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Case25123

cited

Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225

In a later decision of the High Court, Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck '), Gleeson CJ had refused Ms Luck leave to issue a writ of summons and statement of claim which had been the subject of a direction made by Callinan J pursuant to O 58 r 4(3) of the High Court Rules. The question before the Court was whether Gleeson CJ's order was final or interlocutory. 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].' 46 Of course, as the High Court has said in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230, the test for whether an order is final or interlocutory is whether the order made finally determines the rights of the parties in the principal action before the Court.

OBJ

Case25124

cited

MZWHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 491

In my opinion, the Court can have regard to the jurisdiction which was exercised by the Court below in determining whether the effect of the order which was sought is to finally determine the issues between the parties. Where the Court is exercising its summary jurisdiction to dispose of the matter without proceeding to examine the matter on its merits it is more likely that the order made is not a final order but an interlocutory order because the order does not usually finally determine the legal rights of the parties: MZWHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 491 per Crennan J.

OBJ

Case25125

applied

Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397

The tests that have to be considered in an application for leave to appeal are well know: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. On an application such as this, an applicant must establish that the decision is attended with sufficient doubt to warrant it being reconsidered by the Court of Appeal. If so, the applicant must also satisfy the Court considering the question of leave that substantial injustice would result if leave were refused. Of course, the two tests are not considered independently of each other but are interrelated. 51 In my opinion, there can be no doubt that the applicant has failed to satisfy the Court that the decision is attended with sufficient doubt to warrant it being re considered by the Full Court. Except for the claim of bias, the grounds which gave rise to the order dismissing the application were in substance the same grounds which had previously been ventilated before Smith FM in the Federal Magistrates Court and on appeal to this Court, and in the application for special leave to the High Court. 52 The Magistrate was right to conclude that the application was in that respect an abuse of process.

OBJ

Case25126

discussed

Le v Minister for Immigration & Anor [2007] FMCA 427

First, according to the learned Federal Magistrate, the Tribunal failed to discharge its obligations under s 360 of Act by failing to ensure Ms Le and her children were given an adequate opportunity to present their case and by proceeding in the absence of an interpreter. His Honour held that "where a hearing has not concluded in the sense that witnesses available have not given evidence ... there is a continuing obligation on the part of the Tribunal to ensure that the invitation to the hearing remains genuine and is not simply a hollow or empty gesture": see Le v Minister for Immigration & Anor [2007] FMCA 427 (' Le v Minister' ) at [62]. His Honour added at [64]: "If an opportunity has been given during the hearing for a further hearing to occur then that opportunity should be conveyed through and [sic] interpreter to the Applicant. Failure to do so in my view renders the process which occurred after the interpreter left the hearing room as meaningless. There is no evidence that the Tribunal arranged for its transcript to be made available to the Applicant or that it sought any assurance that what had been said at the Tribunal hearing would be interpreted. Instead the Tribunal relies on knowledge that the agent apparently had 'Vietnamese' staff and that the agent could 'arrange to explain what we have discussed with your client when you've got use of some staff to help explain to her'." 26 The Federal Magistrate also had regarded to what he called the agent's "significant concessions", made in the absence of an interpreter and without knowledge of the content of the s 359A letter: see Le v Minister at [65]-[66]. His Honour noted that the agent was unwilling to accept responsibility for determining whether there should be a further hearing and purported to leave this matter to the Tribunal. His Honour considered the agent's failure to press for a further hearing involved an "extraordinary concession" in the circumstances of the case: see Le v Minister at [66]. His Honour described the agent's approach to the Tribunal as "obsequious". The agent was, so his Honour thought, more concerned with his personal preference than with the interests of his clients. His Honour regarded the agent as negligent in failing to press for a further hearing in order that the other witnesses could give their evidence. His Honour remarked, at [67], that: "There is simply no evidence to suggest that the clear invitation properly referred to by the Tribunal was ever passed on in detail to the Applicant. It would be wrong for the Court to assume that it occurred ... The exchange between the agent and the Tribunal was critical. Without the offer being accurately and contemporaneously interpreted the conclusion I reach is that offer of a further hearing upon receipt of the s 359A letter could not properly by interpreted as a genuine offer and the ongoing obligation of the Tribunal to ensure that its original hearing is valid." 27 Further, his Honour noted the "clear evidence of circumstances which at the very least would bring into question the voluntariness of the withdrawal of the sponsorship document", as well as the fact that the purported withdrawal had not been properly translated. He observed, at [72]-[73], that: "At the very least the other evidence of the witnesses available to the [sic] called but not called due to the absence of the interpreter may have provided the Tribunal with other evidence in the absence of the departmental officers which would have made it less likely for the Tribunal to rely upon the written document obtained on the Applicant's allegations after a five hour interview without a break and without refreshment. The obligations imposed upon a Tribunal under s.360 should not be narrowly confined to an invitation to appear but also to 'give evidence and present arguments relating to the issues arising in relation to the decision under review'. It is the invitation to give evidence and present arguments that is crucial. The giving of evidence is not confined simply to the Applicant but extends to those witnesses whom the Applicant has evinced an intention to call. It is not appropriate for the Tribunal to simply seek to transfer the obligation it has under s.360 to the Applicant's agent. In the present case it is particularly inappropriate to extend the further invitation in the absence of an interpreter when the Tribunal cannot be satisfied that the extension of that invitation has been accurately interpreted and communicated to an Applicant." 28 For these reasons, his Honour found that there had been a breach of s 360 of the Act. 29 Secondly, the Federal Magistrate found: (1) the Tribunal ought to have made additional enquiries pursuant to ss 359 and 363 of the Act to obtain evidence from or about the Minister's officers and their conduct; and (2) the Tribunal made an assessment of the facts that was not reasonably open to it. Accepting that there was no general duty on the Tribunal to make enquiries, his Honour said, at [89]-[90]: "However, in this instance the Tribunal was able to easily request the attendance of the relevant Departmental officer or officers who conducted the interview which resulted in the withdrawal of sponsorship. It was after all the interview process which was subject to significant challenge and the voluntariness of the withdrawal statement questioned. Whilst the Tribunal was able to assess the subsequent explanation from the nominator as to why the withdrawal document had been signed it should in my view following my reasoning in relation to the previous ground have permitted the Applicant to adduce further evidence in support of the application which may have given greater corroboration to the likelihood or otherwise of the withdrawal having been made voluntarily. It could then assess evidence from relevant Departmental officers. Although the decision of Wilcox J in Prasad appears to be obiter, it is obiter which I am prepared to follow to the extent that in this instance for the Tribunal to proceed to a decision without making any attempt to obtain evidence from the Departmental officers that it conducted itself in a manner which could properly be described as exercising a decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. By making a finding that it did not accept the Department's officers 'would have fabricated his admissions or pressured him into formally withdrawing his sponsorship' the Tribunal was not making an assessment of the facts reasonably open to it. Accordingly this ground succeeds." 30 His Honour found that the other grounds for judicial review were not made out. The Minister challenges his Honour's judgment.

