Case: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: cited
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J. 119 Section 152CP(5) required the Commission to give its reasons for making the final determination. And pursuant to s 25D of the Acts Interpretation Act 1901 , that obligation extended to setting out its findings on material questions of fact including references to the evidence or other material on which those findings were based. Those requirements focus on the subjective thought processes of the decision-maker. It must set out its findings on those questions of fact which it considers to be material to the decision it has made and the reasons it had for reaching that decision as explained by McHugh, Gummow and Hayne JJ in Yusuf (2001) 206 CLR at 346 [68]. 120 The purpose of the arbitration was to determine whether Optus should be granted access to the ULLS in a manner different to its then current access. The subject matter, scope and purpose of ss 152CP(2) and 152CR(1)(d) required the Commission, in making a final determination about the subject matter of the arbitration concerning access by Optus to the declared ULLS service to have regard to the actual direct costs which Telstra would incur in providing the access to Optus as required by the final determination. 121 The Commission accepted that there were already direct costs incurred by Telstra in providing the existing access. But, the Commission, as decision-maker, had to have regard in addition to the direct cost to Telstra of effecting what it was considering as a final determination. This view is reinforced by the prohibition imposed by s 152CQ(1)(f). That directs the Commission not to make a final determination for access if in doing so Telstra would be required to bear an unreasonable amount of the costs of extending or enhancing the capability of a facility. Thus, not only was the Commission required to have regard to Telstra's actual direct costs for the purposes of arriving at a final determination, it was prohibited, if the costs of doing so were unreasonable, from making a final determination.