Australia: Legal unreasonableness back in season — with mixed success

Clayton Utz Insights

Key Points:

Recent Full Federal Court decisions reinforce the limits of seeking judicial review for legal unreasonableness.

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).

Kaur v Minister for Immigration and Border Protection [2014] FCA 915

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 v Minister for Immigration and Border Protection [2015] FCA 1383

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).

Stretton v Minister for Immigration and Border Protection [2016] FCAFC 11; Eden v Minister for Immigration and Border Protection [2016] FCAFC 28

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.

Conclusion

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:

"[l]ike procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty."

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.

You might also be interested in...

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.