SUBJ

Case25127

cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476

The Tribunal's decision was a "privative clause decision" within the meaning of s 474 of the Act. As a result, it can only be set aside on judicial review if jurisdictional error is shown: see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 at 506-508 and 511. 42 The Federal Magistrate based his decision principally on s 360 of the Act. This provision requires the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present argument relating to the issues arising in relation to the decision under review". The Act, in s 425, imposes an equivalent obligation on the Refugee Review Tribunal. The Tribunal is bound to extend an invitation under s 360 where the documentary material before it would not lead it to make a decision in the review applicant's favour: see ss 360(2) and 425(2). 57 Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.

OBJ

Case25128

referred to

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552

The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one.

OBJ

Case25129

referred to

Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356

The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one. 59 Since there was no basis to impute negligence to Mr Oladejo, this is not a suitable occasion to consider whether relief would be available if it were shown that a review applicant lost an opportunity to present evidence on account of an adviser's negligence: for a discussion of the question, see French J's discussion in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 (" SZFDE ") at 383-392. It suffices to note that, as his Honour said, in a passage subsequently referred to with approval by the High Court, there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision: SZFDE at 399 referred to in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, and Crennan JJ. For the reasons stated, I would say no more about the other arguments that arose under the third and fourth grounds of appeal.

OBJ

Case25130

referred to

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592

The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one.

