Case: Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571
Outcome: discussed
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. 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.