Minister for Immigration and Border Protection v SZVFW and Others

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ.,Gageler J.,Nettle,Gordon JJ.,Edelman J.
• Judgment Date: 08 August 2018
• Neutral Citation: [2018] HCA 30
• Docket Number: S244/2017
• Court: High Court
• Date: 08 August 2018

[2018] HCA 30

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Nettle, Gordon AND Edelman JJ

S244/2017

Minister for Immigration and Border Protection

Appellant

and

SZVFW & Ors

Respondents

Representation

N J Williams SC with P D Herzfeld and M T Sherman for the appellant (instructed by Sparke Helmore Lawyers)

K A Stern SC with L Andelman for the first and second respondents (instructed by Kinslor Prince Lawyers)

Submitting appearance for the third respondent

Migration Act 1958 (Cth), ss 425, 425A, 426A, 441A, 441C, 476.

Migration — Refugee Review Tribunal — Review of decisions — Where first and second respondents sought review by Refugee Review Tribunal (“Tribunal”) of decision of delegate of appellant to refuse applications for protection visas — Where respondents failed to respond to invitations from Tribunal to appear or provide submissions — Where s 426A(1) of Migration Act 1958 (Cth) empowered Tribunal to proceed to make decision on review without taking further action to allow or enable respondents to appear — Where Tribunal made decision to proceed under s 426A(1) — Whether Tribunal's decision to proceed in absence of respondents was legally unreasonable.

Appeal — Rehearing — Where primary judge held decision of Tribunal was legally unreasonable — Where Full Court of Federal Court dismissed appeal from primary judge's decision, holding that appellant was required to demonstrate error in reasoning of primary judge akin to that required in appeals from discretionary judgments — Whether principles stated in House v The King (1936) 55 CLR 499 apply to appeal from decision on judicial review that administrative decision is legally unreasonable.

Words and phrases — “appeal by way of rehearing”, “appealable error”, “discretionary”, “discretionary decision”, “discretionary power”, “evaluative approach”, “evaluative judgment”, “evaluative process”, “legally unreasonable”, “standard of appellate review”, “unreasonable”.

1 Kiefel CJ. The facts of this case and the statutory provisions relevant to it are set out in the reasons of Nettle and Gordon JJ. I agree with their Honours that this appeal from the Full Court of the Federal Court of Australia should be allowed and with the other orders that their Honours propose.

2 The first and second respondents' (“the respondents”) applications for Protection (Class XA) visas were rejected by the Minister's delegate. The respondents sought review of that decision by the Refugee Review Tribunal, but they did not respond to invitations from the Tribunal to appear before it, in order to give evidence and present arguments.

3 Where an applicant has been invited to appear before the Tribunal for those purposes as s 425 of the Migration Act 1958 (Cth) (“the Migration Act”) requires, in the manner for which s 425A provides, and fails to so appear, s 426A(1) permits the Tribunal to proceed to make a decision on the review without taking any further action to allow or to enable the applicant for review to appear before it. The Tribunal is not bound to take that course. Section 426A(2) provides that the Tribunal is not prevented by the section from rescheduling the hearing or from delaying its decision on the review in order to enable the applicant for review to appear before it.

4 The statutory power given by s 426A is in the nature of a discretion, one which involves a decision by the Tribunal as to the course which it will take. Like any statutory discretionary power, it is subject to the presumption of the law that the legislature intends the power to be exercised reasonably 1. Section 426A is to be construed accordingly.

5 In its reasons the Tribunal recorded that the respondents had been invited to respond on two occasions, on the first to provide submissions or other written material, and on the second to appear before it for the purposes mentioned above. On the first occasion they neither responded nor sought to make contact with the Tribunal. It observed that the respondents had likewise not attended an interview before the delegate's decision was made, although they had been invited to do so. The second letter from the Tribunal, inviting the respondents to appear, contained advice that if they did not attend the scheduled hearing the Tribunal might proceed to make its decision without further reference to them. It provoked no response. Expressing itself satisfied that the invitation had been sent to the respondents' last known address, the Tribunal decided to make its decision on the review. That decision was adverse to the respondents.