OBJ

Case25131

distinguished

Sok v Minister for Immigration and Citizenship [2007] FCA 413

Did it matter that this exchange took place only between the Tribunal and Mr Oladejo and in the absence of Ms Le and an interpreter? For the following reasons, I do not think so. I accept that, as the Minister submitted, this was not a case in which the Tribunal did not complete the steps in the review process that it considered necessary to afford a real, in the sense of fair, opportunity to present evidence and arguments: compare Sok v Minister for Immigration and Citizenship [2007] FCA 413 at [52] per Kenny J. 47 It is immaterial that Mr Oladejo had no right to address the Tribunal, providing he had the capacity to answer the Tribunal's enquiries of him on Ms Le's behalf. Although present to assist Ms Le, Mr Oladejo had no right to address the Tribunal at the hearing on 7 March 2006. The right (though not the capacity) of someone other than the review applicant to address the Tribunal at a hearing is circumscribed by the Act. When appearing before the Tribunal, the review applicant is entitled to have another person present to assist, although the assistant is not entitled to present arguments or address the Tribunal, unless the Tribunal is satisfied that exceptional circumstances justify the assistant in doing so: see s 366A(1) and (2). The review applicant has no other right to representation when appearing before the Tribunal: see s 366A(3). The Act does not, however, limit the capacity of another person to assist the review applicant at a hearing, when he or she is invited by the Tribunal to do so. Whether a person has the capacity to assist will generally depend on the relationship between the review applicant and the other person. 48 It is clear enough that Mr Oladejo had the capacity to discuss the further conduct of the hearing with the Tribunal on Ms Le's behalf. Section 366A of the Act does not affect a review applicant's right to engage a representative otherwise than while appearing before the Tribunal: see s 366A(4). In the present case, Ms Le had instructed the law firm of Koenig and Simons to act for her in relation to her review application. Mr Oladejo was apparently a consultant to the firm. Furthermore, as we have seen, on the day of the hearing, Ms Le specifically advised the Tribunal that she had appointed Mr Oladejo as her representative to act on her behalf in relation to her application and to be an "authorised recipient". The Act plainly contemplates that review applicants can appoint representatives to act on their behalf in relation to proceedings before the Tribunal: see, e.g. ss 276, 277, 312B, 332G and 368C. Generally speaking, these representatives will be registered migration agents, although there are other specified persons who may also assist. Under s 312B of the Act, a registered migration agent must notify the Tribunal when he or she gives immigration assistance to a person in relation to a review application after agreeing to represent the review applicant in respect of the review. Furthermore, the transcript shows that, from the outset of the hearing and with Ms Le's tacit consent, the Tribunal permitted Mr Oladejo to act as her representative and he did so act. Amongst other things, before the critical exchange, the Tribunal had already exchanged comments with him concerning the possibility of a further hearing. The interpreter was, of course, present on these earlier occasions and, on the first two occasions, so too was Ms Le. 49 Further, in keeping with his appointment as her representative, Ms Le also nominated Mr Oladejo as her "authorised recipient" for the purposes of the Act. The appointment of an authorised recipient attracts the provisions of s 379G of the Act. Under s 379G(1), a review applicant may give the Tribunal written notice of another person who is authorised "to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review" and, in this event, the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant, although s 379G does not apply "to the Tribunal giving documents to, or communicating with, the applicant when the applicant is appearing before the Tribunal": see 379G(5). 50 The circumstances may show, as they do in this case, that the review applicant has authorized another to represent him or her, as the law permits, for the purposes of communications between him or her and the Tribunal. Although the Act makes specific provision for the manner of certain written communications, it does not do so in respect of oral communications with a review applicant's representative of the kind in question in this case. 51 The communication between the Tribunal and Ms Le's representative was not rendered nugatory because it was not contemporaneously translated to Ms Le. There is no basis in the Act or elsewhere to require that any oral communication between the Tribunal and the review applicant's authorised representative be translated contemporaneously to the review applicant. The Tribunal has no general duty to provide an interpreter on every occasion when it is seeking to communicate with a review applicant. The Act does impose an obligation to provide an interpreter where a request is made by a person appearing before the Tribunal to give evidence for the purposes of communication between the Tribunal and that person, unless the Tribunal considers the person sufficiently proficient in English: s 366C(1) and (2). Moreover, the Tribunal must provide an interpreter if the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, even though no request was made: s 366C(3). Obviously, this obligation extends to a review applicant where he or she is appearing to give evidence and lacks proficiency in English. In this case, the Tribunal had complied with its obligations under s 366C by providing an interpreter, as requested, for the review applicant and other witnesses when they gave their evidence to the Tribunal. It was not, however, obliged to ensure that its discussion with Ms Le's representative regarding the possibility of a further hearing was translated to Ms Le herself. 52 It does not follow from this that a representative is at large with respect to his client's affairs. Registered migration agents (as Mr Oladejo was required to be) are subject to regulation by the law, including the Act, the Migration Agents Regulations 1998 (Cth), and the Code of Conduct made under these Regulations and s 314(1) of the Act. Under the Code, registered migration agents are required to act in the lawful interests of their client at all times (clause 1.12); to deal with their clients competently, diligently and fairly (clause 2.1); and to have due regard to a client's dependence on the agent's knowledge and experience (clause 2.4). Further, they "must ... within a reasonable time after agreeing to represent a client, confirm the client's instructions in writing to the client; ... act in accordance with the client's instructions; and ... keep the client fully informed in writing of the progress of each case or application that the agent undertakes for the client...": clause 2.8. Mr Oladejo was thus obliged to seek Ms Le's instructions on the matter of a further hearing and, for this purpose, to inform her of his discussion with the Tribunal. 53 For these reasons, I accept the Minister's contention that there was no proper basis for the Federal Magistrate to conclude that the Tribunal's repeated offers to conduct a hearing were not genuine merely because the offers were made to Mr Oladejo and were not contemporaneously translated to Ms Le. Accordingly, I accept the Minister's submissions with respect to the first ground of appeal advanced at the hearing of the appeal. 54 Further, having regard to the transcript and the Tribunal's reasons for decision, there was no warrant for the Federal Magistrate's finding, if this is what it was, that the Tribunal sought to transfer its responsibilities regarding a further hearing to Ms Le's representative. In this context, it must be borne in mind that the Tribunal is bound to consider the review applicant's wishes, although it does not have to act on them. Section 361(3) of the Act provides in effect that the Tribunal must have regard to the review applicant's wishes, as expressed in a notice under s 361(2), as to the witnesses that should be called to give oral evidence. In the exchanges about the possibility of a further hearing, the Tribunal was in substance asking whether the review applicant's wishes, as expressed at the outset of the hearing, remained the same and thus whether she wished to have the hearing continued on another day when an interpreter was available. Although not obliged to comply with Ms Le's wishes, it was open to the Tribunal to take the view that Ms Le, as advised by Mr Oladejo, was in the best position to assess whether, in view of what had occurred at the 7 March hearing, the s 359A letter and her response to it, the remaining witnesses should be asked to give their evidence at a further hearing. Since Ms Le did not request a further hearing after the s 359A letter, then, it was open to the Tribunal to conclude that, having regard to the evidence and other material already before it, including the discussion with Mr Oladejo, there was no call for a further hearing. The Minister's fifth ground of appeal is thus made out.

