By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
When an adverse credit finding is to large extent based on a fact which does not exist, the need to make an obvious inquiry about whether that fact may be right can lead to unreasonable decision making.
This occurred in the recent Full Federal Court decision of Pillay v Minister for Immigration and Citizenship [2026] FCAFC 24 where the tribunal made a pungent conclusion about an applicant hiding material from a psychiatrist.
It turned out that the applicant did not hide the material from the psychiatrist and in fact had given the psychiatrist the full bundle of material comprising the record of what happened at an earlier hearing.
It is useful to look at what the ART actually said (which is set out in the Full Court’s judgment at paragraph 52:
[50] The Applicant’s explanation for this inconsistency between what is recorded about his conduct in the material and how he reported that conduct to Dr Yoxall is now vacuously sought to be explained away on the basis of him saying he gave her the whole remittal bundle and that he relied on her to look through the entirety of that material (circa 2100 pages) and to counterpoint and compare his version of a given incident compared to what the remittal bundle has to say about that incident. The reality is the Applicant knew the precise details of the answer he had to provide to Dr Yoxall’s question on a given incident. He took a gamble on Dr Yoxall perhaps not turning up the relevant page(s) in the remittal bundle to expose the blatant inaccuracy of what the Applicant was telling her. While he may think the gamble paid off with Dr Yoxall, it will not with this Tribunal.
[51] In any event, it transpired during Dr Yoxall’s evidence that she had not been provided with the transcript of the previous ventilation of this matter before this Tribunal and nor had she been provided with the critically important prosecution QP9 material. Both the previous transcript and the QP9 documents appear in the remittal bundle. The result is that an inference can now be drawn that the Applicant selectively provided material to Dr Yoxall such as to deprive her of fulsomely fact-checking or cross-referencing whatever answer he gave her to a given question against what should have appeared in the remittal bundle before her. This does the Applicant’s credit no favours.
[52] This predisposition towards dishonesty is a concerning facet of both the Applicant’s offending pattern and in his approach towards instructing Dr Yoxall.
It turned out fact that the material the tribunal said was not supplied to Dr Yoxall was, in fact. supplied to Dr Yoxall.
The Full Court was careful not find that the ART’s error as a “failure to inquire” (see [74].
However the Full Court “concluded that the Tribunal’s decision to proceed to make a decision in this case, based in part on the strong adverse findings that it made about the material that was provided to Dr Yoxall and Mr Pillay’s dishonesty in respect of that issue, without making any further inquiry or otherwise raising the issue with Mr Pillay, was legally unreasonable. This conclusion arises from the unusual constellation of circumstances in this case…” (see 72]
The Full Court added:
“73.Our conclusion that this course was legally unreasonable does not depend on the fact that the Tribunal’s finding turns out to have been wrong (though it does take into account the seriousness of the consequences that would naturally follow from the Tribunal’s conclusion, and the harshness of those consequences in the event that the conclusion were to turn out to be wrong). However, it is doubtful that Mr Pillay could have established that that unreasonableness on the part of the Tribunal was material to its decision (and thus amounted to jurisdictional error) without demonstrating that there was objective evidence that he could have provided to the Tribunal, which showed that its conclusion was wrong.”
Generally the failure to inquire has been accepted as a basis for a tribunal not conducting a proper review or as a basis for unreasonableness but the courts have not accepted that a tribunal has a duty to inquire.
In Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at 1128 [20]):
“The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
Later, their Honours said (at 1129 [25]):
“Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. …”
As can be seen therefore there is a delicate distinction between a ‘duty to inquire’ which probably does not exist but that a failure to inquire can mean that a tribunal did not conduct a proper review.
In Pillay, the failure to inquire or indeed the failure to properly explore whether the psychiatrist did get a full briefing or not, meant that the findings on credibility were unreasonable.
An interesting practice point in this case is that court at first instance received evidence of what was actually sent to the psychiatrist in an email to her (see [50].