accepted that the list of errors to which Craig referred was not exhaustive. In any event, the reference in Craig to the fact that, in some circumstances, erroneous findings or mistaken conclusions provide a ground of error may cover this form of error. This would be consistent with earlier authoritative statements: see Parramatta City Council v Pesell [1972] HCA 59 ; (1972) 128 CLR 305 at 323 per Menzies, 327 per Gibbs J and 332 per Stephen J; Attorney-General (New South Wales) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 (" Peko-Wallsend ") at 41 per Mason J and the authorities there mentioned; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 626-627 per Gleeson CJ and McHugh J, 640-641 per Gaudron and Kirby JJ, 648-657 per Gummow J, 669-673 per Callinan J; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 554 per Gaudron J, 583-584 per Kirby J (but see 654, 656-657 per Gummow J); Corporation of the City of Einfield v Development Assistance Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 152-154 per Gleeson CJ, Gummow, Kirby, and Hayne JJ; Re Minister for Immigration and Multicultural Affairs Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at 23 per McHugh and Gummow JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 62 per Gleeson CJ, 67 and 76 per McHugh and Gummow JJ and 90-91 per Kirby J. 77 This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. 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. 78 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. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le's application was a matter for it to decide in conformity with the Act and the Regulations. 79 Accordingly, the present is a case where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterized as unreasonable in the Wednesbury Corporation sense. I would uphold the Federal Magistrate's decision on this ground. 80 It is unnecessary to discuss the Minister's seventh ground of appeal, which challenged the Federal Magistrate's holding that the Tribunal had made an assessment of the facts not reasonably open to it. His Honour made this statement after finding that the Tribunal's failure to enquire was an unreasonable exercise of decision-making power. This ground raises matters considered under the sixth ground.