OBJ

Case25132

distinguished

Rose v Bridges (1997) 79 FCR 378

I accept that, as the Minister contended, it was incumbent on Ms Le, as an applicant for judicial review, to present some evidence that Mr Oladejo had not communicated to her that the Tribunal was prepared to convene a further hearing if the failure so to communicate was part of her case: compare Rose v Bridges (1997) 79 FCR 378 at 386 per Finn J. There was, as the Minister said, no evidence before the Federal Magistrate that Mr Oladejo had failed to inform Ms Le, through an interpreter, that the Tribunal was willing to reconvene to hear the evidence from the remaining witnesses. Ms Le did not seek to adduce any evidence to this effect. Accordingly, it was not open to his Honour to proceed (as he apparently did) on the basis that Mr Oladejo had not conveyed this information to Ms Le, in breach of his obligations to her. To the extent that his Honour did so proceed, he was in error. I would accept the Minister's submissions under the second ground of appeal.

OBJ

Case25133

cited

Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531

Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.

OBJ

Case25134

cited

Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118

Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ.

OBJ

Case25135

referred to

Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356

The Minister accepted that an invitation under s 360 of the Act must be a genuine invitation to attend a hearing that affords a real opportunity to present evidence and arguments on the issues raised in relation to the decision under the review: see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 552 at 560-561 per Gray, Cooper and Selway JJ; Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 at 388-389 per French J and 400 per Allsop J; and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 600. The Minister conceded that the obligation to which s 360 gave rise was a continuing one. 59 Since there was no basis to impute negligence to Mr Oladejo, this is not a suitable occasion to consider whether relief would be available if it were shown that a review applicant lost an opportunity to present evidence on account of an adviser's negligence: for a discussion of the question, see French J's discussion in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 (" SZFDE ") at 383-392. It suffices to note that, as his Honour said, in a passage subsequently referred to with approval by the High Court, there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision: SZFDE at 399 referred to in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, and Crennan JJ. For the reasons stated, I would say no more about the other arguments that arose under the third and fourth grounds of appeal.

OBJ

Case25136

referred to

SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35

Since there was no basis to impute negligence to Mr Oladejo, this is not a suitable occasion to consider whether relief would be available if it were shown that a review applicant lost an opportunity to present evidence on account of an adviser's negligence: for a discussion of the question, see French J's discussion in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 356 (" SZFDE ") at 383-392. It suffices to note that, as his Honour said, in a passage subsequently referred to with approval by the High Court, there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision: SZFDE at 399 referred to in SZFDE v Minister for Immigration and Multicultural Affairs [2007] HCA 35 at [53] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, and Crennan JJ. For the reasons stated, I would say no more about the other arguments that arose under the third and fourth grounds of appeal.

SUBJ

Case25137

referred to

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12

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 & 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 ").

SUBJ

Case25138

referred to

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73

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 & 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 ").

SUBJ

Case25139

referred to

SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90

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 & 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 "). 81 The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.

SUBJ

Case25140

referred to

Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 47

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 & 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 ").

SUBJ

Case25141

referred to

SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

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 & 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 ").

SUBJ

Case25142

referred to

WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277

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 & 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 ").

SUBJ

Case25143

referred to

NBDF v Minister for Immigration and Multicultural Affairs [2006] FCA 1355

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 & 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 ").

SUBJ

Case25144

referred to

Tide Sequence Industries Pty Ltd v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 751 ; (2005) 145 FCR 155

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 & 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 ").

SUBJ

Case25145

referred to

Hong v Minister for Immigration and Indigenous Affairs [2004] FCA 1308

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 & 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 ").

SUBJ

Case25146

referred to

NAYU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 528

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 & 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 ").

SUBJ

Case25147

referred to

Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277

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 & 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 "). 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 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.

SUBJ

Case25148

referred to

Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 ; (2001) 106 FCR 426

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 & 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 ").

SUBJ

Case25149

referred to

Kabir v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 295

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 & 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 ").

SUBJ

Case25150

referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209

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 & 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 ").

SUBJ

Case25151

referred to

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553

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 & 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 ").

SUBJ

Case25152

discussed

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 15

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 & 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 "). 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 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. 64 Today, at least in the context of migration cases, judicial discussion of the significance of a failure to obtain further information on a critical issue ordinarily commences with Prasad. In Prasad , Wilcox J expressed the view, in obiter dictum, that it was unreasonable in the circumstances of the case (where a 'spouse' visa was at issue) not to seek out the explanations of certain inconsistencies in the material before the decision-maker. It was plain enough that explanations for the inconsistencies were readily ascertainable. Wilcox J referred to the recognised authorities and said, at 169-170, that: "A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision which perhaps in itself, reasonably reflects the material before him in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. 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 me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in an 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) 65 Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context. 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.

SUBJ

Case25153

referred to

Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223

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 & 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.

SUBJ

Case25154

cited

Applicant M17 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1364

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.

SUBJ

Case25155

applied

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323

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.

OBJ

Case25156

referred to

Craig v The State of South Australia [1995] HCA 58 ; (1995) 184 CLR 163

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.

OBJ

Case25157

referred to

Parramatta City Council v Pesell [1972] HCA 59 ; (1972) 128 CLR 305

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.

