Legal unreasonableness back in season — with mixed success

Key Points:

Traditionally, the ground of legal unreasonableness was only available for a conclusion that was "so unreasonable that no reasonable authority would ever consider imposing it" (Associate Provincial Picture Houses Ltd v Wednesbury Corp [1947] 1 KB 223). It was regarded as an exceptional ground that was not easily satisfied.

However, the decision of the plurality of the High Court in Minister for Immigration and Citizenship v Li expanded Wednesbury unreasonableness. It is no longer a ground which would only succeed in exceptional circumstances, rather "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification".

As the cases below reveal, the ground of legal unreasonableness has had some traction in quashing decisions of a procedural nature. However, courts remain reluctant to vitiate substantive decisions that are "within the authority of the decision-maker to make" (Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 per Griffiths J).

Ms Kaur sought merits review by the Administrative Appeals Tribunal of a refusal by a delegate of the Minister for Immigration and Border Protection to grant her a student visa. Ms Kaur was in contact with the Tribunal throughout the review process and the Tribunal actively followed up with Ms Kaur during this time, including by phone and email.

Following an initial Tribunal hearing, Ms Kaur was invited to a further hearing but she failed to attend. The invitation was sent by post to Ms Kaur's correct address. The Tribunal exercised its statutory discretion under the Migration Act 1958 (Cth) to proceed to make a decision without taking any further action to allow Ms Kaur to appear before it and affirm the decision not to grant the visa. Ms Kaur applied for judicial review of the Tribunal's decision and asserted that she never received the second hearing invitation.

The matter was ultimately heard by the Federal Court: there, Justice Mortimer held that the Tribunal's exercise of its statutory discretion to proceed to make a decision was unreasonable. Specifically, Justice Mortimer found that given the history of contact between the Tribunal and Ms Kaur, including proactive contact from the Tribunal, it was inexplicable that:

• there was no attempt by the Tribunal to contact Ms Kaur when she failed to respond to the hearing invitation within the requested time; and
• the Tribunal maintained the second hearing despite Ms Kaur's lack of response.

Interestingly, Justice Mortimer reached these conclusions despite the Tribunal's compliance with the statutory regime which prescribed certain methods for sending hearing invitations.

AZAFB's application for a protection visa was refused by a delegate of the Minister and he sought merits review by the Tribunal. As is common practice, AZAFB provided his mobile phone number on his Tribunal review application.

Similarly to Kaur, AZAFB failed to attend his Tribunal hearing and the Tribunal exercised its statutory discretion to proceed to make a decision. AZAFB sought judicial review of the Tribunal's decision in the Federal Circuit Court, claiming that the Tribunal's decision to exercise its discretion was unreasonable.

The Federal Circuit Court dismissed the judicial review application because it was:

"clear that the Tribunal turned its mind to whether it should proceed with the review and determined to do so in the circumstances where it had notified the applicant consistently with the statutory regime in respect of the authorised address identified in the application for review to the Tribunal."

However, on appeal, Justice North of the Federal Court reached a very different conclusion, holding that:

"[e]lementary common sense demanded that the Tribunal at least attempt to contact the applicant on the mobile phone number which it had in its records".

Justice North reached this conclusion despite the fact that the Tribunal's finding was consistent with the statutory regime, as was noted by the Federal Circuit Court.

No appeal was lodged by the Minister in this matter and it is yet to be considered by a higher court. However, there are matters before the Federal Court which are considering the limits of AZAFB (for example AXI15 v Minister for Immigration [2016] FCCA 947 in which an appeal is currently pending).

Mr Stretton was born in England in 1954. He moved to Australia with his family in 1961. In 2009, Mr Stretton committed sexual offences against his granddaughter and was imprisoned for two years. The Minister exercised his statutory discretion to cancel Mr Stretton's visa. The Minister did so after considering Mr Stretton's submissions against the visa cancellation, including that it would be detrimental to Mr Stretton's daughter's psychological health if her father returned to England, as she was suffering from depression.

Justice Logan of the Federal Court held that the Minister's decision to cancel the visa was unreasonable. He found that the Minister had "taken a sledgehammer to crack a nut", and that the decision was in excess of what was necessary for the purpose it served.

However, on appeal to the Full Court of the Federal Court, it was held that the Minister's decision was not unreasonable. The Full Federal Court emphasised that the Court's role was not to conduct merits review and held that the Minister had the authority to cancel the visa. Justice Griffiths held that:

"the intensity of the legal standard [of reasonableness] is likely to be higher in the case of review of the exercise of a discretion which is of a procedural character."

Similarly, Mr Eden's visa was cancelled following his conviction for sexual assault, although his sentence of 12 months' imprisonment was suspended. The Minister nonetheless cancelled Mr Eden's visa.

Justice Logan held that the Minister's decision to cancel the visa was unreasonable, and in doing so, referred to the hardship that Mr Eden and his family would suffer if his visa was cancelled.

The Full Federal Court overturned Justice Logan's decision, holding that it was wrong because he "assessed what he considered to be the reasonable outcome and effectively concluded that any other view was unreasonable." The Minister's decision was not in any sense irrational or illogical, and it was not for the primary judge to overturn that finding and replace it with his own finding.

As a ground of judicial review, legal unreasonableness has found momentum following the decision of Li. Legal unreasonableness is no longer a ground which would only be successful in exceptional circumstances.

The cases referred to above demonstrate that courts have been more willing to find legal unreasonableness in respect of exercises of discretion of a procedural nature, rather than a substantive decision. As Justice Gageler held in Li:

Accordingly, like procedural fairness, even if the decision-maker complies with the statutory framework, there is scope for the court to find error on the ground of legal unreasonableness.

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