6 The primary judge in the Federal Circuit Court (Judge Barnes) concluded that the Tribunal's decision was legally unreasonable 2. Her Honour reasoned that the Tribunal could not have been satisfied that the letter inviting the respondents to attend the hearing had been received by them; the attendance of the respondents at the hearing was important to them; and the Tribunal could have attempted some further communication with them without difficulty. In these circumstances the Tribunal should have taken some other action before proceeding to make its decision on the review.

7 The first aspect of the primary judge's reasoning directs attention to the preconditions to the exercise of the power given by s 426A rather than to the decision which results and whether it may be said to be unreasonable. The reasons overlook that it is the intention of the scheme of the Migration Act that the Tribunal be permitted to consider the exercise of its powers under s 426A if those preconditions are met.

8 In this case those preconditions were met. The invitation required by s 425 was given by one of the methods specified in s 441A, as s 425A requires. Moreover, s 441C has the effect that a person is deemed to have received a document given by one of the methods so specified. There was nothing before the Tribunal to suggest to the contrary of that state of affairs. It was entitled to proceed to consider the exercise of its powers under s 426A.

9 It is difficult to see how it might be concluded that the decision that the Tribunal then made – not to make further contact with the respondents and adjourn its hearing for that purpose – was unreasonable. To the contrary, it was perfectly explicable given the history of the respondents' non-responsiveness. It is to be inferred that a conclusion that it was unreasonable must involve some misapprehension of what is comprehended by the legal standard of unreasonableness.

10 In the joint judgment in Minister for Immigration and Citizenship v Li 3 it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at 4, although an inference of unreasonableness is not to be

drawn only where a decision appears to be irrational 5. None of these descriptions could be applied to the Tribunal's decision in the present case

11 Statements such as that made in the Wednesbury case 6, that a decision may be regarded as unreasonable if no reasonable person could have made it, may not provide the means by which a conclusion of unreasonableness may be arrived at in every case. But it serves to highlight the fact that the test for unreasonableness is necessarily stringent 7. And that is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. The question is where that area lies.

12 In Minister for Immigration and Citizenship v Li 8 reference was made to what had been said in Klein v Domus Pty Ltd 9 regarding the need to look to the purpose of the statute conferring the discretionary power. Where it appears that the dominating, actuating reason for the decision is outside the scope of that purpose, the discretion has not been exercised lawfully. But this is not to deny that within the sphere of the statutory purpose there is scope for a decision-maker to give effect to the power according to his or her view of the justice of a case, without interference by the courts.

13 The Migration Act 10 requires the Tribunal, in carrying out its functions, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. In reviewing a decision the Tribunal is required to act according to substantial justice and the merits of the case 11. Clearly enough s 426A is directed to the aims of efficiency contained within these objectives, although it is not to be exercised in a way which would be contrary to the others. Consistently with what has earlier been discussed, it is to be understood that the Tribunal has a degree of latitude in determining what is fair and just in a given case.

14 In Minister for Immigration and Citizenship v Li, it was accepted that the Migration Review Tribunal is to act in an efficient manner 12. This did not explain why that Tribunal decided abruptly to conclude the review when the applicant had requested time to allow the outcome of a relevant assessment, one which might favour the review of her application, to be known. It was not obvious how the Tribunal had reached its decision not to exercise its discretionary power to adjourn the hearing, but it was to be inferred that some error in reasoning had led to what was plainly an unjustifiable and unreasonable decision. In this case the basis for the Tribunal's decision is apparent. The decision is plainly justified by reference to it.

15 The crux of the primary judge's reasoning concerning the exercise of the power given by s 426A appears to be that the Tribunal should have exercised it in the respondents' favour because, in a practical sense, it could have done so. This analysis fails to identify an unreasonable decision in the sense explained above. The...