OBJ

Case25158

referred to

Attorney-General (New South Wales) v Quin [1990] HCA 21 ; (1990) 170 CLR 1

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.

OBJ

Case25159

referred to

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24

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. 65 Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context.

OBJ

Case25160

referred to

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611

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.

OBJ

Case25161

referred to

Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510

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.

OBJ

Case25162

referred to

Corporation of the City of Einfield v Development Assistance Commission [2000] HCA 5 ; (2000) 199 CLR 135

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 & 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 "). 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.

SUBJ

Case25163

referred to

Re Minister for Immigration and Multicultural Affairs Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1

Part of the Minister's challenge to the judgment under appeal involves a challenge to findings, if this is what they were, that were in the nature of findings of fact or mixed fact and law. This Court must make its own assessment in light of the judgment under appeal. In a case of this kind, the appellate court is in as good a position as the Federal Magistrate to form a view about any facts in issue: compare Warren v Coombes [1979] HCA 9 ; (1979) 142 CLR 531 at 551-552 per Gibbs ACJ, Jacobs and Murphy JJ and Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at 127 per Gleeson CJ, Gummow and Kirby JJ. 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.

OBJ

Case25164

referred to

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

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.

OBJ

Case25165

discussed

Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167

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. 65 Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context. 66 Thus, in Videto at 178, Toohey J referred to the need for a decision-maker to make enquiries when the material before him or her contained "some obvious omission or obscurity that needs to be resolved before a decision is made". His Honour emphasized the fact that Mr Videto did not have the benefit of legal advice to assist him in placing all relevant material before the decision-maker. In Luu v Renevier , a Full Court of this Court agreed that the failure of a decision-maker to make enquiries can, in some circumstances, vitiate a purported exercise of power. The Court held, at 47-48, that a decision was unreasonable, within s 5(1)(e) and (2)(g) of the Judicial Review Act, where a decision-maker made a critical finding that was unsupported by evidence. Further, a decision was unreasonably made, for the purposes of these provisions, where, to the knowledge of the decision-maker, there was other readily available factual material likely to be of critical importance on the critical issue, which was not obtained. At 50, the Court said: "The underlying rationale of the approach suggested in Prasad is that the ground of unreasonableness, in the context of the [Judicial Review Act] may be related to the manner in which the power is exercised. ... One may say that the making of a particular decision was unreasonable and, therefore, an improper exercise of the power because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained." The Court held, at 50, that the decision was unreasonable because the decision-maker made adverse findings about the risk of recidivism on Mr Renevier's part on the basis of inadequate medical material: "yet no attempt was made even to obtain a report from the psychiatrist known to be attending Mr Renevier, still less to obtain the opinion of a specialist endocrinologist. ... Had that course been taken, and yielded the information which was placed before the primary judge, the conclusion could not rationally have been reached that there was a real risk of recidivism". 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.

SUBJ

Case25166

discussed

Luu v Renevier (1989) 91 ALR 39

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. 65 Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context. 66 Thus, in Videto at 178, Toohey J referred to the need for a decision-maker to make enquiries when the material before him or her contained "some obvious omission or obscurity that needs to be resolved before a decision is made". His Honour emphasized the fact that Mr Videto did not have the benefit of legal advice to assist him in placing all relevant material before the decision-maker. In Luu v Renevier , a Full Court of this Court agreed that the failure of a decision-maker to make enquiries can, in some circumstances, vitiate a purported exercise of power. The Court held, at 47-48, that a decision was unreasonable, within s 5(1)(e) and (2)(g) of the Judicial Review Act, where a decision-maker made a critical finding that was unsupported by evidence. Further, a decision was unreasonably made, for the purposes of these provisions, where, to the knowledge of the decision-maker, there was other readily available factual material likely to be of critical importance on the critical issue, which was not obtained. At 50, the Court said: "The underlying rationale of the approach suggested in Prasad is that the ground of unreasonableness, in the context of the [Judicial Review Act] may be related to the manner in which the power is exercised. ... One may say that the making of a particular decision was unreasonable and, therefore, an improper exercise of the power because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained." The Court held, at 50, that the decision was unreasonable because the decision-maker made adverse findings about the risk of recidivism on Mr Renevier's part on the basis of inadequate medical material: "yet no attempt was made even to obtain a report from the psychiatrist known to be attending Mr Renevier, still less to obtain the opinion of a specialist endocrinologist. ... Had that course been taken, and yielded the information which was placed before the primary judge, the conclusion could not rationally have been reached that there was a real risk of recidivism".

SUBJ

Case25167

referred to

Detsongjarus v Minister for Immigration and Ethnic Affairs (1990) 21 ALD 139

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. 65 Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context.

SUBJ

Case25168

referred to

Tickner v Bropho (1993) 40 FCR 183

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.

SUBJ

Case25169

referred to

Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325

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.

SUBJ

Case25170

discussed

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

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.

SUBJ

Case25171

referred to

Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275

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.

SUBJ

Case25172

cited

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273

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.

SUBJ

Case25173

referred to

Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 ; (2002) 120 FCR 48

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.

SUBJ

Case25174

cited

SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514

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.

SUBJ

Case25175

referred to

Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71

Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context.

