Australia: High Court revives Wednesbury unreasonableness

Last Updated: 28 July 2013
Article by Cain Sibley

Key Points:

The decision in Li could be the beginning of the integration of the concepts of unreasonableness, rationality and logicality in judicial review.

The High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18 found that the failure by the Migration Review Tribunal (MRT) to grant an adjournment to an applicant was unreasonable and rendered the Tribunal's refusal of her application invalid.

The decision is noteworthy because it is one of the few occasions where a court has found unreasonableness on the part of the decision-maker. Perhaps more importantly, though, the judgments in Li set out the High Court's vision for unreasonableness as a ground of review.

The application for review and the decision in Li

Li involved an applicant for a type of visa which required a successful skills assessment from Trade Recognition Australia (TRA) as a criterion for grant of the visa. Initially, Ms Li's application for a visa was refused by a delegate of the Minister for Immigration. She applied for review by the MRT.

After the MRT hearing, Ms Li's migration agent informed the MRT that Ms Li's application to TRA was unsuccessful but that the decision of the TRA was incorrect. The migration agent explained to the MRT why this was the case. The migration agent asked the MRT not to make a decision until after the TRA had reconsidered Ms Li's skills assessment application.

The MRT decided not to do so. It informed Ms Li that the MRT "considers that the applicant has been provided with enough opportunities to present her case and is not prepared to delay any further". It refused Ms Li's application for review. Incidentally, after the MRT decision, Ms Li's migration agent was proved right; Ms Li was granted a skills assessment by the TRA.

The question the High Court considered was whether the MRT should have granted Ms Li the adjournment she sought. All five members of the High Court held that it should have granted the adjournment.

The connection between unreasonableness, rationality and logicality

Chief Justice French found that the reasons of the MRT made "no reference to the probability that [Ms Li] would be able, within a reasonable time, to secure the requisite skills assessment". The Chief Justice held that the concept of unreasonableness:

"reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusion about the correct or preferable decision. However the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense."

Against this background, the Chief Justice held that the MRT decision to deny Ms Li the adjournment did not engage with the submission made on her behalf about the imminent decision by TRA. He held that there was "an arbitrariness about the decision, which rendered it unreasonable".

In a joint judgment, Justices Hayne, Kiefel and Bell developed further the idea that unreasonableness is linked to rationality and logicality. They held that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." While their judgment stressed that in appropriate cases decision-maker may decide that "enough is enough", they held that it was not clear how the MRT reached that conclusion in the circumstances of Ms Li's case.

Similarly, Justice Gageler held that decision-making authority "conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purpose of the statute." He found that the MRT's decision was lacking in a true weighing-up of Ms Li's application for an adjournment: "The MRT identified no consideration weighing in favour of an immediate decision on the review and none is suggested by the Minister." He did however stress the rareness of Ms Li's case and cautioned against whimsical findings of unreasonableness.

Practical lessons from Li for decision-makers

The decision in Li, and in particular the beginning of the integration of the concepts of unreasonableness, rationality and logicality, paves the way for further judicial work in this area.

However, Li also has some important lessons on a practical level.

For decision-makers, Li reinforces the importance of ensuring that reasons show an engagement with submissions made on behalf of applicants and how they have been weighed in the decision-making process.

For Commonwealth parties to merits review proceedings (for example, in the Administrative Appeals Tribunal), Li also cautions against taking too hard a line against applications for adjournment made by other parties.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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