OBJ

Case25176

referred to

Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362

Wilcox J adhered to his approach in Prasad in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119. See also Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 417 per Wilcox J. Prasad and such cases as Videto , Luu v Renevier and Detsongjarus were proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the Judicial Review Act'). Although not on all fours with the common law, the grounds of review under that Act reflect, to some extent, the common law grounds for judicial review: see Peko-Wallsend at 39-42 per Mason J. The discussion in these cases is of some assistance therefore in the present context.

OBJ

Case25177

referred to

NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5

The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.

SUBJ

Case25178

referred to

MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095

The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.

SUBJ

Case25179

referred to

SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90

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 & 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 "). 81 The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.

SUBJ

Case25180

referred to

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287

The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.

SUBJ

Case25181

applied

Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2001) 205 CLR 337

Mr Spalla argued that, considered together, these factors would suggest to a reasonable lay observer that I had prejudged his credibility and the issues in this case. He suggested that, under the test established in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2001) 205 CLR 337 (" Ebner ") and Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 (" Johnson "), I should disqualify myself from the further hearing in the case. 7 The governing principle in determining whether a judge is disqualified on the ground of apprehended bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The focus of this test is whether an observer might conclude that the judge would decide a case "other than on its legal and factual merits": Ebner at 345 per Gleason CJ, McHugh, Gummow and Hayne JJ. 8 The High Court has emphasised that judges should not be overly hasty in acceding to motions to disqualify. This is because judges "have a duty to exercise their judicial functions when ... they are assigned to cases in accordance with the practice which prevails in the court to which they belong": Ebner at 348. This ensures that litigants do not have the opportunity to select their judges (and that judges do not select their cases).

OBJ

Case25182

applied

Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488

Mr Spalla argued that, considered together, these factors would suggest to a reasonable lay observer that I had prejudged his credibility and the issues in this case. He suggested that, under the test established in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2001) 205 CLR 337 (" Ebner ") and Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 (" Johnson "), I should disqualify myself from the further hearing in the case. 7 The governing principle in determining whether a judge is disqualified on the ground of apprehended bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The focus of this test is whether an observer might conclude that the judge would decide a case "other than on its legal and factual merits": Ebner at 345 per Gleason CJ, McHugh, Gummow and Hayne JJ. 9 In this matter, the applicant has identified no factors which, considered individually or cumulatively, warrant my disqualification. The High Court has stressed that the reasonableness of any complaint of apprehended bias is "to be considered in the context of ordinary judicial practice": Johnson at 493. Thus, events occurring within the ordinary course of litigation will not give rise to an apprehension of bias. As the High Court has explained, "modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx": Johnson at 493. As a case progresses, a judge may make rulings, as needs be, on adjournment applications, the admissibility of evidence, the amendment of pleadings and the like but the fact that the ruling may suit the immediate interests of one side rather than the other does not mean that the judge has formed any concluded view about the ultimate merits of the case. From time to time, a judge may also indicate to counsel that she or he is taking some necessarily tentative view on an issue. The reason for this is most often to allow counsel an opportunity to deal with the problem that the judge perceives, whether rightly or wrongly, to lie in counsel's way.

OBJ

Case25183

referred to

Antoun v The Queen [2006] HCA 2

As the High Court's judgment in Antoun v The Queen [2006] HCA 2 indicates, there remain limits on the manner in which a judge may conduct a case even allowing for modern case management practices. In the present case, however, the applicant has identified what are for the most part rulings that are commonplace in many trials. 11 Mr Spalla first raised the issue of my decision to continue with the hearing despite the illness of his senior counsel. As the respondents noted, this was a qualified decision. After a colloquy with the applicant's junior counsel (who has apparently over ten year's experience at the bar) I ruled that the hearing should continue in order that the applicant might present his evidence in chief notwithstanding the absence of senior counsel. The applicant's counsel apparently conceded that he could cope with the presentation of evidence in chief although not cross-examination. I ruled that I would adjourn the hearing, if needs be, to allow the applicant the benefit of senior counsel in the cross-examination of the respondents' witnesses. A date was nominated, which was available to the Court, and, on the information before me at that time, gave the applicant a sufficient opportunity to order his affairs. The respondents opposed any adjournment. My decision favoured neither party. It was a straightforward example of case management, which took account of the interests of all parties, as well as broader interests in the timely progression of cases in order that other litigants might also be heard. Decisions such as these are routine and are not proper bases for disqualifying the trial judge. 12 Similar considerations apply to Mr Spalla's complaints about my rulings concerning the admissibility of his affidavit of 1 June 2005 and his application for leave to amend further his notice of motion. The rulings have not been as Mr Spalla wanted.

OBJ

Case25184

referred to

Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97

Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97, Black CJ and Moore J said at [15]: 'The formulation of separate or preliminary questions is authorised by O 29, r 2 of the Federal Court Rules 1979 (Cth). But it is a procedure that should be adopted with caution and can be fraught with difficulties.'

OBJ

Case25185

referred to

Meat Industry Employees' Union and Another v G & K O'Connor [2000] FCA 1760 ; (2000) 104 FCR 80

Australasian Meat Industry Employees' Union and Another v G & K O'Connor [2000] FCA 1760 ; (2000) 104 FCR 80 (' O'Connor '), the Full Court of this Court said at [70]: 'It is sometimes useful to determine, by way of a preliminary question, an issue between parties that, if resolved in a particular way, may terminate the litigation. However, if this is to be done, it is essential the question be firmly grounded on specified facts; whether found by the court, agreed between the parties or alleged in a pleading. Without that, the answer to the question may not only be academic but can have the effect of confusing or misleading the parties, rather than enlightening them.' The Full Court in O'Connor then noted that in the case before it no facts were specified and it was inappropriate to determine the separate question determined at first instance.

OBJ

Case25186

applied

Rainsford v Victoria and Another [2005] FCAFC 163 ; (2005) 144 FCR 279

in Rainsford v Victoria and Another [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford '), the Full Court of this Court said at [35]: 'Whilst the use of the separate questions procedure can, in some circumstances, avoid delay and lessen the expense in resolving a proceeding, the cases show that there can also be significant difficulties in adopting the procedure, "especially where no findings of fact have been made and the questions are capable of different interpretations": see Anderson v Wilson [2000] FCA 394 ; (2000) 97 FCR 453 at [28] per Black CJ and Sackville J.' Importantly, in Rainsford , the Full Court said at [36]: 'In order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree upon the relevant facts or the court must determine the facts before seeking to decide the question.' (Emphasis applied.) In the current proceeding, Swanline and the respondents have not agreed on the relevant facts necessary to be found to determine the proposed separate questions. Further, Swanline has not placed before the Court in any affidavit the facts which it proposes the Court rely on to answer the proposed separate questions. Swanline submits that the respondents' defence clearly identifies the material facts relevant to the determination of each separate question. However, that is not the case. The relevant parts of the defence merely raise the issues which Swanline wishes to have the Court determine separately. It is no answer to say that the respondents carry the onus of proving the matters pleaded in their defence that bear on the separate questions. The Court is still in the position where the test referred to in Rainsford at [36] is not satisfied.

OBJ

Case25187

cited

Reading Pty Limited v Australian Mutual Provident Society and Another (1999) 217 ALR 495

those circumstances, I am not satisfied that Swanline has discharged its onus of satisfying the Court that it is 'just and convenient' for the trial to be split in the manner sought; see Reading Pty Limited v Australian Mutual Provident Society and Another (1999) 217 ALR 495 at [9]-[10]. Apart from the difficulty caused by the absence of a factual foundation for the resolution to the proposed separate questions, there are other issues that will need to be addressed if Swanline succeeds on the separate questions. Any potential saving of time and cost may be minimal. In any event, if I am overcautious in refusing the motion for determination of the proposed separate questions, such caution is justified by the fact that the pleadings in the proceeding are not finalised. Swanline has foreshadowed further amendments to its statement of claim. Until the pleadings are complete, it is difficult to assess the true utility of seeking to split the trial. However, as things currently stand, in the absence of a firm factual foundation for the resolution of the proposed separate issues, I consider that Swanline's application pursuant to O 29 r 2 should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 October 2006 Counsel for the Applicant: Mr G Rabe Solicitor for the Applicant: Williams Ellison Pty Ltd Counsel for the Respondents: Ms Cahill Solicitor for the Respondents: Ebsworth & Ebsworth Date of Hearing: 5th October 2006 Date of Judgment: 5th October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1318.html

SUBJ

Case25188

cited

Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523. 27 Given the extent to which Deumer stands to gain from the proceedings if they are successful, and that the cause of action is apparently the only asset of Cosdean which may enable it to be paid, or to be substantially paid, under its agency agreement with Cosdean, and that in essence it has no real competing external creditors who might participate in any award of damages, I think it is reasonable that Deumer support Cosdean in the prosecution of the claim, or at least that it have the opportunity to do so. It may wish to make its own assessment of Cosdean's prospects of success in the proceedings or of the likely award of any damages, and balance those things against the amount of the further security for costs I have ordered. That is a matter for Cosdean and Deumer. The circumstances are different from those where there are a number of creditors, including small creditors: cf Yandil 3 ACLC 542 at 545; Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976). There is no other evidence of commercial impracticability in Deumer supporting Cosdean in the claim; see Ariss (1996) 2 VR 507 at 515 per Phillips JA.

SUBJ

Case25189

cited

Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25190

considered

Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1

Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers & Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746. 25 Those cases reflect the policy underlying s 1335 that security may be ordered where a company appears to be in no position to provide security from its own resources where, in all the circumstances, it is reasonable that the resources of some other person or entity standing behind the company or of some person or entity for whose practical benefit the proceeding is being conducted should provide the security. The privilege of limited liability should not necessarily exclude those standing to benefit from proceedings by that company from having to provide support to it: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 at 303-304. The approach was conveniently expressed in Bell Wholesale 2 FCR 1 at 4 where the Full Court (Sheppard, Morling and Neaves JJ) said: "In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the applicant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means." 28 Cosdean accepts that, where the opposition to an application for security for costs is based upon the assertion that the effect of an order for security for costs will stultify a bona fide claim, the onus is upon the party asserting that effect to prove it: see Idoport Pty Ltd v National Australia Bank [2001] NSWSC 744 at [51] - [52] and [66] per Einstein J; Bell Wholesale 2 FCR 1 at 4; Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564 at 583. The last-mentioned case concerned a litigation funder, whose resources were considered to be relevant. Cosdean also accepts that there is no evidence that it has made any approach to Deumer to fund or support the proceedings, or to support any order for security for costs. There is no evidence to demonstrate that Deumer is either unable or unwilling to support Cosdean's action or of any other financial hardship or commercial impracticability in it doing so. 29 Consequently, as I consider for the reasons given that the circumstances of Deumer are properly to be taken into account in considering the applications, it follows that Cosdean has not demonstrated that further orders for security for costs would stultify the proceedings. It may be that Deumer is unable to support the proceedings but that is purely speculation. If it were not prepared to, but had the capacity to do so, in circumstances where it had in effect the first call upon the proceeds of the action to the extent of some $1.8 million, that in itself would be a relevant consideration as to whether to make further orders for security for costs. 30 As noted above, the respondents accept that Cosdean's claim is brought in good faith.

SUBJ

Case25191

discussed

BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339

In my view, having regard to the nature of the claim and the status of Deumer in relation to Cosdean and its real interest in the outcome of the proceedings, it is reasonable that the circumstances of Deumer should be taken into account on the applications for further security. In BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 at 344, Anderson J adopted a similar approach. In other circumstances, the capacity of shareholders or directors of a limited liability company to support proceedings have been taken into account, as has the capacity of trustees of trading trusts, trust beneficiaries, members of associations, debenture holders, guarantors and appointors of receivers: see Colbran at [14.7] pp 237-238 and the cases cited there. The present circumstances provide simply another illustration of what may be taken into account, in appropriate circumstances, in addressing an application for security for costs against an impecunious corporate litigant.

OBJ

Case25192

cited

Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301

Those cases reflect the policy underlying s 1335 that security may be ordered where a company appears to be in no position to provide security from its own resources where, in all the circumstances, it is reasonable that the resources of some other person or entity standing behind the company or of some person or entity for whose practical benefit the proceeding is being conducted should provide the security. The privilege of limited liability should not necessarily exclude those standing to benefit from proceedings by that company from having to provide support to it: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 at 303-304. The approach was conveniently expressed in Bell Wholesale 2 FCR 1 at 4 where the Full Court (Sheppard, Morling and Neaves JJ) said: "In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the applicant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means."

SUBJ

Case25193

discussed

Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25194

cited

Drumdurno Pty Ltd v Braham (1982) 42 ALR 563

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25195

cited

John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25196

cited

Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25197

cited

Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J)

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25198

cited

Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163

In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163.

OBJ

Case25199

cited

Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25200

cited

Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446

In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163.

OBJ

Case25201

cited

P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642

In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163.

OBJ

Case25202

cited

Ratepayers & Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746

Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers & Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746.

OBJ

Case25203

cited

Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514

That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.

OBJ

Case25204

cited

Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609

Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers & Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746.

OBJ

Case25205

cited

Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294

Once the threshold prescribed by s 1335 is satisfied, the discretion as to whether to order security for costs is an unqualified one: Bell Wholesale Co Ltd v Gates Export Corp (1984) 2 FCR 1 at 3; Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609; Spiel v Commodity Brokers Australia Pty Ltd (In liq) (1983) 35 SASR 294; Ratepayers & Residents Action Association Inc v Auckland City Council [1986] 1 NZLR 746.

OBJ

Case25206

distinguished

Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976)

Given the extent to which Deumer stands to gain from the proceedings if they are successful, and that the cause of action is apparently the only asset of Cosdean which may enable it to be paid, or to be substantially paid, under its agency agreement with Cosdean, and that in essence it has no real competing external creditors who might participate in any award of damages, I think it is reasonable that Deumer support Cosdean in the prosecution of the claim, or at least that it have the opportunity to do so. It may wish to make its own assessment of Cosdean's prospects of success in the proceedings or of the likely award of any damages, and balance those things against the amount of the further security for costs I have ordered. That is a matter for Cosdean and Deumer. The circumstances are different from those where there are a number of creditors, including small creditors: cf Yandil 3 ACLC 542 at 545; Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976). There is no other evidence of commercial impracticability in Deumer supporting Cosdean in the claim; see Ariss (1996) 2 VR 507 at 515 per Phillips JA.

SUBJ

Case25207

distinguished

Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542

In my view, it is clear that the Court may do so. There are a number of cases where, in the face of a contention that a security for costs order may stultify an action, the position of unsecured creditors has been taken into account: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446 per Finn J; P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 65 ALJR 642; Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542; Newtons Travel Services Pty Ltd v Ansett Transport Industries (Operations) Pty Ltd (1982) 44 ALR 163. 27 Given the extent to which Deumer stands to gain from the proceedings if they are successful, and that the cause of action is apparently the only asset of Cosdean which may enable it to be paid, or to be substantially paid, under its agency agreement with Cosdean, and that in essence it has no real competing external creditors who might participate in any award of damages, I think it is reasonable that Deumer support Cosdean in the prosecution of the claim, or at least that it have the opportunity to do so. It may wish to make its own assessment of Cosdean's prospects of success in the proceedings or of the likely award of any damages, and balance those things against the amount of the further security for costs I have ordered. That is a matter for Cosdean and Deumer. The circumstances are different from those where there are a number of creditors, including small creditors: cf Yandil 3 ACLC 542 at 545; Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976). There is no other evidence of commercial impracticability in Deumer supporting Cosdean in the claim; see Ariss (1996) 2 VR 507 at 515 per Phillips JA.

SUBJ